September 1, 2014

Medical Expert Testimony at Your Social Security Disability Hearing

When the day finally arrives for your Social Security disability hearing, you may find that the Administrative Law Judge (ALJ) has asked one or more doctors to testify about your ability to do work-related activities. Some, but not all, Administrative Law Judges call on medical experts to testify at hearings.

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You may be wondering how a doctor who has never seen you before can testify about your medical conditions and how they affect your ability to work.   In my experience, medical expert testimony at a disability hearing has both advantages and disadvantages.  An experienced disability attorney knows how to prepare for a hearing to maximize those advantages while defending against the disadvantages.

Some doctors who testify at hearings appear in person, but many testify over the phone. Social Security pays each medical expert a flat fee to review a claimant’s medical file and provide unbiased testimony at the hearing.  In my experience, the Social Security Administration (SSA) has difficulty finding qualified doctors to testify; most practicing physicians have neither the time nor the financial incentive to work as a medical expert for Social Security.  Most of the doctors I see at hearings are retired general practitioners.  While  the ALJs typically request testimony from doctors who specialize in the claimant’s impairments, it is often difficult for Social Security to find such a specialist who is available to testify. Each medical expert at your hearing is expected to have reviewed all of the medical records in your file and be prepared to present his opinions on the following issues:

  • Your medical diagnoses
  • Whether your impairments meet or equal the definitions set out in Social Security’s “Listing of Impairments”
  • The physical and/or mental work-related limitations caused by your impairments

The ALJ will likely ask the medical experts some additional questions, and you or your representative will have an opportunity to ask questions as well. Many judges give a lot of weight to the opinions of the doctors who testify at the hearings.  However, the judge is not required to decide the case based solely on the medical experts’ testimony.  In fact, a good judge remembers that the medical experts’ opinions are just one aspect of the entire body of evidence in your case.  The medical experts’ testimony must be supported by the rest of the evidence in your medical records.  Further, if the record contains an opinion from one of your treating physicians, the judge must give your treating doctor’s opinion the weight it deserves, considering that your own doctor has examined you in person and has in-depth knowledge of the history of your impairments.

Unfortunately, you do not have any control over whether your ALJ will call a medical expert to testify, and you also cannot choose which doctor will testify at your hearing.  There are several things you can do to make your case as strong as possible, though, regardless of the medical expert’s testimony.  These steps include:

  • Get regular treatment from specialists.  Of course, your decisions about your medical treatment are often affected by your health insurance coverage and your ability to afford deductibles and co-pays.  However, the ALJ must give greater weight to the opinion of a specialist than that of a general practitioner, provided that the specialist’s opinion is supported by the rest of the medical evidence.
  • Get testing.  Take advantage of any opportunity you have for x-rays and other imaging, blood tests, or other testing that can provide hard data documenting the severity of your impairments.
  • Submit medical source statements.  Ask each of your doctors to write a letter explaining your diagnoses and how they limit your work-like activities.  I provide doctor questionnaires for my clients; the questionnaires are designed to get the information we need to show the ALJ that the client meets Social Security’s requirements to be found disabled.
  • Make sure Social Security has all of your medical records for the hearing.  If you do not have a representative, Social Security will send you a computer CD a few months prior to your hearing.  The CD will contain copies of all of the exhibits in your Social Security file.  Review these documents and make sure your file has all of your records from all of your medical providers, including doctors, therapists, hospitals, and clinics.  If anything is missing, contact the provider to request those records, and make sure you send copies to Social Security at least two weeks prior to your hearing.  Social Security needs time to send those additional records to the medical experts who will testify at your hearing.  If your file is not complete in time for the hearing, the ALJ may postpone the hearing to make sure that the medical experts have all of the records available before they testify.

While there is no way to guarantee that an ALJ will find you disabled, having a complete medical record and statements from your treating doctors will go a long way in building a strong case that can withstand unfavorable medical expert testimony.

This blog reflects my experiences as an Indiana Social Security disability attorney. It is not intended as legal advice, and not all of my experiences are the same as other attorneys and representatives. I do, however, have years of experience and have represented hundreds of my Indiana neighbors in getting the benefits they deserve.

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