Was A Video Hearing Needed?

Can Medical Records Be Too Good? I represent a 60 year old guidance counselor with cervical and lumbar radiculopathies, which were supported with very severe EMG and MRI testing. The claimant, who had a 40 year work history with a high salary, also had marked depression according to the treating psychiatrist. The medical evidence was so strong that I was surprised when the Administrative Law Judge (“ALJ”) rejected the claimant’s request for a favorable on-the-record (“OTR”) decision.

Because the OTR was rejected, a hearing was required. The claimant permanently relocated from Long Island to Florida during the application process because the warm weather was better for his health. The ALJ held the hearing in Orlando with the claimant and the vocational expert (“VE”), while I appeared via videoconference at the Jericho hearing office.

The hearing started with my questioning the claimant. About 20-30 minutes into my direct examination of the claimant, the ALJ politely interrupted me to say that he was paying the claim. The VE never even testified. The ALJ explained that the treating doctors’ mental and physical functional capacities were so limited that he felt he needed to see and hear the claimant for himself. The ALJ said that he was concerned that the doctors were focused on trying to help the claimant get benefits, rather than accurately assessing the claimant’s functionality.

The claimant worked for 40 years and earned a good salary, and returned to work after very severe motor vehicle accidents. Of course he only stopped working when he was no longer able to do so. In fact, he worked longer than he should have, and his severely limited ability to work was reflected in his doctors’ limited functional assessments.

It was improper to insist that the claimant appear for a hearing because the ALJ questioned the accuracy of the treating doctors’ functionality reports. The rules make clear that an ALJ is not supposed to make his decision based on a “sit and squirm” test. Rather, as the rules and regulations provide, if the ALJ has concerns about the accuracy or consistency of medical records, then the ALJ has a duty to recontact the treating sources about the records.