I-2-6-70.Testimony of a Medical Expert
Last Update: 12/12/13 (Transmittal I-2-101)
A. Prehearing Actions
When an administrative law judge (ALJ) determines that the testimony of a medical expert (ME) is needed at the hearing, 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 will be made 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.
Assisting hearing office (HO) staff will:
send copies of any correspondence between the ALJ and the ME to the claimant and make such correspondence an exhibit; and
if the ME is appearing via telephone, contact the ME before the hearing to confirm the telephone number to be used at the hearing.
When an ME is scheduled to testify at a hearing, the HO staff must notify the claimant of this appearance in the “REMARKS” section of the Notice of Hearing. The Notice of Hearing must also specify the manner in which the ME will appear.
An ALJ must obtain testimony from an ME in order to determine whether the claimant's impairments medically “equal” or are the functional equivalent of a medical listing. See Social Security Ruling (SSR) 86-8.
An ALJ is encouraged to consult with an ME when the claimant alleges disability that began before his or her date last insured and the facts may conceivably support the claim. See 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, such as testimony regarding the claimant's current medications or sources and types of treatment, 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, and professional qualifications;
ask the claimant and the representative whether 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 form that is made an exhibit. The ALJ may also address the ruling in the body of his or her decision.
C. Questioning the ME
The ALJ will ask the ME questions designed to elicit clear and complete information. 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 whether questions asked or answers given are appropriate. 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 that is understandable to the average person.
The ALJ will not permit the ME to respond to questions on nonmedical matters or to draw conclusions not within the ME's province, e.g., the ME may not provide opinions regarding vocational factors or the resolution of ultimate issues of fact or law. However, the ME may respond to questions about the effects of the claimant's medical treatment on the claimant's ability to engage in work related activities.
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.