IV. CROSS-EXAMINATION TECHNIQUES IN GENERAL

A. Get the witness to prove your case

When cross-examining an expert witness you should remember that his expertise, as your own, has bounds. You know far more than he does about the regulatory criteria for disability. You may be able to get him to prove your case without his knowledge. For example, I had a hearing with a claimant who had a Schwannoma in the Ulnar nerve. This is a non-malignant tumor which grows through nerve tissue. The only way to excise the tumor is to take the nerve with it. In the case of my client, she had a nerve graft to replace the 1 1/2 inches or so which were excised. She developed extreme tenderness and pain at the site and in the Ulnar nerve distribution. Her treating physician diagnosed reflex sympathetic dystrophy, and stated that her pain was so intense that she could not perform any work because any movement of the arm, and especially any contact with the skin, caused severe pain. The ALJ called a medical advisor to testify at the hearing who was an expert at pain control. He had founded a local pain control clinic, and had published extensively (in over 100 medical journals) on the subject of pain control. He was, to be charitable, extremely optimistic about the ability of individuals to recover from debilitating pain; after all, he made his living and his reputation with his pain rehabilitation therapy. Rather than attack his testimony that, in his opinion, there was no doubt in his mind that the claimant could work, and that he had seen many patients with comparable complaints have full recoveries, I looked for areas of agreement. I found it in his area of expertise: pain rehabilitation.

Q. Dr. X, you have worked with pain for many years, have you not?
A. That is correct.
Q. You have also published research on pain, and trained physicians in pain rehabilitation?
A. Yes, I have.
Q. Would you describe some of the techniques you use in your practice to help patients suffering from conditions similar to Ms. Y’s?
A. Yes. [He describes various therapies, the specifics of which are mostly irrelevant.]
Q. There are many different techniques you can use to treat such a patient?
A. That is correct.
Q. What techniques would you use to treat Ms. Y, and how long would it take you to rehabilitate her?
A. [He describes various therapies he would try, admits he does not know what would work or how long it would take.] If she responded well to therapy, she could substantially recover, to the point that she would no longer be debilitated by her pain, within two months. If her pain proved more refractory to treatment, she might require six months of therapy.
Q. Some of the possible therapies you mentioned are similar to the treatment Dr. Z has provided, are they not?
A. Yes.
Q. Ms. Y did not respond well to the physical therapy that Dr. Z prescribed, did she?
A. No, she did not. She might have responded better if he had combined the physical therapy with a local anesthetic.
Q. It is fair to say, is it not, that Ms. Y has, so far, been “refractory to treatment?”
A. Well, she has so far, but she needs to be in therapy.
Q. If you were her treating physician, would prescribe for Ms. Y the therapies you described for us a few minutes ago?
A. Yes, I would probably start her on [he describes what he would do].
Q. Since you would prescribe this therapy for her, I assume that you feel that it is necessary for her recovery?
A. Yes, it is.
Q. Approximately how long would her rehabilitation take to accomplish?
A. Perhaps two to six months.
Q. I have no further questions for this witness.

This exchange was taken by memory from one of my hearings (I am not really that lucid and concise in an actual hearing). After the witness was excused, the ALJ accepted my argument that the witness had demonstrated that rehabilitation was necessary to restore the claimant to the capacity to work, and he awarded benefits (MIE). The witness wanted to claim great skill and knowledge as an expert in rehabilitation therapy. He then had to agree that his therapies were necessary. If therapy was necessary, then the claimant obviously could not work without it. While the doctor was convinced he had torpedoed my client’s attempt to get “on the dole,” he had in fact helped me demonstrate that she was entitled to benefits.

