The Oklahoma Bar Journal October 2026

ALSO INSIDE: Annual Meeting • Volunteer for Heroes Day Mona Salyer Lambird Spotlight Award Winners Honored

Volume 97 — No. 8 — October 2026

Government & Administrative Law Practice

contents October 2026 • Vol. 97 • No. 8

THEME: G overnment & A dministrative L aw P ractice Editor: Martha Rupp Carter On the Cover: Oklahoma State Capitol, photo by Emily Buchanan Hart

FEATURES Charter Authority B y G unner B riscoe

DEPARTMENTS

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From the President Bar News in a Minute

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Disability Benefits: Navigating the Procedural and Substantive Processes D eirdre D exter and J essica T ait Public Construction Under the Oklahoma Public Competitive Bidding Act: Municipal Compliance from Bid to Completion B y C hase M c B ride Efficiency and the Open Records Act B y C hristian R inehart Due Process and Requests for Affirmative Relief Within the Oklahoma Tax Commission B y M arina W ise Function Over Form: Oklahoma’s Errant Functionalist Separation of Powers Approach B y J ohn T yler H ammons

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From the Executive Director

Law Practice Tips

Board of Governors Actions Oklahoma Bar Foundation News

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102 Bench & Bar Briefs 104 In Memoriam 107 Editorial Calendar

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108 Classified Ads 112 The Back Page

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PLUS

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Annual Meeting Women in Law Committee Sign Up

Access to Justice Summit Sign Up for Heroes Day

PAGE 50 – Annual Meeting

Pro Bono: A Promise of Justice for All F rom the P resident By Amber Peckio

A S LAWYERS, WE ARE FORTUNATE TO practice in a profession built on the principle that the law should serve everyone – not just those who can afford an attorney. Yet for too many peo ple, access to justice remains out of reach simply because they cannot afford legal representation. That is why pro bono service is not merely an admirable contribution to our communities. It is an essential part of ensuring that our justice system works as it should. The need is significant. According to the Legal Services Corporation, low-income Americans received no or inadequate legal help for 92% of the civil legal problems that substantially affected their

enhance the public trust by providing quality legal services to those in need. It is an opportunity to put our skills to work for someone who otherwise may have no meaningful opportunity to be heard. One case can make an enormous difference. A few hours spent answering questions at a legal clinic can help someone understand their rights. Helping a victim of domestic violence obtain legal protection can provide a path toward safety. Representing a family facing the loss of their home can help keep that family housed. Drafting a will for an emergency responder can pro vide peace of mind and protection for loved ones. These are not simply legal services. They are oppor tunities to change lives. Our inaugural Heroes Day Event, co-sponsored by the OBA Military Assistance Committee and the Oklahoma Access to Justice Foundation, will take place this Veterans Day, Nov. 11 from 10 a.m. to 2 p.m. This will be an in-person clinic providing a wide range of pro bono legal services to those who have honorably served our nation. Learn more and see volunteer registration information on page 83 of this journal.

lives. 1 These problems are not abstract legal questions. They involve housing, health care, income, family matters, safety, and other issues that can fundamentally alter a person’s life. For someone facing eviction, trying to protect a child, seeking ben efits, dealing with domestic violence or fighting to keep a home, the legal system can be complicated and intimi dating. Without an attorney, navigating that system can feel nearly impossible. And unlike in criminal cases, there generally is no constitu tional right to an attorney in civil matters, even when the consequences are profound. This is where each of us can make a difference. Pro bono is a great way to

Amber Peckio is a solo practitioner with the Amber Law Group of Tulsa. 918-895-7216 amber@amberlawgroup.com

(continued on page 85)

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THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2026 Oklahoma Bar Association. Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. Advertisers are solely responsible for the content of their ads, and the OBA reserves the right to edit or reject any advertising copy for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Information about submissions can be found at www.okbar.org. BAR CENTER STAFF Janet K. Johnson, Executive Director ; Gina L. Hendryx, General Counsel ; Julie A. Bays, Director of Management Assistance Program ; Chris Brumit, Director of Administration ; Beverly Petry Lewis, Administrator MCLE Commission ; Gigi McCormick, Director of Educational Programs ; Lori Rasmussen, Director of Communications ; Richard Stevens, Ethics Counsel ; Robbin Watson, Director of Information Technology ; John Morris Williams, Executive Consultant ; Loraine Dillinder Farabow, Jamie Jagosh, Katherine Ogden, Heidi M. Silcox, Assistant General Counsels Barbara Acosta, Les Arnold, Jordyn Banta, Gary Berger, Hailey Boyd, Cassie Brickman, Amber Brumit, Cheryl Corey, Lauren Davis, Nickie Day, Ben Douglas, Melody Florence, Matt Gayle, Emily Buchanan Hart, Steve Jagosh, Debra Jenkins, LaRica Krischel, Rhonda Langley, Durrel Lattimore, Renee Montgomery, Jaycee Moseley, Tracy Sanders, Mark Schneidewent, Ben Stokes, Krystal Willis, Laura Willis & Roberta Yarbrough Oklahoma Bar Association 405-416-7000 Toll Free 800-522-8065 FAX 405-416-7001 Continuing Legal Education 405-416-7029 Lawyers Helping Lawyers 800-364-7886 Mgmt. Assistance Program 405-416-7008 Mandatory CLE 405-416-7009 Board of Bar Examiners 405-416-7075 Oklahoma Bar Foundation 405-416-7070 www.okbar.org Ethics Counsel 405-416-7055 General Counsel 405-416-7007

