Tuesday, August 23, 2011

Right To Cross Examine Post Hearing Experts

I represent a 49 year old former pastry chef who had a hearing for Social Security Disability (“SSD”) benefits before Administrative Law Judge (“ALJ”) Ronald Waldman. The claimant’s treating orthopedist provided diagnostic tests and treatment records that supported his opinion that the claimant could not do any type of work. Moreover, under the Medical – Vocational rules, the claimant would have to be found disabled even if she could do sedentary work.

After the hearing, the ALJ sent interrogatories to a general surgeon named Dr. Thomas H. Weiss who has not practiced medicine for nearly twenty years. It was unclear why the ALJ did not pose the interrogatories to the treating orthopedist, especially since his opinion was well supported. Dr. Weiss made medical findings without ever examining the claimant, which were equivocal.

New York law holds that a claimant has a due process right to cross-examine an expert who issues a post-hearing report. Consequently, I advised the ALJ that if he intended to rely on Weiss’ report to deny SSD benefits, then the claimant would invoke her right to cross-examine the expert.

The ALJ issued a fully favorable decision today, which obviated the need to cross examine the expert. The ALJ gave the treating physician’s opinion more weight than the expert’s opinion on the grounds that it was more consistent with the record as a whole, which raises the question why the interrogatories were needed.

Although an ALJ may not ultimately rely on a post hearing expert’s opinion to deny SSD benefits, it is important to preserve the right to cross examine the expert in case the report is adverse or equivocal. Appeals Council reviews are not always thorough, and a supplemental hearing to cross examine the expert is needed in order to present a complete record for judicial review.

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