B. Getting the witness to agree to helpful facts

In some cases you cannot get the expert to demonstrate that your client meets the regulatory requirements for disability, or you do not yet know whether he wants to help your client. One good way to get a feel for his thoughts about the case is to ask him to summarize the medical history of the claimant as found in the medical records. Another good suggestion I have seen is to ask him to describe the disease or condition, or to define the terminology found in the records. Sometimes you will find the doctor will help you win your case directly, but in others you may find the doctor is unhelpful or even hostile. In most cases you will still be able to find some common ground on which the doctor will agree with you. Getting the expert witness to agree with you may lend credibility to you, to your client, or to the opinions of the other physicians in the case. Often the fact on which he agrees will matter less than the fact that he agreed with you about something. You may get the witness to explain why the symptoms the claimant describes can reasonably be expected to result from the alleged impairment. For example:

Q. Does the 10 point spread between the digit-span and vocabulary sub-test scores on the WAIS-R indicate to you an increased likelihood of organic brain damage where there is a history of a stroke with residuals of significant left-sided ataxia, and a marked reduction of visual field on the left?
A. It would be consistent with an organic mental impairment, but other things could cause a disparity. For example, a person who is under the influence of alcohol or drugs may have a depressed digit-span.
Q. Is it true that an individual with brain damage might still have a full-scale IQ of around 100?
A. Of course that is possible.
Q. Is it possible that such an individual might have significant personality changes?
A. Changes in personality are among the most frequently reported symptoms of organic brain damage, but this claimant did not have a psychological evaluation which we could compare, so we cannot say whether such a change has occurred.
Q. Would you normally try to determine whether there has been a change in personality if you got a new patient who was suspected to have had brain damage?
A. That would be among many questions I would investigate.
Q. Have you ever encountered a brain-damaged patient in your practice who did not have a pre-morbid psychological or psychiatric evaluation done?
A. It is common not to have a pre-morbid evaluation to work with.
Q. How do you determine whether there has been a change in the patient’s personality?
A. I take a complete history from the patient and his family.
Q. No further questions.
In this brief exchange, the medical advisor agreed that there were two items of evidence suggesting organic brain damage (even though the only person to make such a diagnosis was a counselor at the mental health center), and that the testimony of the claimant and his wife are medically acceptable sources for evidence of a change in personality.
Another example might deal with the common problem of pain complaints which are out of proportion to the clinical findings.
Q. Isn’t it true that medical science has never been able to quantify or measure pain?
Q. Isn’t it true that the primary method physicians use to determine the degree of pain a patient experiences is to ask the patient?

In such exchanges, it is unnecessary that the medical advisor agree that the claimant is disabled. Just get them to agree that the impairment could cause the limitations alleged, and that there is no way to be certain that it has not.

C. General damage control techniques

Suppose you have tried everything you can think of and you can think of no way to get the expert on your side. You may have no choice but to engage in some damage control. You will generally be allowed to use the primary advantage of cross examination, but you often will be denied the second one. The two advantages generally allowed a cross-examining attorney are the ability to use leading questions, and the ability to insist on responsive answers (i.e. to limit explanations). In my experience ALJ’s never complain about leading questions to witnesses called by the ALJ, but that they will never direct the witness to limit his answers to responding to my questions. It seems that they view medical advisors and vocational expert witnesses as “their” witnesses, regardless of the regulatory provision that they be impartial. This means that you must be ready to deal with damaging testimony in a way which does not require that you be allowed to control the witness. It is more challenging, but it can be done.

One technique which has been used successfully to establish as much control as you are likely to get is to try to appeal to the witness himself. For example:

Q. Doctor, I am going to question you about a great number of matters related to this claimant during the hearing, and we do not have unlimited time. I am going to try to ask you questions which can be answered with a “yes” or a “no” so we can move through the material as quickly as possible. If I mess up and you cannot answer with a “yes” or a “no,” just say you cannot and I will reword the question.

Your likely lack of control over the witness makes the general rule that you never ask an expert witness to explain why she disagrees with you even stronger. Never ask for an explanation, and never permit one if you can avoid it, unless you know in advance that it will help your claimant.