Volume 97 — No. 8 — October 2026

JOURNAL STAFF JANET K. JOHNSON Editor-in-Chief janetj@okbar.org LORI RASMUSSEN Managing Editor lorir@okbar.org EMILY BUCHANAN HART Assistant Editor emilyh@okbar.org LAUREN DAVIS Advertising Manager advertising@okbar.org HAILEY BOYD Communications Specialist haileyb@okbar.org

BOARD OF EDITORS MELISSA DELACERDA, Stillwater, Chair BECKY R. BAIRD, Miami MARTHA RUPP CARTER, Tulsa CHRISTOPHER B. HAUGER, Wewoka MELANIE WILSON RUGHANI, Oklahoma City EVAN A. TAYLOR, Norman

MAGDALENA A. WAY, El Reno ALEX C. WILSON, Muskogee DAVID E. YOUNGBLOOD, Atoka

OFFICERS & BOARD OF GOVERNORS

AMBER PECKIO, President, Tulsa; JANA L. KNOTT, President-Elect, El Reno; S. SHEA BRACKEN, Vice President, Edmond; D. KENYON WILLIAMS JR., Immediate Past President, Sperry; MOLLY A. ASPAN, Tulsa; BENJAMIN J. BARKER, Enid; CODY J. COOPER, Oklahoma City; KATE N. DODOO, Oklahoma City; PHILIP D. HIXON, Tulsa; CHRIS D. JONES, Durant; CHAD A. LOCKE, Muskogee; KRISTY E. LOYALL, El Reno; BLAYNE P. NORMAN, Wewoka; WILLIAM LADD OLDFIELD, Ponca City; JEFF D. TREVILLION, Oklahoma City; LUCAS M. WEST, Norman; ALEXANDRA J. GAGE, Chairperson, OBA Young Lawyers Division, Tulsa The Oklahoma Bar Journal (ISSN 0030-1655) is published monthly, except June and July, by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, Okla. and at additional mailing offices. Subscriptions $85 per year. Law students registered with the OBA and senior members may subscribe for $45; all active members included in dues. Single copies: $8.50 Postmaster Send address changes to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036.

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B ar N ews in a M inute

REGISTER FOR THE 2026 OBA ANNUAL MEETING The 2026 OBA Annual Meeting will be held Nov. 11-13 at the Sheraton Oklahoma City Downtown Hotel. During this year’s meeting, a variety of CLE will be offered, bar business will be conducted, and the annual OBA Awards will be presented. Read more about this year’s meeting on page 50 of this issue. Register now or sponsor the conference at okbar.org/annualmeeting.

IMPORTANT UPCOMING DATES Be sure to docket these important upcoming events: Launching Your Law Practice will be held on Thursday, Oct. 29, at the bar center in Oklahoma City. This is a no-cost, semiannual workshop for new lawyers and lawyers opening their own law practice. Register by emailing Nickie Day at nickied@okbar.org or by calling 405-416-7050. Learn more at www.okbar.org/oylp. OBA Heroes Day, a free legal clinic for veterans, will be held at the Oklahoma Bar Center on Nov. 11.

LHL DISCUSSION GROUPS TO HOST NOVEMBER MEETINGS Monthly Discussion Group : The Oklahoma City Lawyers Helping Lawyers monthly discussion group will meet Nov. 6 at the office of Tom Cummings, 701 NW 13th St. The Tulsa group will meet Nov. 12 at the office of Scott Goode, 1437 S. Boulder Ave., Ste. 1200. Women’s Discussion Group : The Tulsa women’s discussion group will meet Nov. 17 at the office of Scott Goode, 1437 S. Boulder Ave., Ste. 1200; the Oklahoma City women’s discussion group will meet Nov. 19 at the first floor conference room of the Oil Center, 2601 NW Expressway. Each meeting is facilitated by committee members and a licensed mental health professional. The small group discussions are intended to give group leaders and participants the opportunity to ask questions, provide support and share information with fellow bar members to improve their lives – professionally and personally. Visit www.okbar.org/lhl for more informa tion, and keep an eye on the OBA events calendar at www.okbar.org/events for upcoming discussion group meeting dates. Volunteer attorneys are needed. Visit https://bit.ly/4xCz10G to volunteer. The OBA Annual Meeting will be held at the Skirvin Hotel in Oklahoma City on Nov. 11-13. Registration is now open! Visit www.okbar.org/annualmeeting for more information. The Oklahoma Bar Center will be closed for usual business on Wednesday, Nov. 11, in observance of Veterans Day (we will also be hosting a special event that day, see information about Heroes Day above). The bar center will also be closed Thursday and Friday, Nov. 26-27, in observance of the Thanksgiving holiday.

LET US FEATURE YOUR WORK We want to feature your work on “The Back Page” and the Oklahoma Bar Journal cover! All entries must relate to the practice of law and may include articles, reflections or other insights. Poetry, photography and artwork connected to the legal profession are also welcome. Photographs and artwork relating to featured topics may also be published on the cover of the journal. Email submissions of about 500 words or high-resolution images to OBA Communications Director Lori Rasmussen at lorir@okbar.org.

