Every time I go to a NOSSCR conference, I hope to take back a couple of things that I can use on a regular basis. Last week at San Antonio was no exception. The one thing that stands out was a case I heard about during the Second Circuit meeting.
The case is called Edwards v. Astrue, and was issued by Judge Mark Kravitz in Connecticut last August. According to the attorney who represented the Social Security claimant, Judge Kravitz ruled that an ALJ cannot allow a hearing expert to testify by telephone over the objection of a claimant. I googled the facts on my iphone as he described the case, and found it on Justia. Much to my surprise, Judge Kravitz did reject the ALJ's decision denying the claimant disability benefits because the medical expert was allowed to testify telephonically.
When I returned from the NOSSCR conference, I had Edwards published on Westlaw. Its cite is Edwards v. Astrue, 2011 WL 3490024 (D.Ct. Aug. 10, 2011). Why is Edwards important?
Some ALJs, like the five ALJs accused of anti-claimant bias in the Queens Class Action, have hearing experts from outside the area testify by telephone. The ALJs eschew the rules that require them to select experts in rotation, and hand pick those experts who they know from experience will testify adversely to claimants. Edwards reduces the ability of ALJs to cherry pick bad experts.
If you believe that an ALJ is improperly relying on a hearing expert who testifies telephonically, then object. You have the right to confront a witness, especially an adverse one. I would also suggest making FOIA requests to see how often ALJs use experts. I think NOSCCR should pressure the SSA to publish that information annually, or make annual FOIA requests for that information on behalf of its membership.