I have an easy rule to decide when to try to hire a VE or an MA: I try to hire my own expert witness if having one is necessary to assure that I will win the case. Stating this rule is easier than applying it, however.
There are a variety of reasons you may find it necessary to obtain your own vocational or medical expert witness. Here are a few.
It is a common situation for medical records to be riddled with ambiguities and apparent contradictions. Many of these can be cleared up by the use of an expert witness. I had a case where the medical records stated that subsequent to a stroke the claimant had an “almost complete recovery. Still some slight right drift.” This seemed enough to kill the case even though he was clearly suffering from disabling residuals from a second stroke, because his insured status expired prior to the second stroke. However, in discussing this with the claimant and his wife I was told that he never recovered fully from his first stroke, and that he had been told that he never had a second stroke. They insisted that he was the same when evaluated after the incident described as the second stroke as he was prior to that incident.
The physician’s testimony clarified the situation. The claimant had been found unconscious on the floor of his home by his wife some time after his first stroke. Because of his previous stroke, it was assumed that he must have had another stroke. However, testing done at the hospital disclosed no evidence of a stroke. Over three days he recovered to his “pre-morbid” state, and was discharged from the hospital in “good” condition. The treating physician said that he was uncertain whether the claimant had a stroke at the time, but he gradually came to the conclusion that the claimant had just accidentally over-medicated himself. He agreed with the claimant that his condition at the time of the hearing was substantially the same as after the first stroke.
The physician explained the reference to an “almost complete recovery” to an emotional expression of his optimism for the patient rather than a lack of objective findings, pointing out that a “slight right drift” is severely limiting vocationally. It seems that the patient was not expected to come out of a coma after the stroke, and the doctor was amazed that he was not only conscious, but he was able to walk, and to a limited extent talk. This testimony convinced the Administrative Law Judge, in spite of the seemingly harmful medical records, to award benefits.
Possibilities for similar testimony will arise from the facts of each case, but may appear in physician recommendations to increase activity, statements that the patient can “try” to return to work, statements that the patient is “doing well” or has “no complaints,” statements in a vocational evaluation that the claimant’s Strong-Campbell scores indicate that he is “suitable” for a particular type of job, or that he expressed interest in certain work. Statements by a physician that “no surgical intervention is indicated” may lead an ALJ to believe that there is no painful condition, when it may indicate that the condition is painful but not remediable by surgery, or that it is remediable by surgery, but surgery is contraindicated because of the claimant’s diabetes. If the claimant has attended school, testimony of a claimant’s vocational expert that school is not comparable to work because sitting is only required for short periods of time, or for other reasons may be indicated. You should scour the record looking for any statement by the claimant or any examining physician which could derail the claim, and decide how best to overcome it.
Often there will be gaps in the record, real or imagined by an ALJ, which call the result of your case into question. Calling your own expert witness can help fill these gaps with minimum risk. The gap may be in the clinical findings. For such a gap, testimony of the treating physician of his recollection of the clinical findings, or the findings which he knows were present because of his record-keeping conventions may be helpful. For example, the patient’s pain may not be described on every visit, but the physician may testify that the claimant always complained of pain on each visit, but that his practice was not to record such complaints unless they changed. Another example, taught to me by a psychiatrist I was deposing, is that the physician may have a practice of prescribing a certain medication only where a certain sign or symptom exists, such as a powerful tranquilizer only prescribed in the presence of a severe emotional disturbance.
You may be able to use a medical advisor to fill gaps in the record by inference. I will often seek evidence to fill gaps in treatment records of alcohol abusers. These claimants often do not seek medical treatment when their alcohol abuse is at its worst. A medical advisor could testify as to the likely severity of the alcohol abuse, which is not documented in the record at the required time, by inference from the severity of the liver disease, gastro-enteritis, and other problems which are documented in the medical records.
Medical advisors can also be very helpful to explain a disease which is not well known, or which may have gone undiagnosed by treating physicians. For example, I had a client who suffered from post-polio syndrome at a time when few physicians knew it existed. I had an expert on post-polio testify at the hearing to explain that the existing medical records documented all the signs of post-polio syndrome, but that the treating doctors simply were unaware of the disease, so no diagnosis was made.
Once you get to know the expert witnesses relied upon by the Social Security Administration, you will know in advance which witnesses are going to be difficult to persuade to give helpful testimony. I am not above using the peculiar characteristics of professional witnesses to limit their testimony. Most of the witnesses you will encounter who uniformly give testimony which is adverse to disability claimants are people who are accurately characterized as “professional witnesses.” These people have developed such a longing to hear themselves speak, and such a distaste for their fellow man, that they prefer sitting in a hearing room discussing paper to practicing their profession helping human beings. They generally have well developed egos, and do not enjoy having their statements discredited. This particular species of witness will often become hostile and combative in defense of their position. They hate being proven wrong. They are most easily attacked by a preemptive strike.
