There is a truly excellent decision by Connecticut U.S. District Court Judge Mark Kravitz on the topic of medical expert testimony by telephone at a Social Security disability hearing. The case is Edwards v. Astrue (D. Conn. August 10, 2011). Download Edwards v. Astrue.
Kudos to New York attorney Jeff Delott, who wrote about the Edwards decision recently on his legal blog, after learning about it at the Second Circuit meeting at the Fall NOSSCR Conference. Please read Jeff's post about the Edwards decision.
The Edwards decision concerns telephone testimony by a medical expert witness. Sometimes an administrative law judge arranges for a medical expert (ME) to testify at a disability hearing. A medical expert is always a doctor, when the issue is the claimant's physical impairments. The ME is usually psychologist when an opinion regarding the claimant's mental impairments is desired (occasionally, both a doctor and a psychologist will appear at a hearing). A medical expert is available to assist the judge to determine a claimant's medically determinable impairments, and whether or not a medical condition meets or equals a listed impairment. Frequently the ME will offer an opinion on the claimant's functional limitations.
Certain judges use medical experts more often than others. We disability lawyers know which judges typically utilize medical experts, and we know the medical experts who routinely testify in our locale.
Sometimes the medical expert is not going to be friendly to the claimant's cause. There are some bad apples out there in medical expert land, who are known to consistently (and often forcefully) testify that a claimant's impairments do not meet a listing and do not impose disabling functional limitations. When the judge lines up a "bad apple" expert to testify at your hearing, you know you have an uphill battle.
Since these bad apple medical experts tend to testify at hearings all over the country, they almost always testify at the hearing by telephone. Which brings us to Edwards v. Astrue, and Judge Kravitz's truly excellent decision.
If you practice in this area, you simply must read the Edwards decision. You can start at section IV on page 8.
In a nutshell, Social Security's regulations do not permit or prohibit expert testimony by telephone. The regulations explicitly authorize in person testimony and video testimony, but are silent on the issue of testimony via telephone by medical experts. The Social Security Hearings, Appeals and Litigation Law Manual ("HALLEX"), which does not have the force of regulation, does allow expert testimony by telephone. Expert testimony by phone has been a gray area for disability law practitioners.
Judge Kravitz made a thorough analysis of the regulations, the regulatory background, and cases from other districts. He then decided:
ALJs must provide claimants with notice that a witness will be testifying telephonically, and absent a new rule, medical experts should not be allowed to testify telephonically over a claimant's timely objection. Decision at page 14.
The judge also found that the lack of notice regarding telephone testimony and allowing the testimony over the claimant's timely objection was not harmless error (another important finding of the decision). Further, the telephonic testimony of the medical expert was the sole basis of the judge's remand order; other appealed issues were not reached.
One of the lessons of the Edwards case is that, if you have a medical expert testifying by telephone, you must object as soon as you know the expert will not be there in person. Again, for those practicing in this area, you simply must read the Edwards decision. It is truly excellent.