1. Qualification

There are two general areas where you can get a medical or vocational expert to qualify his or her testimony to weaken the witnesses otherwise harmful testimony. You can introduce uncertainty as to his opinion and its foundation, or as to his qualifications to make the opinion.

a) Introduce doubt-how firm is the opinion

The Eleventh Circuit held in Cantrell v. Bowen, 804 F.2d 1571, 1573 (11th Cir. 1986), that testimony from a Vocational Expert that he “just really cannot say” whether a claimant’s impairment would prevent him from working was not sufficient to provide support for a finding that the claimant had the ability to do jobs listed by the witness. Thus, introduction of doubt into the record (which always exists in real life) can be very helpful on appeal, and can occasionally result in forcing the ALJ to disregard the testimony. There are certain qualifying (i.e. doubt producing) questions you can be ready to ask without knowing what the witness will say, or even whether the witness will give helpful or harmful testimony. Examples as to medical advisors are:

Q. You never have treated the claimant, have you doctor?
Q. Isn’t it true that your testimony is based solely on a review of medical records, and that you have not examined the claimant?
Q. Isn’t it true that you would be better able to describe the claimant’s medical condition if you were able to examine him?
Q. Isn’t it fair to say that there is no method for objectively measuring pain? Isn’t it true that the primary method you use to determine the effect pain has on your patients is to ask them?
Q. Isn’t it true, doctor, that the claimant’s treating physician is in a better position to evaluate his medical condition than a consultant, such as yourself, who has never even examined him?

The courts will generally require that greater weight be given to the opinions of examining physicians than non-examining medical advisors. The opinions and conclusions of non-examining medical advisors or reviewing physicians, taken alone, do not constitute substantial evidence. Strickland v. Harris, 615 F.2d 1103, 1109 (5th Cir. 1980). The testimony of a vocational expert who does not independently evaluate a claimant’s capabilities cannot constitute substantial evidence to support a decision. Spencer on behalf of Spencer v. Heckler, 765 F.2d 1090 (11th Cir. 1985). Thus, similar questions could also be asked of a vocational expert, especially where you have hired your own vocational expert who has administered testing.

b) Introduce doubt-how firm is the foundation

In some cases you may also want to introduce doubt as to the foundation of the opinion, although this is considerably more difficult and risky a proposition. You should only attempt this if you are well prepared to do so, but if you can show that the vocational expert relied on data which is not published, you can argue that his testimony is unsupported. I was able to cast a shadow of doubt over the testimony of a vocational expert who testified to a number of jobs my client could do, including “hospital sitter.” A review of the DOT reveals that this job is not listed. It turned out that he had no publication which supported his numbers for this job, but he relied on a telephone call he made on a date he did not remember to a hospital outside of Atlanta in which he asked an unidentified person about the existence of these jobs. This effectively discredited that testimony. You may want to proceed like this:

Q. What is the DOT number of each of the jobs you listed? This pins him down to a job definition. You can then cross examine him about the SVP, math and reading levels required for the job.
Q. What is your source for saying there are 1200 of these in the Atlanta region?
Q. When was the last time you personally observed this job on a job site as it was being performed?
Q. Did you observe the job for the entire work day?
Q. Isn’t it true that you don’t know that you personally observed every requirement of the job?

You should not overlook the value of your superior knowledge of the claimant here. You may be able to get the expert to back off the opinion by asking what assumptions were made, then listing the limitations that were omitted but which are support by the medical records.

c) Introduce doubt as to the qualifications

I have rarely done this, but in well chosen cases it can be effective to challenge the qualifications of the expert. This may include questioning her/him on the specific educational background which qualified the witness to testify in cases involving the claimant’s impairments, the relevance of the witness’s experience to the questions before the ALJ, and other similar inquiries. Areas in which this type of inquiry has been helpful to me include the following:

• The medical problem is outside the area of the witnesses specialty.
• The vocational expert has placed disabled individuals in jobs, but they have not been able to keep those jobs.
• The vocational expert has not kept current with the changes in a particular job or field.
• The vocational expert has testified in Social Security hearings for 15 years, but his only experience in placing the disabled in jobs was for 3 years 13 years ago.

In these instances, as with any other witness, do not ask a question to which you do not know the answer.