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LAUNCHING YOUR LAW PRACTICE

CONNECT WITH THE OBA THROUGH SOCIAL MEDIA Are you following the OBA on social media? Keep up to date on future CLE, upcoming events and the latest information about the Oklahoma legal community. Connect with us on LinkedIn, Facebook and Instagram. WRITE FOR THE BAR JOURNAL TO EARN MCLE CREDIT Recently, the Oklahoma Supreme Court amended the rules for mandatory continuing legal edu cation to include writing scholarly articles that are published in the Oklahoma Bar Journal . The MCLE Commission will award 6 credits per published article for each contributing author. Contact OBA Communications Director and Oklahoma Bar Journal Managing Editor Lori Rasmussen at lorir@okbar.org to learn more about this opportunity. Visit https://bit.ly/3ZepRZ3 to read the Supreme Court order. chairperson, has set a public hearing on the 2027 OBA budget for 4 p.m., Monday, Oct. 12, at the Oklahoma Bar Center, 1901 N. Lincoln Blvd., in Oklahoma City. 2027 PROPOSED BUDGET Pursuant to Article VII, Section 1 of the Rules Creating and Controlling the Oklahoma Bar Association, Jana L. Knott, presi dent-elect and Budget Committee

On Oct. 29, join the OBA Management Assistance Program for Launching Your Law Practice: A Hands-On Workshop. This is a no-cost, semiannual event for new lawyers, those returning to private practice or those venturing out on their own. This day-long workshop will address resources for designing a client-centered firm, improving workflows using AI, business planning and more. Learn more at www.okbar.org/launching-your-law-practice.

OBA MEMBER AND PROLIFIC AUTHOR BOB BURKE HONORED The Oklahoma County Law Library in September marked a historic milestone with the formal dedication of a new reading room and per manent collection honoring Bob Burke, a prominent Oklahoma attorney, prolific historian and dedicated member of the legal community. Hosted in partnership with the Oklahoma County Bar Association, this dedication recognizes Mr. Burke’s extraordinary contributions to pre serving the rich heritage of the Oklahoma bench and bar. Mr. Burke has authored more than 150 books documenting the state’s legal milestones, foundational biographies and cultural history. By donating his extensive personal catalog of published works to the library, Mr. Burke has ensured that these invaluable historical and legal resources remain permanently accessible to practitioners, legal scholars and the public alike. Notable members of the bench and bar gather to recognize Bob Burke on Sept. 10 at the Oklahoma County Law Library. From left: Howard K. Berry III, Justice Noma Gurich, Retired Justice Yvonne Kauger, Bob Burke, OBA President Amber Peckio, Justice Dana Kuehn and OCBA President Judge Anthony Bonner.

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G overnment & A dministrative L aw P ractice

Charter Authority By Gunner Briscoe

T HERE ARE TWO CATEGORIES OF MUNICIPALITIES: those governed by statute and those governed by special charters. 1 A “charter municipality” is defined as “any munic ipality which has adopted a charter in accordance with the provisions of the Constitution and laws of Oklahoma and at the time of adoption of the charter had a population of two thousand (2,000) or more.” 2 In contrast, a statutory city is one governed by Oklahoma Municipal Code. 3 Charter municipalities are vested with considerable degree of autonomy: “[w]ithin the limitations prescribed by the Constitution, it was clearly the intent of the framers…to delegate local self-government to cities under a charter form of government in a larger measure and to a greater extent than is accorded cities existing under general law.” 4

While most may intuitively say state law always supersedes municipal law, that is not always the case. The Oklahoma Constitution provides that a duly ratified munic ipal charter, upon gubernatorial approval, shall “become the organic law of such city.” 5 The Legislature, in enacting this constitutional provision, has provided that “[w]henever a charter is in conflict with any law relating to municipal ities in force at the time of the adop tion and approval of the charter, the provisions of the charter shall prevail and shall operate as a repeal or suspension of the state law or laws to the extent of any conflict.” 6 By approving the municipality’s charter, “the state has surrendered a portion of its authority by giving home-rule cities sovereignty over their ‘municipal affairs’.” 7 This preemption applies only when there is a conflict between provisions of

charter and state law and conflicts are not idly found. A court will not find a conflict between a properly enacted municipal charter and a state law unless “each contains ‘express or implied conditions which are inconsistent and irreconcilable… if either is silent where the other speaks there can be no conflict.” 8 In explaining the preemptive power of municipal charters, the Oklahoma Supreme Court has anal ogized a municipal charter with a constitution. 9 As an analog to a con stitution, it “supersedes the laws of the state regarding ‘merely munic ipal affairs’.” 10 This line between “general matters of the state and its government” and “merely municipal affairs” “is the judicially accepted boundary between the domain in which the legislature is supreme and that in which the cities may insist upon independence.” 11 “The determinative question is

whether the issue involves a matter that is purely municipal, or whether there is a wider public interest.” 12 The clearest place where charter provisions will preempt is pertain ing to conflicts between statute and charter relating to governing of the municipality. 13 Indeed, the Court of Civil Appeals went so far as to say such conflicts are the only conflicts that will result in charter preemption. 14 These are “procedural aspects of governing and to the form of governing” not relating to “substantive rights, duties and liabilities which the citizens of the state hold in com mon.” 15 Nevertheless, the reach of charter preemption can be broad examples including: competitive bidding requirements; 16 street improvement districts; 17 dual office holding prohibition; 18 removal of a municipal judge; 19 widening of a state highway within city limits; 20

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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ENDNOTES

