The Social Security regulations provide authority for ALJ’s to obtain testimony from vocational and medical expert witnesses. Vocational experts are used to identify the exertional and skill classification a claimant’s past relevant work, to identify skills acquired in past work and the jobs to which they may transfer, and to identify other work which is within a claimant’s physical and mental capacity. Medical experts include physicians and psychologists, and are used to help interpret medical evidence, to help identify and/or resolve conflicts in the evidence, to help determine whether findings are present which meet a listing, and to help identify or establish a residual functional capacity.
The scope of this presentation includes preparation for hearings at which there will be testimony from vocational or medical expert witnesses, and cross-examination at such hearings. Post-hearing interrogatories, rebuttal witnesses and the like are specifically excluded, although it is often necessary to mention them as supplemental techniques. The goal of the paper and presentation is to help attendees present Social Security disability claims by using vocational experts and medical advisors to assist in proving your client’s claim, by limiting the damage they may do to the claim, or by helping to negate the damage they have already done.
Many of the principles which will be discussed apply to both vocational experts and medical advisors, and I will attempt to be efficient by not discussing those principles twice. Where necessary or helpful, I will discuss them separately.
While the expert witness may be called by the ALJ to give impartial testimony, which could help or impede the grant of benefits, many expert witnesses testify as if their purpose is to “help” the ALJ deny benefits. Sometimes this opinion is based on clear signals deliberately sent by the ALJ, but more often it is a misconception which arises from the expert’s own personal biases. Some of these experts have worked as advisors at the state agency, and have been trained to analyze disability cases under the POMS. Others merely take into the hearing biases which naturally flow from their training and background. Vocational experts may have been taught that no disability is so severe that it prevents work, and may have worked with severely disabled individuals who were employed. Medical experts have, no doubt, been educated in the world of the “scientific method,” where nothing can be accepted as a fact until it has been documented by repeated scientific testing. In both cases, the training of the witness may work against you. In spite of these frequent predispositions, you need not feel trapped by the expert witness who does not initially give helpful testimony. Even biased witnesses will often help your case in spite of their bias.
How do you make the witness yours? One of the first things you should do is determine which facts you need to establish to prove your case, and identify those which might be supported or undermined by the witness. Do everything you can to obtain documentation of the signs and symptoms or vocational factors underlying the potentially controversial areas, then use the witness to prove your case by pointing them out to the ALJ. Positive is always better and more effective than negative. If you can use the expert witness in a positive manner, affirmatively proving an element of your case, you will generally be better off than if you succeed in disproving some element of the testimony. Look for affirmative statements from the witnesses that advance your argument.
In most cases of mine where there is a medical advisor, he will testify that my client meets or equals a listing. Even if I cannot get such an opinion, I will usually get a general agreement with the treating physician’s diagnosis, and often the functional limitations noted by the treating physician or the claimant. If I have prepared for the hearing properly, the vocational expert witness will be willing to agree that my client is unable to perform a significant number of jobs. Not all expert witnesses called by the Administration are so cooperative, however. Nevertheless, any of them are potential claimant’s witnesses if you understand how to use them.
The cardinal rule for success in a Social Security claim is to treat it as you would any other case involving an amount in controversy exceeding $100,000, a fairly typical amount of potential pre-retirement benefits of a Social Security Disability Insurance Benefits claimant. Some attorneys treat Social Security claims more casually than other trial work involving similar amounts of money. Do not be one of them. Social Security hearings are trials, with all the techniques available for any other non-jury trial. Handling a Social Security hearing as you would a trial of a case with substantial amounts in controversy shows respect for yourself, your client and the Administrative Law Judge enough to zealously represent your client. This means you should observe the usual rules of examination of witnesses, including never asking a question to which you do not know the answer. With expert witnesses, following this rule can require extensive preparation, especially if the witness is hostile.
If this presentation gave attention to each topic in proportion to its importance and difficulty, this section would be longer than the other sections of this paper combined. The best rule in preparing for examination of a medical advisor or vocational expert is to be so familiar with the case and the likely testimony of the witness that the chance of a surprise is remote. When you are preparing your claim for a hearing, you should develop a concise theory of the case which will form the foundation of your presentation. You should analyze your case using the sequential evaluation process, and make a note of the method of proof you intend to use for each required element. When you list all evidence which supports and detracts from each required element of proof, you will see which ones need reinforcement. Then you can devise your examination of your expert witness to assist with the largest possible number of elements of your case.