2. Persuasion

It is sometimes possible to persuade the medical advisor or vocational expert to change her testimony. Generally, these witnesses will not be as familiar with the medical records as you (although there are exceptions). It is almost certain that they will not understand the law as well as you. You may be able to examine the witness in such a way as to educate her. Because of the general prohibition against asking questions to which you do not know the answer, this is a risky area.

3. Impeachment-the least effective and most difficult

Attempting to assassinate the character of the medical advisor or vocational expert is generally a path to ruin. ALJs generally see these witnesses as “their” witnesses, and become very protective of them. This tendency is stronger towards MAs than VEs. If you must attempt to destroy the witnesses credibility, it is better to get the witness to commit to his position, then to try to disprove it with post-hearing evidence. But if you must try to do it at the hearing, the motto is, as ever, be prepared. You should thoroughly know the file, the area of testimony (e.g. the DOT for VEs, the medical specialty for an MA), and the individual witness. Some attorneys go so far as to request a copy of the personnel file of the witness from OHA under the Freedom of Information Act.

In order effectively to challenge the testimony, you will need to carefully stake out the witnesses position. Get the vocational expert’s testimony about the specifics of each job, including DOT code, numbers, source for numbers, location of jobs, etc. Get the medical advisor to describe the specific signs and findings which are lacking, the findings he agrees are noted in the medical records, etc. Then you can proceed.

a) The post-hearing attack

If you intend to destroy an expert witnesses testimony, you can do so with less risk to your client if you do it after the hearing. Use the hearing to stake out the witnesses position, then request time to submit a brief. Along with the brief you might submit:

• Affidavits from employers saying they require workers doing the job cited by the vocational expert to perform duties precluded by the hypothetical.
• Copies of relevant sections of the DOT showing job requirements not allowed by the hypothetical.
• Copies of medical journal articles contradicting specific points made by the medical advisor.

b) Showing bias

Bias can be demonstrated in many ways, although obtaining the evidence can be difficult. One of the easiest ways is to focus on the amount of money the witness makes from giving testimony, especially if you can show his testimony is generally favorable to the government. In know of one instance where a vocational expert was quizzed about the number of hearings at which he testified, the amount of money he made for each hearing, and the percentage his witness fees make of his total income.

I have argued bias based on testimony drawn from the vocational expert that his testimony was based upon notes he made before the hearing (in this case, years before the hearing). It is easy to tell whether a vocational expert uses notes repeatedly or analyzes each case independently by the cleanliness of the paper on which his notes appear. If it is obvious his notes are old, ask him:

Q. Did you prepare the notes you referred to in answering the judge’s questions before the hearing?
Q. Isn’t it true that you prepared the notes for your testimony before you had even looked at this file?
Q. Isn’t it true that you have given the same testimony in many hearings? (Better be able to back this one up!)

With some vocational expert witnesses you may be able to get similar testimony admitting that the witness rarely testifies that there is no work a claimant can do.

If you take aim at an expert witness and miss, you will probably shoot yourself in the foot. This is less true for vocational experts than for medical advisors, but is largely true for both. All I can say about this is happy hunting.

V. CROSS-EXAMINING MEDICAL ADVISORS

Charles Hall, in his excellent book Social Security Disability Practice, states that there are six basic topics you may pursue with an MA. I will discuss each topic he mentions. These topics are listed in order of decreasing desirability. As one descends the list, the topic becomes more difficult to cover and the outcome more uncertain. Following the six noted by Hall, I will discuss some other elements often worth addressing with a medical advisor.

A. Meeting the listing

As noted above, you must be thoroughly familiar with any listings which could conceivably apply to your claimant. You will often find that the medical advisor is misinterpreting the listing, if you are knowledgeable about the listing. For example, where a listing requires the presence of a symptom without stating a particular severity required, medical advisors will often assume that the symptom must be severe to be considered. E.g.

When a symptom, such as pain, appears as a criterion (as in Listing 1.04), it is ordinarily essential only that the symptom be present in combination with the remaining criteria. Unless specifically indicated (as in Listing 1.04A, which requires that abduction of both arms at the shoulders, including scapular motion, be restricted to less than 90 degrees), quantification or evaluation of the intensity or of the functionally limiting effects of that symptom is not required to determine whether the documented findings meet the requisite criteria.
SSR 90-1p, Social Security Ruling Titles II and XVI: Evaluation of Pain and Other Symptoms.