1. See, e.g., Question submitted by: The Honorable James E. Covey, State Representative, District 57, 2004 OK AG 15, ¶2 2. Okla. Stat. tit. 11 §1-102(1) 3. 2004 OK AG 15 ¶5 (citation omitted) 4. City of Tulsa v. Public Employees Relations Bd., 1990 OK 114 ¶9 (citation omitted) 5. Okla. Con. Art. 18 §3(a) 6. Okla. Stat. tit. 11 §13-109; See also, Okla. Stat. tit. 11 §1-102(1) (“Once a municipal charter has been adopted and approved, it becomes the organic law of the municipality in all matters pertaining to the local government of the municipality and prevails over state law on matters relating to purely municipal concerns[.]”) 7. Edwards v. City of Sallisaw, 2014 OK 86 ¶11 8. Thomas v. Oklahoma City, 1998 OK CIV APP 14, ¶7 (citing Moore v. City of Tulsa, 1977 OK 43) 9. City of Tulsa v. Public Employees Relations Bd., 1990 OK 114 ¶10 10. Id. 11. Id. 12. Id. (citation omitted) 13. City of Chickasha v. Arkansas Louisiana Gas Co., 1981 OK CIV APP 5, ¶7 14. Id. 15. Id. 16. U.S. Elevator Corp. v. City of Tulsa, 1980 OK 69 17. Moore Funeral Homes, Inc. v. City of Tulsa, 1976 OK 96 18. Question Submitted by: Robert E. Jones, Jr., Executive Director, Firefighters Pension and Retirement System, 2008 OK AG 15 19. Hampton v. Hammons, 1987 OK 77, ¶26 20. Id. 21. Town of Luter v. State, 1967 OK 59 22. Id. 23. Edwards v. City of Sallisaw, 2014 OK 86 ¶10 (citing Thurston v. Caldwell , 1913 OK 714 ¶10) 24. See, Question Submitted by: The Honorable Pual Taliaferro, Oklahoma State Senate, 1981 OK AG 213 ¶4 (likening the application of charter preemption to “beating a path through a jungle.”); Edwards v. City of Sallisaw, 2014 OK 86 ¶11 (“The line between chiefly municipal affair and a sovereign state interest is not well illuminate.”) 25. Question Submitted by: The Honorable Homer F. Rieger, Oklahoma House of Representatives, 1981 OK AG 90, ¶7 26. City of Enid v. Public Employees Relations Board, 2006 OK 16, ¶22 (citing Lackey v. State, 1911 OK 270, ¶20) 27. Kingfisher v. Oklahoma, 1998 OK CIV APP 39 28. Question Submitted by: The Honorable Paul Wesselhoft, State Representative, District 54, 2005 OK AG 27 29. Fossett v. State, 1926 OK CR 150 30. Question Submitted by: The Honorable Frank Harbin, Oklahoma House of Representatives, 1981 OK AG 287 31. Thomas v. Oklahoma City, 1998 OK CIV APP 14, ¶7 32. Question Submitted by: The Honorable Pual Taliaferro, Oklahoma State Senate, 1981 OK AG 213, ¶2

Ordinances authorized by charters may run concurrent with the general laws of the state but not counter to it when addressing matters of statewide interest. 32

cities have full power of local gov ernment and may enact ordinances to protect the public peace, order, health, morals, and safety, even though state statutes may address the same subjects.” 31 Ordinances authorized by charters may run concurrent with the general laws of the state but not counter to it when addressing matters of state wide interest. 32 Legal practitioners involved in municipal law – whether challeng ing municipal act, defending those acts, or advising municipalities – should stay cognizant of the authority vested in municipal charters. In particular, they should: 1) discern whether a municipality has a charter; 2) determine if the charter conflicts with state law; and, if so, 3) analyze whether it is a matter of purely municipal concern or a matter of statewide interest.

when ordinances take effect; 21 and the form of city government the municipality adopts. 22 Municipal preemption is not unbounded, however. “[M]unicipal authority can be overcome despite ‘chiefly local interest’ if ‘the state has a sovereign interest’ in the munic ipal matter.” 23 This line between “chiefly municipal affairs” and “sovereign state interest” is murky at best. 24 Indeed, “many courts have acknowledged that they deliberately refuse to define the terms ‘munic ipal affairs’ and ‘state affairs’ in order that each case as it arises may be considered on its own facts[.]” 25 If the legislation “involves matters of the state at large” or if it “affects its people generally” state legislation will not be preempted by munici pal charters. 26 Examples where the state’s sovereign interest over come “local interest” include: the Open Meetings Act; 27 regulation of dangerous or potentially dangerous dogs; 28 the court a municipal con viction is appealed to; 29 and school board elections. 30 Aside from preempting conflict ing state law pertaining to munici pal concerns, “[c]hartered home-rule

ABOUT THE AUTHOR

Gunner Briscoe is a municipal judge for Oklahoma City’s Municipal Criminal Court of Record.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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G overnment & A dministrative L aw P ractice

Disability Benefits: Navigating the Procedural and Substantive Processes By Deirdre Dexter and Jessica Tait

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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M OST OF US ANTICIPATE THAT OUR INTERACTIONS with the Social Security Administration (SSA) will be limited to enrolling in Medicare at age 65 and applying for retirement benefits. Unfortunately, many people are required to deal with the SSA due to a catastrophic injury or health issue. At those times, knowing the ins and outs of disabil ity under the SSA rules and regulations is critical. Whether for yourself, a loved one, or an injured or incapacitated client, it is likely that at some point in your legal career, you may encounter and need at least some understanding of the SSA disability rules and regulations to apply for and receive disability benefits.

that is covered by Social Security and for which Social Security taxes have been paid. The actual threshold for credits is low, e.g., in 2026, you will earn the maximum four credits available annually by earning at least $7,560 for the year. The purpose of Title II benefits is financial protection for workers who have contributed to the Social Security trust fund, i.e ., have paid into FICA, the federal payroll tax that funds Social Security and Medicare programs, and have had their earned income interrupted by disability. In contrast, SSI benefits are for individuals who have lim ited income and resources. 4 While these eligibility determinations are important, the focus of this article

is the actual rules regarding dis ability rather than eligibility, so no further discussion of the eligibility requirements is included herein.

