I-2-6-70.Testimony of a Medical Expert
Last Update: 6/16/16 (Transmittal I-2-175)
A. Prehearing Actions
When an administrative law judge (ALJ) determines that the testimony of a medical expert (ME) is needed at a hearing (see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-5-34), 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 ensure that any such writing is exhibited; 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 the correspondence an exhibit; and
If the ME is appearing via telephone, confirm the ME's telephone number before the hearing.
When an ME is scheduled to testify at a hearing, 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 a medical listing. See Social Security Ruling (SSR) 86-8: Titles II and XVI: The Sequential Evaluation Process and SSR 96-6p: Policy Interpretation Ruling Titles II and XVI: Consideration of Administrative Findings of Fact by State Agency Medical and Psychological Consultants and Other Program Physicians and Psychologists at the Administrative Law Judge and Appeals Council Levels of Administrative Review; Medical Equivalence.
An ALJ is encouraged to consult with an ME when he or she must make an inference about the onset of disability. SSR 83-20: Titles II and XVI: Onset of Disability.
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 all participants will follow.
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. If additional medical evidence is received at the hearing, the ALJ will provide it to the ME for review before the ME testifies.
All ME testimony must be on the record. After administering the oath or affirmation, the ALJ must:
Ask the ME to confirm his or her impartiality, expertise, and professional qualifications;
Verify the ME has examined all medical and other relevant evidence of record;
Ask the claimant and the representative whether they have any objections to the ME testifying; and
Rule on any objection(s). The ALJ may address the objection(s) on the record during the hearing, in narrative form as a separate exhibit, or 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.
The ALJ will also ensure the following during questioning of the ME:
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 expertise. For example, 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.
If the ME bases certain testimony on an assumption, the ALJ will ask the ME to clearly describe the assumption on the record.
D. Opinion on Medical Equivalence
An ALJ will consider opinions about medical equivalence from a physician or psychologist designated by the Commissioner whenever a claimant is not engaging in substantial gainful activity and has a severe impairment(s) that does not “meet” the requirements of a listing. See 20 CFR 404.1526, 416.926, and SSR 96-6p. Medical equivalence exists when:
Signs, symptoms, and laboratory findings are not identical to those specified in a listed impairment, but are of equivalent severity;
Signs, symptoms, and laboratory findings are equivalent in severity to those of the most closely analogous listed impairment; or
The combination of signs, symptoms, and laboratory findings are equivalent in severity to the criteria of a listed impairment.
An ALJ must obtain ME testimony specific to the issue of medical equivalence if he or she intends to find that the claimant equals the requirements of a listing. See SSR 86-8 and SSR 96-6p.
An ALJ may not ask an ME to decide whether the claimant is disabled.
When questioning an ME about medical equivalence, the ALJ will:
Ask the ME to describe the claimant's medical impairment(s);
Obtain testimony about which listing in the Listing of Impairments (Appendix 1 to 20 CFR Part 404 Subpart P) is the most appropriate for comparison with the claimant's impairment(s) and why;
When applicable, ask the ME whether the claimant's impairment(s) meet the duration requirement; and
Request an opinion from the ME about whether the claimant had or has an impairment(s) that medically equals the criteria of the listing and the reasons for the opinion.
E. Opinion Used to Determine the Claimant's Residual Functional Capacity (RFC)
An ALJ may ask an ME to provide information and an opinion(s) that will help the ALJ establish the claimant's RFC. For example, an ALJ may ask an ME to describe the impact of an impairment on the claimant's ability to concentrate or remember. However, an ALJ may not ask an ME to:
Decide a claimant's RFC;
Determine whether a claimant is disabled; or
Testify about vocational aspects of a case, such as whether a claimant can work in a competitive work situation or in a particular type of employment.