I-2-5-39.The Medical Expert's Testimony
Last Update: 9/28/05 (Transmittal I-2-68)
During the opening statement, the ALJ must explain why ME testimony is necessary. The ME may attend the entire hearing, but this is not required. Before the ME testifies, the ALJ must:
ensure on the record that the ME has examined all medical and other evidence of record;
ensure that the record contains an accurate statement of the ME's professional qualifications;
give the claimant and the representative an opportunity to ask the ME questions about his or her professional qualifications: and
summarize the opening statement or relevant testimony on the record if the ME was not present.
ALL ME testimony must be on the record.
The ALJ should take care to elicit useful and objective testimony from the ME. For examples of the types of questions the ALJ might ask, see I-2-5-93 Sample-Interrogatories to Medical Expert.
If the ME's reply to an ALJ's question is ambiguous or overly technical, the ALJ must follow up with more specific questions. An ALJ must not question an ME about any matter which is not within the ME's area of expertise and responsibility. For example, the ALJ must not ask an ME about vocational matters, or how the ALJ should decide the case.
If certain ME testimony is based on an assumption, the ME or ALJ must clearly describe the assumption on the record.
If a claimant raises an objection about an ME's opinion, the ALJ must rule on the objection at the hearing and discuss any ruling in the decision.
B. Obtaining ME Opinion on Medical Equivalency
An ALJ may not ask an ME to decide whether the claimant is disabled. However, there is a requirement in sections 404.1526 and 416.926 of the regulations and in SSR 96-6p for the ALJ to consider the opinion about medical equivalence from a physician or psychologist designated by the Commissioner whenever a claimant is not engaging in SGA and has a severe impairment(s) that does not “meet” the requirements of a listing. In some cases, this requires the ALJ to obtain the testimony of an ME for an opinion of the issue of medical equivalence.
In a case requiring a finding about medical equivalency, the ALJ must first ask the ME to describe the claimant's medical impairment(s). The ALJ must refer the ME to the Listing of Impairments (Appendix 1 to Subpart P) and elicit testimony about which listing(s) is the most appropriate for comparison with the claimant's impairment(s) and the reason that listing(s) was suggested. Instructions on using the listings are at 20 CFR §§ 404.1525, 416.925. Next, the ALJ must ask questions to elicit an opinion from the ME about whether the claimant had or has an impairment(s) which medically equals the criteria of the listing, and why.
Medical equivalency is established when:
for listed impairments, the signs, symptoms and laboratory findings are not identical to those specified for that impairment, but are of equivalent severity;
for unlisted impairments, the signs, symptoms and laboratory findings are equivalent in severity to those of the most closely analogous listed impairment; and
for combined impairments, the combination of signs, symptoms and laboratory findings are equivalent in severity to the
criteria of a listed impairment.
As in any case, the issue of duration may arise if the ME testifies that the claimant's impairment(s) is medically equal to the requirements of a listing. When it is not clear whether the impairment(s) also meets the duration requirement, the ALJ must elicit testimony from the ME on that issue as well.
C. Obtaining ME Opinion To Help the ALJ Determine the Claimant's Residual Functional Capacity (RFC)
An ALJ may not ask an ME to decide what a claimant's RFC is, or whether a claimant is or is not disabled. Such decisions must be made by the ALJ. However, an ALJ may ask an ME to provide information and opinion(s) that will help the ALJ decide these issues, e.g., an ALJ may ask an ME to describe the impact of an impairment on the claimant's ability to concentrate or remember.
An ALJ also may not ask an ME to testify about whether a claimant can work in a competitive work situation or in a particular type of employment, e.g., as a gas station attendant. The vocational aspects of a case (e.g., difficulties a claimant might experience in performing past relevant work or adjusting to a new job, or the adequacy or inadequacy of a claimant's education),are not within an ME's area of expertise.