I-2-6-70.Testimony of a Medical Expert
Last Update: 9/2/05 (Transmittal I-2-64)
A. Prehearing Actions
When an ALJ determines that the testimony of a Medical Expert (ME) is needed at the hearing (See I-2-5-30 through I-2-5-44 for instructions on obtaining testimony or written medical opinion from an ME), the ALJ must:
have no substantive contact related to the merits of the case with the ME except at the hearing or in writing, and any such writing shall be made an exhibit;
send copies of any correspondence between the ALJ and the ME to the claimant and make such correspondence an exhibit; and
request that the ME examine any pertinent evidence received between the time the ME completed the case study and the time of the hearing.
When an ME is scheduled to testify at a hearing, the HO staff must so notify the claimant of this appearance by placing a statement to that effect in the “REMARKS” section of the Notice of Hearing.
An ALJ must obtain testimony from a medical expert in order to determine whether the claimant's impairments medically “equal” or are the functional equivalent of a medical listing. SSR 86-8.
An ALJ is encouraged to consult with a medical expert when the claimant alleges disability that began prior to his or her DLI and the facts may conceivably support the claim. SSR 83-20.
B. Conduct of the Hearing
At the hearing, the ALJ must advise the claimant of the reason for the ME's presence and explain the procedures to be followed.
The ME may attend the entire hearing, but this is not required. If the ME was not present to hear pertinent testimony, e.g., testimony regarding the claimant's current medications, sources and types of treatment, etc., the ALJ will summarize the testimony for the ME on the record.
After administering the oath or affirmation, the ALJ must:
“qualify” the ME by eliciting information regarding his or her impartiality, expertise, professional qualifications, etc.;
ask the claimant and the representative if they have any objections to the ME testifying; and
rule on any objections. The ALJ's ruling may be on the record or in narrative format which shall then be made an exhibit. The ruling may also be addressed in the body of the ALJ decision.
C. Questioning the ME
The ALJ will ask the ME questions designed to elicit clear and complete information (See I-2-5-93 Sample - Interrogatories to Medical Expert.). The claimant and the representative have the right to question the ME fully on any pertinent matter within the ME's area of expertise. However, the ALJ will determine when they may exercise this right and the appropriateness of any questions asked or answers given. For example:
If the ME's replies are ambiguous or overly technical, the ALJ will follow up with more specific questions in order to obtain a response in terms understandable to the average layperson.
The ALJ will not permit the ME to respond to questions on non-medical matters or to draw conclusions not within the ME's province; e.g., regarding vocational factors or the resolution of ultimate issues of fact or law.
The ALJ will not ask or allow the ME to conduct any type of physical or mental status examination of the claimant during the hearing.
The ME may respond to questions concerning the effects of the claimant's medical treatment on the claimant's ability to engage in work related activities.