Nassau: 366 North Broadway Suite 410 Jericho, NY 11753
Suffolk: 445 Broad Hollow Road Suite 25 Melville, NY 11747
Call Us Toll-Free: (888) 572-0861 Email: jd@iwantmydisability.com
I represent a 49 year old former pastry chef who had a hearing for Social Security Disability (“SSD”) benefits before Administrative Law Judge (“ALJ”) Ronald Waldman. The claimant’s treating orthopedist provided diagnostic tests and treatment records that supported his opinion that the claimant could not do any type of work. Moreover, under the Medical – Vocational rules, the claimant would have to be found disabled even if she could do sedentary work.
After the hearing, the ALJ sent interrogatories to a general surgeon named Dr. Thomas H. Weiss who has not practiced medicine for nearly twenty years. It was unclear why the ALJ did not pose the interrogatories to the treating orthopedist, especially since his opinion was well supported. Dr. Weiss made medical findings without ever examining the claimant, which were equivocal.
New York law holds that a claimant has a due process right to cross-examine an expert who issues a post-hearing report. Consequently, I advised the ALJ that if he intended to rely on Weiss’ report to deny SSD benefits, then the claimant would invoke her right to cross-examine the expert.
The ALJ issued a fully favorable decision today, which obviated the need to cross examine the expert. The ALJ gave the treating physician’s opinion more weight than the expert’s opinion on the grounds that it was more consistent with the record as a whole, which raises the question why the interrogatories were needed.
Although an ALJ may not ultimately rely on a post hearing expert’s opinion to deny SSD benefits, it is important to preserve the right to cross examine the expert in case the report is adverse or equivocal. Appeals Council reviews are not always thorough, and a supplemental hearing to cross examine the expert is needed in order to present a complete record for judicial review.
Previous NextDISCLAIMER This website provides general information on disability law topics as a public service. Information is intended to be as accurate and current as possible, but should not be relied on as legal advice. No attorney/client relationship is created by viewing or using the content on this website. Each legal problem is different, and past performance does not guarantee future results. You should not act on any of the information contained in this site without first consulting legal counsel, which is why readers are advised to seek experienced legal representation in connection with disability related issues. Our Internet links are not associated with us, and we do not guarantee the accuracy of, any information contained in any link. Past performance doesn’t guarantee future results.
Attorney Advertising
Copyright © 2023, Law Offices of Jeffrey Delott
Site Powered By: WebDesignYou