UNDERSTANDING SOCIAL SECURITY DISABILITY BENEFITS Disability benefits are separated into two types: Social Security Disability Insurance (SSDI), Title II of the Social Security Act, 1 and Supplemental Security Income (SSI), Title XVI of the Social Security Act. 2 The eligibility rules for each are different. Generally, to be eligible for SSDI, you must be “insured,” meaning that you have earned at least 40 work credits, 20 of which were earned in the last 10 years, although younger workers may qualify with fewer credits. 3 Work credits are determined by your total annual wages or self- employment income from a job

THE SEQUENTIAL EVALUATION PROCESS

Disability is defined under both Title II and XVI as the inability to engage in any substantial gainful activity (SGA) 5 because of a med ically determinable physical or mental disability(ies) that is either expected to result in death or has lasted or is expected to last for a continuous period of at least 12 months. 6 In making the disability determination, SSA’s regulations provide a procedure known as the “sequential evaluation process” for

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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activities. 10 Nonsevere impairments, in contrast, do not significantly limit one’s ability to do basic work activities. 11 Importantly, the agency only considers physical and mental impairments that are medically determinable, meaning the impair ment(s) must result from anatomi cal, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques, i.e ., objective medical evidence from an acceptable medical source. 12 The claimant’s allegation of symptoms, as well a diagnosis or a medical opinion standing alone is not suf ficient to establish the existence of an impairment(s); 13 it is imperative that objective evidence is provided to support a finding that the claim ant has a medically determinable impairment (MDI). If the claimant does not provide objective evidence showing a severe, medically deter minable impairment(s) (or a combi nation thereof), the claimant is not disabled and the analysis ends. Step Three: Does the Impairment Meet or Equal a Listing? If the claimant does have a severe medically determinable impair ment(s), step three of the sequen tial evaluation process requires a finding whether the claimant’s impairment(s) meets or medically equals a listing. 14 The listings are divided into 14 separate body systems (cardiovascular – listing 4.00, neurological – listing 11.00, musculoskeletal – listing 1.00, etc.), including mental, and each body system is further sorted into specific impairments. 15 The listings contain the medical criteria that apply to the evaluation of impairments and the determination of whether a listing is met or “medically equaled.” 16 If the claimant’s impairments meet or

medically equal a listing, they are considered severe enough to pre vent the claimant from performing any substantial gainful activities, and the claimant is disabled. For example, if a claimant has a severe MDI of heart failure, the medical evidence will be evaluated under listing 4.02, which addresses chronic heart failure and requires certain findings on appropriate medically acceptable imaging such as x-rays, echocardiography, radionuclide studies, or cardiac catheterization. If the claimant’s impairment does not meet the specific requirements of a listing but the totality of the evidence shows that the impairment is at least equal in severity and duration to the criteria of any listed impairment, disability can be based on a finding of medical equivalence. Step Four: Can the Claimant Perform Past Relevant Work? If the claimant does not meet or medically equal a listing, the analysis proceeds to step four, which considers the claimant’s residual functional capacity (RFC) and past relevant work (PRW). A claimant’s RFC sets out those daily activities that the claimant can still do on a regular and continu ing basis (eight hours a day, five days per week or the equivalent) despite their impairments and symptoms. 17 The RFC assessment contemplates the claimant’s ability to meet the physical (How long can the claimant stand and walk? How much can they lift? Can they climb stairs? How often can they use their hands?), mental (Can the claimant interact with the public? Can they concentrate for a full workday? Can they tolerate changes in routine?), sensory (Can the claimant communicate? Can they read print or see hazards?),

disability evaluation. 7 For adults, this is a consecutive five-step process and if the SSA can find the individual, known as the claimant, disabled or not disabled at a step, the agency will make its deter mination or decision and will not go on to the next step. If the SSA cannot find that the claimant is disabled or not disabled at a step, it will go on to the next step. Step One: Is the Claimant Engaged in Substantial Gainful Activity? Step one of the sequential eval uation process asks: Is the claimant engaging in SGA? If the claimant is working, and the work performed is SGA, they are not disabled regard less of their medical condition or their age, education, and work experience. 8 Essentially, the agency will review the claimant’s earnings records, and if there is evidence that the claimant is working or worked after the disability application was filed, and earnings exceed a certain monthly amount, which is codified in the regulations, the inquiry is finished, and the claimant is not disabled. For example, for calen dar year 2025, if countable earn ings average more than $1,620 per month, those earnings are SGA. 9 Step Two: Does the Claimant Have a Severe Medically Determinable Impairment? If the claimant is not working or is working but not at SGA, step two of the sequential evaluation process asks: What is the severity of the claimant’s impairment(s), both mental and physical? Severity has two components: duration (the impairment must result in death or last at least 12 months) and evidence that the impairment significantly limits the claimant’s physical or mental ability to do basic work