With medical advisors, adequate preparation means becoming knowledgeable about the impairment(s), about the claimant’s treatment history, about the usual diagnostic procedures and results, and knowing the vocabulary and rating system (if any) used to discuss the impairment. The scope of medicine is too great for me to tell you specifically how to prepare for each impairment, but at a minimum you should know all applicable listings and professionally recognized rating systems. For example, for mental impairments it is essential that you know the DSM-IV thoroughly, at least as it applies to the diagnoses given your client. For heart disease, be familiar with the New York Heart Association Functional Classification system. While you cannot expect to know the medicine better than the medical advisor, you do know the law better. If you know the medical classification system well enough, you can often use your superior knowledge of the law to “assist” the expert in arriving at the correct conclusion.
I recommend that you write a script for your examination, whether it is direct or on cross. Carefully word all proposed hypothetical questions in advance. If your write out all questions you intend to ask, and the answers you expect to elicit, you will avoid asking a lot of risky questions. If you are unsure what to expect from the witness, you should record citations to the support for the answer you seek, whether it is in the record or in a medical text. After scripting the examination, review your theory of the case. Your theory of the case must be simple and capable of concise statement; if it is not, you risk confusing the judge with your argument. When you compare your theory of the case with the script for the examination, look for facts or principles which can be supported or strengthened by the witness.
If you are preparing to cross examine a medical advisor, you need to be familiar with the claimant’s medical history and the medical problems from which the claimant suffers. This may simply mean reading a section in Steadman’s or the Merck Manual, or it may mean a thorough review of the current medical literature. For the former, you need a good medical dictionary and at least one good text on general medicine. For the latter type of search, you should have an account with the National Library of Medicine so that you can do electronic searches of Index Medicus and other sources. This type of search can also be useful if your expert has published, as you can find his published work and read it to determine his perspective.
I hope it goes without saying that the only reason to cross-examine a medical advisor or vocational expert witness is to try to win a case where victory is doubtful. If the witness has already given testimony which proves your case, never ask questions of any type.
Many people, including attorneys, have a mistaken impression that the primary purpose of cross-examination is to “break” the witness. Perhaps in some parallel universe expert witnesses really do break down on the stand and beg to be forgiven for mistakenly opposing your theory of the case. It never happens in my universe; I recommend that you not wait for it to happen in yours. You should instead adopt a more realistic goal of cross-examination: to get the witness to make statements which support your theory of the case.
The primary methods of making a VE or an MA into your witness are to elicit testimony that proves your case directly, and to get the witness to agree with facts necessary to your argument. This might include general principles which are indisputable and otherwise demonstrable, or specific elements of your case. Whatever the method you use, you should look for ways to have the expert prove things that help your case, rather than expend your efforts trying to disprove things that hurt your case.
There are many ways to utilize expert witnesses, but your attempts to do so will be all for naught if you lose sight of the goal you are attempting to reach. If you expect to elicit dramatic retractions and apologies by expert witnesses, your satisfaction will be much delayed. Nor will you gain anything by engaging in hostile and aggressive attacks on the witness or his credentials. You must remember that you are there to win your case, and not to impress anyone with your brilliance. Every question to every medical advisor or vocational expert must be calculated to lead to testimony which supports a fact necessary to the desired conclusion. You first must develop a theory of the case which can be simply stated and proved. Once you have a theory of the case, and you know what facts must be proven to win, you are ready to decide how to prove them, and whether you need to hire your own medical advisor or vocational expert. Your examination of the Vocational or Medical Expert witness must be tailored to your theory of the case. There are three basic ways to tailor your presentation of the case to win.
The best way to win a case is to convince the ALJ that your client deserves disability benefits. To this end, prepare the case to emphasize the claimant’s credibility. Unfortunately, it will not always be possible to do so.
In some cases you will be faced with the unfortunate reality that the expert witness has convinced the ALJ (if she/he needed convincing) to deny the claim, and any attempt to examine the witness will be viewed by the ALJ as a waste of his time. Your job is then to introduce evidence which satisfies specific regulatory criteria, or which tracks case law, thereby forcing the ALJ to pay benefits. This method must always be used with some ALJs, and often with others. It may make you unpopular with the judge, but you owe it to your clients to do it where helpful regardless of its effect on your personal popularity.
In spite of your best efforts, you will sometimes find yourself in a hearing where it has become quite clear that the ALJ is determined to ignore, misconstrue or give improper weight to the evidence. The only remaining option is to prepare the record for appeal. As with the second strategy, this requires intimate familiarity with the statute, regulations and case law.
In some cases the three strategies will not be inconsistent with one another. You must be familiar with all the strategies, and be flexible enough to switch between them as circumstances require.
Continue to CROSS-EXAMINATION TECHNIQUES IN GENERAL.
Go back to Table of Contents.