The Use of a Medical Expert in a Social Security Disability Case

By Matt Greenbaum

I.

• Brief Overview – Types of Medical Evidence – A Treating Physician’s Reports
  • Treatment more than once
  • Claimant or attorney merely seeking an evaluation
• Consultative Physicians
  • Examines patient once only for purpose of providing diagnosis.
  • SSA required to send claimant for CE whenever examination will aid in bringing out relevant facts.
  • Weakness of CE
    • One-shot visit
    • Limited background
    • No evaluation of pain – Torres v. Bowen, 700 F. Supp. 1306 (S.D.N.Y. 1988)
• Review Physicians
  • Purpose is to read medical evidence in file to determine whether listing is met or equalled and to determine R.F.C.
• Medical Experts
  • Non-examining physicians
  • Testify at ALJ hearings
  • Generally appear at ALJ’s request
  • Claimant may bring his own medical expert.

II. Comparative Weight Given To Different Evidence

• Treating Physician Report
  • Every circuit but the Seventh Circuit, favors treating physicians.
• Fifth Circuit Caselaw
  • Treating physician’s report is to be accorded “considerable weight.” Moore v. Sullivan, 919 F.2d 901 (5th Cir. 1990).
  • Though not binding, the treating physician’s reports are given greater weight than a consulting physician’s report, absent good cause. Scott v. Heckler, 770 F.2d 482 (5th Cir. 1986).
    • Report not supported by clinical findings. Shipley v. Secretary, 812 F2.d 934 (5th Cir. 1987).
    • Contradictory Statements of other physicians. Hollis v. Bowen, 832 F.2d 865 (5th Cir. 1987).
    • Treating physician not accorded greater weight than consultative report. Adams v. Bowen, 833 F.2d 509 (5th Cir. 1987).
  • Specialist’s report accorded grater weight than non- specialist’s report. Moore v. Sullivan, 919 F.2d 901 (5th Cir. 1990).
    • May cause conflict where consultative physician is specialist and treating physician is general practitioner.
  • ALJ has discretion to reject opinion of physician if evidence is to contrary. Bradley v. Bowen, 809 F.2d 1054 (5th Cir. 1987).
• Weight Given to Medical Expert’s Testimony
  • Should be more than review physician, because of cross- examination, his ability to observe claimant, and his review of the most current medical evidence.
  • Comparison to examining physician:
    “Evidence provided by a single non-examining physician is not entitled to enough weight to overcome that of even one examining physician (let alone a treating physician), unless: (1) other evidence in the record corroborates that of the non-examining physician: and (2) the Admnistrative Law Judge articulates cogent reasons for rejecting evidence of the examining physician.” Jones v. Heckler, 583 F. Supp 1250, (N.D. Ill, 1984)

III. The Role of The Medical Expert

• Why Medical Expert is Utilized
  • Qualifications
  • Need
  • Utility
• Medical Records
  • Status of current record
  • Need for further development
  • Holistic approach
• Different Forms of Presentation
  • Testimony
  • Pre-hearing narrative summary
  • Answer to specific interrogatories
• Post-Hearing
  • May recommend additional development
  • Post-Hearing review of additional material
  • Supplemental hearing

IV. Sequence of Medical Expert’s Analysis

• Existence of medically determinable impairments
  • Severity
  • Singly or in combination
• Listings
  • Meet
  • Equal
  • Objective findings to support opinion
• Residual Functional Capacity
  • Limitations disclosed by objective findings
    • Laboratory tests
    • Clinical examination
  • Additional limitations suggested by subjective factors
    • Pain
    • Stress
    • Side-effects of medication

V. Preparing for Hearing With Medical Expert

• Theory of the case
  • Develop a theory of case which supports contention that claimant is disabled.
  • Identify all portions of the record which support theory.
• Background of Medical Expert
  • Determine whether the doctor is qualified to testify as an expert.
  • Try to ascertain what doctor’s testimony has been in prior similar cases.
• Background of ALJ
  • Try to ascertain what has happened in prior similar cases where this ALJ uses an M.E.
  • Try to determine when this ALJ typically utilizes this M.E.
• Cross-Examination
  • Never question an M.E. who has testified that a listing is met or equalled, except as to onset date.
  • Never ask an M.E. why he feels claimant is not disabled.
  • Be ready to try to minimize impact of M.E.’s adverse testimony.
    • Claimant’s treating physician is in better position to evaluate claimant’s medical condition.
    • Methods for measuring pain and how effect of pain is determined.
    • Testimony is based solely on review of records and claimant’s demeanor.
    • Would be better able to assess claimant’s condition if could examine him.
  • Where M.E. says listing is not met, have him document those parts of medical record that demonstrate that certain aspects of listing are met.
  • Try not to ask the M.E. for an opinion about the claimant. Just get the doctor to admit that the medical record reflects certain limitations. For example, “In Exhibit 20, p.4 Dr. Jones states that claimant cannot bend, is that correct?”

VI. Thoughts on Tactics

• General Ideas on Cross-Examination
  • Don’t ask the M.E. a question to which you don’t know the answer or where you suspect a negative answer.
  • Don’t sum up M.E.’s testimony with “So you are saying…”
• Remember the Weight!
  • An M.E. is a non-examining doctor and his opinion carries little weight.
  • Don’t ask why the M.E. does not agree with the treating physician. You are just giving the ALJ ammunition.
  • Obtain a supplemental report from the treating physician, following the hearing, which contradicts the M.E.
• Completeness of Record
  • Make sure the M.E. has seen all the evidence you want him to see. OHA often fails to provide M.E. with latest exhibits.
• Consider Utilizing Social Security Ruling 83-19
  • Social Security Ruling 83-19 lists three circumstances in which equivalence can be found:
    • A listed impairment for which one or more of the specified medical findings is missing from the evidence but for which other medical findings of equal or greater clinical significance and relating to the same impairment are present in the medical evidence.
    • An unlisted impairment, in which the set of criteria for the most closely analogous listed impairment is used for comparison with the findings of the unlisted impairment.
    • A combination of impairments (none of which meet or equal a listed impairment), each manifested by a set of symptoms, signs or laboratory findings, which combined, are determined to be medically equivalent in medical severity to that listed set to which the combined sets can be most closely related. SSR 83-19.