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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and other requirements of work. Physical exertion requirements are categorized as sedentary, light, medium, heavy, and very heavy work. 18 Nonexertional limitations are categorized as mental, pos tural, manipulative, environmen tal, communicative, and visual. 19 The residual functional capacity is “based on all the relevant evi dence” in the file, 20 which includes not only evidence of severe MDIs but nonsevere as well, in addition to the claimant’s report of daily activities, medical source state ments, lay evidence, and more. 21 Once assessed, the residual functional capacity is compared to the claimant’s vocational back ground, which is described as PRW. PRW is defined as work performed within the past five years 22 that was performed at substantial gainful activity and performed long enough to learn it, which means the worker “gained sufficient job experience to learn the techniques, acquire infor mation, and develop the facility needed for average performance in the job.” 23 If work was started and stopped in fewer than 30 calendar days, it is not PRW. 24 The time it takes to learn a job is typically expressed using a specific voca tional preparation (SVP) number, ranging from one to nine, where SVP 1 (unskilled) requires only a short demonstration, while SVP 9 (highly skilled work) generally requires the job be performed for over 10 years. For example, learning to be proficient at the job of fast-food cashier (unskilled, SVP 2) will take much less time than learning to be proficient as an attorney (highly skilled, SVP 8). If the claimant has the residual functional capacity to perform PRW, they are not disabled, and the sequential evaluation pro cess moves to the final step. 25

If the claimant does not meet a grid rule, in other words, if the claimant cannot be found disabled based on exertional limitations alone, the claim is not denied.

For example, if the claimant is 55 years of age or older, with a ninth-grade education, no PRW, and with an RFC to perform light work (defined as six hours of standing and/or walking during the workday and lifting no more than 20 pounds) then the claimant “grids” disabled under rule 202.01. If a claimant is limited to sedentary work (defined as sitting six hours during the day and lifting no more than 10 pounds) and is 50 years of age or older (but not yet age 55) with a ninth-grade education and no PRW, the grid rules will direct a finding that the claimant is dis abled (Rule 201.09). When consider ing PRW, if that work is semiskilled or skilled, and depending on the claimant’s age, education, and RFC, an analysis of whether the claimant acquired any transferrable skills may also be necessary. 31 When the Claimant Doesn’t Meet a Grid Rule If the claimant does not meet a grid rule, in other words, if the claimant cannot be found disabled based on exertional limitations alone, the claim is not denied. Instead, all the claimant’s exer tional and nonexertional (including

Step Five: Can the Claimant Perform Other Work?

Step five considers not whether the claimant can return to PRW, but rather if there is any other work in the national economy 26 that the claimant can perform given the RFC in combination with their age, education, 27 and work experience. 28 Age is divided into three catego ries: younger (under 50), closely approaching advanced age (50-54), and advanced age (55 or older). 29 In order to promote consistency in disability determinations/ decisions, the agency has published medical-vocational guidelines, referred to as the “grid rules.” The grid rules are three tables repre senting sedentary (Table 1/Rule 201.00), light (Table 2/Rule 202.00), and medium (Table 3/Rule 203.00) exertional work, and each table is further divided into age catego ries, education, and previous work experience. These rules answer the question of whether the claimant can perform other work in the national economy by directing certain findings (disabled vs. not disabled) based on the combination of RFC (considering only exertional limitations), age, education, and past work experience. 30

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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providers depending on the nature of the medical issues involved (such as a psychiatrist, neurologist, primary care provider, surgeon, etc.). If the claimant’s own medical sources cannot or will not provide sufficient medical evidence about their impairment, the disability examiner may order a physical or mental examination, typically called a consultative examination (CE), at the agency’s expense to be performed by a qualified medical source. 34 It is important that the claimant attend a CE scheduled by DDS because failure to attend without good cause may (and often does) result in a finding that the claimant is not disabled. INITIAL DETERMINATIONS AND RECONSIDERATION Once all the evidence, medi cal and otherwise, is in the file, the disability examiner, typically along with a state agency medical and/or psychological consultant, will decide the claim using the sequential evaluation process 35 and issue the initial determination with notice to the claimant. 36 If the claimant is found disabled and awarded benefits, the disability process is generally completed unless the claimant returns to work, is later found to have medical improvement, or another disquali fying event is found to exist. 37 If the application is denied at the initial level, the claimant may request reconsideration of the initial deter mination generally within 60 days after the date the determination notice is received, which is the first step in the administrative review process. 38 Timely reconsideration requests are typically granted. At reconsideration, a new disability examiner, typically along with a new state agency

SSA-827). The latter will allow the office to obtain copies of medical records from the claimant’s medi cal providers. Once the field office determines that the claimant meets the nonmedical requirements, the claim is forwarded to the state-level agency, Disability Determination Services (DDS), which the federal government funds, where a dis ability examiner will review all the evidence in the file and issue a determination following the regula tions under Title II and Title XVI. 33 The DDS level is where medical evidence begins to play a crucial role in the disability process because, as noted above, the agency requires objective medical evidence from an acceptable medical source and will not rely on the claimant’s allegation of symptoms, a diagno sis, or a medical opinion to find a claimant is disabled. The best source of medical evidence about the nature and severity of the claimant’s impairment(s) will be the claimant’s own medical sources who have evaluated, examined, or treated the claimant. The claim ant may have several healthcare

mental) limitations will be consid ered together to determine what the claimant is still able to do function ally. The grid rules (Tables 1, 2, and 3), which again consider the claim ant’s residual functional capacity, age, education, and PRW, are then used as a framework to determine if the claimant is disabled. 32 BEGINNING THE DISABILITY APPLICATION PROCESS To begin the disability process, an application must be submitted to the state-level local field office. This can be done by calling 1-800-772-1213 or by submitting an application online at www.ssa.gov/disability. The SSA is encouraging everyone to establish a mySSA.gov account, which provides access to services and forms and the ability to manage benefits online at any time. After the application is filed, the field office will call and interview the applicant and request certain documents be signed, such as a “Work History Report” (Form SSA-3369-BK) and an “Authorization to Disclose Information to the Social Security Administration” form (Form