Prior to testimony by the agency’s witness, you should elicit carefully prepared testimony from your expert which will demonstrate the elements of your case in such a way that the agency’s witness will be forced by his/her own pride to agree with the majority of the testimony. The professional witness’s pride will require her/him to agree with well established facts, with sources of authority, and with the content of the medical and other records.
Although the Administrative Law Judge controls the hearing room and hearing procedure, I have only once had one refuse to allow me to present my expert witness before the agency’s medical advisor or vocational expert testified. They are accustomed to conventional trial procedure which allows a plaintiff to present his claim before other evidence is introduced. This is fortunate, because this technique of handling of a hostile expert witness by preemptive strike requires that your witness testify first.
If possible, you should try to have your expert perform an examination/evaluation of the claimant prior to the hearing. This is because the courts generally will not allow the Secretary to rely on a non-examining physician or other expert in preference to an examining one. Spencer on behalf of Spencer v. Heckler, 765 F.2d 1090 (11th Cir. 1985) (VE).
I do not expect that this presentation has deluded anyone into thinking that I know everything about the subject of using VEs and MAs, or that I have told you all you need to know about using them. The best we can hope for out of such a short program is to get a taste of the field for those who are new to it, and to stimulate the imagination of those who are not. If I have stimulated your imaginations sufficiently for you to develop a usable technique, I hope you will call me and tell me what you did. If you take anything specific from this presentation, I hope it is the advice to prepare thoroughly, and always try to use positive statements from the witnesses rather than negative attacks on their testimony.
A. Social Security Disability Practice, by Tom Bush. James Publishing, 3520 Cadillac Ave, Suite E, Costa Mesa, CA 92626. This book is an excellent starting place for beginners, and has a great many forms and practical tips useful to experienced practitioners.
B. Social Security Laws pamphlet, West Publishing Co.
C. West Social Security Reporting Service on CD ROM, or Clark Boardman Calloughan’s Social Security CD ROM. I prefer the West CD, which has the Statute, Regulations, HALLEX, cases from all federal courts, the DOT, Medical Proof of Disability, and Charles Hall’s book of practical tips.
D. Membership in the National Organization of Social Security Claimant’s Representatives, 6 Prospect Street, Midland Park, New Jersey 07432, 1 800 431-2804
E. Dictionary of Occupational Titles (4th Ed., Revised 1991), U.S. Department of Labor
F. Classification of Jobs, Fields and Fields (4th Ed. 1992)
G. Unskilled Employment Statistics Quarterly, U.S., United States Publishing Co., 3400 Strong Ave., P.O. Box 6762, Kansas City, KS 66106
H. Social Security Practice Guide, Matthew Bender
I. The Merck Manual
J. A good medical dictionary, such as Doreland’s or Steadman’s
K. Greatful Med, U.S. Department of Commerce, National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161, 730 487-4650, and the National Library of Medicine, 800 272-4787.
L. Physician’s Desk Reference, Merck Co.
M. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), American Psychiatric Association.
N. Enhanced Guide for Occupational Exploration, JIST Works, 720 N. Park Avenue, Indianapolis, IN 46202.
O. Occupational Outlook Handbook, U.S. Department of Labor.
A. DOT definition, Order Clerk
B. DOT definition, Charge-Account Clerk
C. DOT definition, Weave-Defect-Charting Clerk
D. Classification of Jobs, Field & Field; Elliott & Fitzpatrick, Inc. (4th Ed. 1992), p. 1-33 (Order Clerk)
E. Employment Statistics Quarterly (Order Clerk)
F. Classification of Jobs, Field & Field; Elliott & Fitzpatrick, Inc. (4th Ed. 1992), p. 1-33 (Charge-account Clerk)
G. Employment Statistics Quarterly (Charge-account Clerk)
H. Classification of Jobs, Field & Field; Elliott & Fitzpatrick, Inc. (4th Ed. 1992), p. 1-33 (Weave-defect-charting Clerk)
I. Employment Statistics Quarterly (Weave-defect-charting Clerk)
J. Classification of Jobs, Field & Field; Elliott & Fitzpatrick, Inc. (4th Ed. 1992), p. 1-34 (Cashier II) (With interpretive guide)
Go back to CROSS-EXAMINING VOCATIONAL EXPERTS.