B. Equaling the listing

You should be familiar with the three ways an impairment can be found to equal a listing under 20 C.F.R. §404.1526(a):

• The claimant’s findings are at least as severe as the findings required by the listing,
• There is no listing for the impairment, but the findings for the most closely analogous listing are met, or
• No impairment meets or equals a listing, but the claimants impairments taken in combination are medically as severe as a listed impairment.

This third way of equaling the listing is the most interesting one. Under this method, a claimant who has the objective evidence required for a physical listing and the functional restrictions, often called the “B” criteria, of a mental listing, can be found to equal the mental listing. For example, an obese claimant whose weight is severe enough to meet the weight requirements, but who has not developed the cardiac, respiratory or musculoskeletal complications required for §9.09, might meet the “B” criteria for a mental listing and be found to equal the mental listing. This analysis is most common with orthopedic and mental listings, but is not limited to them.

C. Functional limitation

Often, even a reluctant witness will admit that the claimant has the type of symptom alleged. It can then be helpful to get the medical advisor to state whether the claimant’s functional limitations, as alleged, fall within the range which can be produced by the claimant’s impairments, given the wide range of individual tolerance for pain, etc. If you fire and miss, you will have no choice but to undermine the witnesses credibility or rely on existing or new evidence from the treating source.

D. The need for additional medical evidence

If the MA gives harmful testimony, consider whether you can get him to admit that additional testing or other evidence would be helpful or necessary to determine the extent of the claimant’s limitations. This type of question must be very carefully worded to focus on areas where you are certain that a negative response will not be given, or will be given no credibility.

E. Uncertainty

Almost any medical advisor will admit that he would have better information if he conducted his own examination, and ordered every test he thought might be helpful. This is just a hop, skip and a jump away from your argument that the treating physician should be given more weight as the medical advisor agreed that personal examinations produce more valid medical opinions.

F. The MA’s qualifications

This can be useful as a topic of inquiry if the witness is testifying outside of his area of expertise. It can be difficult, otherwise, and is usually best avoided where the testimony is within the area of the expert’s qualifications.

G. Resolve conflicts in the medical evidence

This can go both ways. Sometimes you want to show that there is conflict between the treating physician and the consulting physicians. At other times, you may want to piggy-back your treating physician opinion on the consulting physician’s report. If the medical advisor says the diagnosis and findings of the treating and consulting physicians are reasonably consistent, then the conflict in the functional limitation opinions cannot be resolved by saying the treating physician’s opinion is unsupported, because it is supported by the consultant’s report!

H. The onset date where it needs to be “inferred”

This can be a troubling area, but can be very fruitful in selected cases. The medical expert can establish the usual course of the medical impairment, and whether the claimant’s description of the onset is within the range which could be present with the impairment. Coordinated with non-medical evidence, this can establish ancient onsets with minimal objective findings

I. Whether prescribed treatment would have restored the ability to work (SSR 82-59)

Assuming that there is a possibility that the other requirements of SSR 82-59 can be satisfied (which is unusual), the medical advisor can help establish that the treatment prescribed is not 100% effective, or that there was some reason it might not have worked with this claimant. An intellectually limited claimant might not benefit because of imperfect understanding of the treatment, or depression might make compliance impossible.

J. Whether there has been significant medical improvement

I have not seen a medical advisor called for this purpose, but it is listed in the Medical Advisor’s Handbook as a reason a medical advisor may be called to the hearing.

K. Describing drug side-effects.

Again, this is unlikely to be the only reason for calling a medical advisor, but checking the side-effects listed for your client’s medications in the PDR against the symptoms he alleges can be fruitful, and can be reinforced by the medical advisor.

Continue to CROSS-EXAMINING VOCATIONAL EXPERTS.

Go back to THE USE OF VOCATIONAL AND MEDICAL EXPERT WITNESSES.