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Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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testimony that characterizes that past work, if any. After that, the ALJ will propose hypothetical RFCs based on the evidence at the hearing based on both the medical records and the claimant’s testimony. 44 An example of such a hypothetical would be: “Assume a hypothetical individual who is 53 years old, with a high school education and with PRW as previously described. This hypothetical person can lift up to 10 pounds and can stand and/or walk up to two hours in an eight hour workday. This hypothetical individual is able to occasionally climb ramps and stairs and is able to frequently stoop, kneel, crouch, and crawl. The hypothetical person cannot interact with the public.” The hypothetical is posed to the VE, who will determine if the hypo thetical individual can perform the claimant’s past work given the lim itations. The VE will also determine if the claimant has any transferrable skills to other work at step five. If the claimant cannot return to or has no PRW, the VE will provide jobs that exist in the national economy 45 (step five), if any, that the claimant is capable of performing despite their limitations. If the claimant is able to perform work in the national economy, despite the medically determinable impairments, then the claimant is not disabled and benefits will be denied. 46 The Social Security disability process is long and requires the claimant’s participation through out to provide information about medical treatment, work history, and activities of daily living, to attend CEs if ordered, to attend the hearing, and to communicate with the agency. The disability process is not an adversarial proceeding, and disability hearings do not take place in a court of law, although all

medical and/or psychological consultant, will review the evi dence in the file at the time of the initial determination, along with updated medical records, if any, the latter of which could alter the outcome from a denial of bene fits to an award. As at the initial level, DDS will issue a reconsid eration determination and send notice to the claimant. If benefits are denied at reconsideration, the claimant may file a request for hearing 39 before an administrative law judge (ALJ) within 60 days after the date the determination notice is received, which moves the case to the hearing office. 40 The hearing office will set the case for hearing with ample notice to the claimant and representative, if any. 41 At the hearing, the ALJ will take testimony from the claimant and a vocational expert (VE), an impartial vocational professional with whom the agency contracts. 42 While ALJs are expected to be able to read and comprehend medical evidence, in certain instances, for example if the claimant has an uncommon medical impairment, the ALJ might engage a medical expert via interrogatories or hear ing testimony to better understand the medical evidence in the case. A medical expert will review the medical evidence before the hearing (or when issued interrog atories) and offer both factual and expert opinion evidence based on knowledge of SSA’s rules. 43 The vocational experts provide testimony at steps four and five. During the hearing, the ALJ will ask the claimant to describe work performed during the five-year period leading up to the hearing. This testimony, along with any work history reports in the file, will form the basis for the VE to provide

participants in the hearing will be sworn to testify truthfully under penalty of perjury. While there is no requirement that a claimant have a representative assist during the disability process, disability attorneys and nonattorney rep resentatives can be helpful in obtaining medical evidence, pre senting the claimant’s allegations and arguments at the hearing, and ensuring filing deadlines are timely met. 47

ABOUT THE AUTHORS

Deirdre O. Dexter has been a member of the OBA since 1984 and has practiced law with private firms and governmental

agencies as well as serving as city attorney for the city of Tulsa and district judge for Tulsa County. Prior to retiring in June 2025, Ms. Dexter had served for more than a decade as an administrative law judge for the Social Security Administration. Jessica Tait graduated from the TU College of Law in 2011. She has worked as an attorney advisor for the Social Security Administration since 2017. 3. 20 CFR §§404.130 et seq. 4. 20 CFR §§416.203 et seq. 5. SGA is doing significant and productive physical or mental duties for (or intended for) pay or profit. See 20 CFR §§404.1510, 404.1572; 20 CFR §§416.910, 416.972. 6. 20 CFR §404.1505; 20 CFR §416.905. 7. 20 CFR §404.1520; 20 CFR §416.920. 8. 20 CFR §404.1520(a)(4)(i) and (b); 20 CFR §416.920(a)(4)(i) and (b). 9. 20 CFR §404.1574; 20 CFR §416.974; see POMS (Program Operations Manual System) DI 10501.015 for the yearly SGA amounts. The POMS are operational instructions for SSA employees to process disability claims. Note, self-employment guidelines are at 20 CFR §404.1575; 20 CFR §416.975. ENDNOTES 1. 20 CFR §404.1520. 2. 20 CFR §416.920.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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10. 20 CFR §404.1520(a)(4)(ii) and (c); 20 CFR §416.920(a)(4)(ii) and (c). 11. 20 CFR §404.1522; 20 CFR §416.922. See also SSR 85-28. SSRs (Social Security Rulings) are binding, precedential policy interpretations and decisions the agency publishes providing official guidance to SSA employees such as ALJs. 12. See 20 CFR §404.1502 and 20 CFR §416.902 for the definition of an acceptable medical source. 13. 20 CFR §404.1521; 20 CFR §416.921. 14. 20 CFR §404.1520(a)(4)(iii) and (d); 20 CFR §416.920(a)(4)(iii) and (d). 15. Appendix 1 to Subpart P of Part 404 – Listing of Impairments; see also https://bit.ly/4r33tyM , which provides information regarding the evidentiary requirements and other useful information related to impairments. 16. 20 CFR §404.1526; 20 CFR §416.926. 17. 20 CFR §§404.1545, 404.1546; 20 CFR §§416.945, 416.946. See also SSR 96-8p. 18. 20 CFR §§404.1567, 404.1569a(b); 20 CFR §§416.967, 416.969a(b). See also SSR 83-10 and SSR 85-15. 19. 20 CFR §404.1569a(c); 20 CFR §416.969a(c). See also SSR 83-10 and SSR 85-15. 20. 20 CFR §404.1545(a)(1) 20 CFR §416.945(a)(1). 21. 20 CFR §404.1545(a)(2); 20 CFR §416.945(a) (2). See also SSR 96-8p. 22. Typically, as of the date of the determination or decision. 23. See SSR 24-2p. 24. 20 CFR §404.1560; 20 CFR §416.960. See also SSR 24-2p.

