Medical Experts at Social Security disability hearings

By Tomasz Stasiuk, January 13th, 2011 | 3 Hearings | 8 Comments

Sometimes when a Social Security disability case goes to hearing, the Administrative Law Judge has a brand new doctor testify (usually by telephone). This is not one of your doctors, or (usually) even one of the doctors Social Security has sent you to. These are Medical Experts (MEs) that the Judge calls for several reasons:

1. Establish a medically determinable impairment. In any Social Security disability case, you have to prove the existence of not only symptoms, but also an underlying cause — a diagnosis. When the records are not clear, or when different doctors have provided different diagnoses (especially over time), a Medical Expert can help clarify what the underlying conditions have been and are today.
2. Determine if the impairments meet or equal a listing level impairment (step 3 in the Sequential Evaluation Process). If a Medical Expert states your impairments either meet the requirements of  listing level impairment, or have the same limitations as a listing level impairment, the case may be approved very quickly.
3. Provide limitations from the impairment(s). In many cases, treating doctors do not want to make any kind of opinion about work-place limitations. They refuse to complete forms which often results in a gap in your evidence. Even though Social Security often has one of their own doctors review a case and determine limitations during the initial case review (before the first decision), the Medical Expert can provide a new opinion. This can be a better opinion since it is based on evidence that has been developed over the course of the case.
4. Establish an onset date. If the Medical Expert is supportive of the disability, they may also be asked to estimate how far back the limitations existed. This is important to establishing the correct onset date in a case.
5. Provide a prognosis. In order for a condition to be disabling it has to either be expected to result in death or be disabling for 12 months or longer. If a condition has not clearly been disabling for 12 months, a Medical Expert may be asked whether it is likely to continue until the durational requirement is met.

While a Medical Expert may touch on any or all of these, the make or break issues are whether the impairments meet a listing, or if not, what limitations are expected to result from the impairments.

Is having a Medical Expert good or bad?

Unfortunately,  you have no way of knowing until the ME testifies at the hearing. I have had cases where the ME is completely supportive of the disability and we are done and have an approval five minutes after the ME testifies. I have also had cases where the ME is completely unhelpful and the rest of the hearing is like trying to scale Mount Everest. MEs make or break cases. When they are helpful, it is like the heavens part. When they are not, it is as if they threw and hand grenade into the room and then walked out. Why do MEs have such a critical impact on Social Security hearings?

• Medical Expert testimony is often the last evidence the Judge receives. In trial presentation theory, there are the concepts of recency and primacy. This simply means that jurors, or in this case the Judge, is more likely to accept what is heard first or last. When a Medical Expert testifies at the hearing, that testimony has the benefit of recency.
• Medical Experts are perceived as independent.
• Medical Experts provide live testimony. Unlike other doctors’ reports and records in the file, the Medical Expert is providing live testimony and responding to the Judge’s questions. Combined with the other two factors, Medical Expert testimony is usually quite persuasive at hearings.

What to do about bad medical expert testimony:

So, is that it? If a Medical Expert testifies, is that the entire case?

No. You have several options:

1. Object to the Medical Expert / object to certifying the witness as an expert. You can always object to a witness at the hearing. However, this cannot be done willy-nilly. There has to grounds for the objection, and the Judge may overrule the objection. Another risk is that you can only object to the ME before they testify. If you object, and the ME testimony was going to be good, you may be loosing the best evidence you could possibly get.
2. Have your own doctor testify at your Social Security disability hearing. This is one of those things that sounds perfectly reasonable and yet, rarely happens. I have had a number of clients tell me that their doctor testify. However, when the hearing date is set and the doctor is notified, it turns out they will not attend. I can count on one hand the number of times I have seen a treating provider actually come in to testify. Keep in mind that even if a doctor is willing to testify, you may have to pay from two hours to half a day for the doctor’s time — even if they only testify for 20 minutes. This can easily cost several thousand dollars.
3. Submit a post hearing rebuttal opinion. Some Judges will allow you to provide a written report from your doctor addressing the Medical Expert’s testimony. Even doctors who were previously unwilling to get involved are sometimes spurred to take action by the Medical Expert’s testimony. A rebuttal report may be free, or may cost several hundred dollars.
4. Put on the best damn case you have. Even if the Medical Expert is not helpful, all you can do is present the case you have prepared. Remember that the Medical Expert has never examined you and does not know you as well as your own doctors. Social Security has to give consideration to the length, extent, and nature of treating relationship between you and your doctors.

Even if the Medical Expert is not helpful, there is often evidence in the file that supports your disability. You just have to fight extra hard to bring it to the Judge’s attention.

Tomasz Stasiuk is the founding attorney of the Stasiuk Firm - a law firm devoted to exclusively handling Social Security disability cases in Colorado. Contingent fees available.