25. Not all claimants will have PRW and if they do not, the analysis proceeds to step five. 26. 2 CFR §404.1566; 20 CFR §416.966. 27. 20 CFR §404.1564; 20 CFR §416.964. 28. 20 CFR §404.1520(a)(4)(v); 20 CFR 29. 20 CFR §404.1563; 20 CFR §416.963. 30. Appendix 2 to Subpart P of Part 404 – Medical-Vocational Guidelines. See also 20 CFR §404.1569; 20 CFR §416.969. 31. 20 CFR §404.1568; 20 CFR §416.968. See also SSR 83-11. 32. 20 CFR §404.1569a(d); 20 CFR 416.969a(d) Appendix 2 to Subpart P of Part 404 – Medical Vocational Guidelines, 200.00(e)(2)s; SSR 83-12; SSR 83-14. 33. 20 CFR §404.1601 et seq. ; 20 CFR §416.1001 et seq. 34. 20 CFR §404.1517 et seq. ; 20 CFR §416.917 et seq. See 20 CFR §1518; 20 CFR §416.918 (regarding denial for failure to attend CE). 35. 20 CFR §§404.1615, 404.1616; 20 CFR §§416.1015, 416.1016. 36. 20 CFR §404.902 et seq. ; 20 CFR §416.1402 et seq. 37. The rules and regulations governing return to work issues, medical improvement or other disqualifying events are beyond the scope of this article on the basics of SSA disability claims. 38. 20 CFR §404.907 et seq. ; 20 CFR §416.1407 et seq. 39. 20 CFR §404.919 et seq. ; 20 CFR §416.1429 et seq. Form HA-501 is “Request for Hearing by §416.920(a)(4)(v).

Administrative Law Judge,” form but a written request with the individual’s name and Social Security number, spouse’s name and Social Security number, the reasons for disagreeing with the reconsideration determination, a statement of additional evidence to be submitted and the date of submittal, and the name and address of any designated representative will suffice. 40. Over the last decade, the hearing office has had a variety of designations. For purposes of this article specific designations are ignored in favor of a general reference to the “hearing office.” 41. Representatives can be attorneys or non-attorneys. See 20 CFR §404.1705; 20 CFR §416.1505. 42. 20 CFR §404.1566(e); 20 CFR §416.966(e). See also SSR 24-3p and HA 01250.048. 43. See HA 1250.034. HA, or HALLEX, is the Hearings, Appeals, and Litigation Law Manual . 44. While the individual’s testimony cannot be relied on the establish an MDI, the testimony may be relied upon to assess symptoms such as pain in considering what it is the individual can and cannot do. See SSR 16-3p. 45. 20 CFR §404.1566; 20 CFR §416.966. 46. If the claim is denied at the hearing level, the claimant may appeal first to the Appeals Council, and if denied at the Appeals Council, the federal district court. See 20 CFR §404.967 et seq. ; 20 CFR 416.1467 et seq. 47. If appealed to the federal district court, an attorney will be required unless the claimant proceeds pro se.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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G overnment & A dministrative L aw P ractice

Public Construction Under the Oklahoma Public Competitive Bidding Act: Municipal Compliance from Bid to Completion By Chase McBride

T HE PUBLIC COMPETITIVE BIDDING ACT OF 1974 applies to public agencies, includ ing the state of Oklahoma, and its political subdivisions such as counties, cities, towns, and school districts. This article addresses only those provisions of the act that apply to public construction contracts for municipalities.

under $10,000 may be negotiated with a qualified contractor. 5 Municipalities may adopt charters containing provisions that differ from general state law. 6 However, if a statute, municipal charter, or ordinance imposes stricter requirements than the act, the stricter provisions control. 7 Competitive bidding require ments are mandatory, and con tracts awarded in violation of the statute are void .8 The act also allows municipali ties to perform construction work on a force account basis, meaning the city may use its own employ ees, equipment, and resources rather than bidding the work out,

construction management trade contracts or subcontracts exceeding $50,000 be awarded to the lowest responsible bidder through open, competitive, sealed bidding. 3 No work may begin until a written con tract is executed, and the contractor has provided all required bonds and insurance. 4 These thresholds ensure that larger public projects receive appropriate oversight and deliver the best value to the public. For construction projects involv ing improvements, buildings, or repairs totaling $100,000 or less, a municipality may award the work based on written bids or competi tive quotes in accordance with its purchasing policies, and contracts

Municipal officials function as trustees of public funds. The act is designed to promote open compe tition and to guard against “favor itism, improvidence, extravagance, fraud and corruption,” while securing “the best work or supplies at the lowest price practicable.” 1 Its “sole purpose is to obtain the best results at the lowest cost, the great est value for the fewest dollars; in other words, it is a means for mak ing the best possible bargain.” 2 THRESHOLD AND WHEN THE ACT APPLIES In short, the act requires that municipal public construction contracts exceeding $100,000 and

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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