Treating Doctor Testimony

Friday, September 11th, 2015

The importance of a treating doctor testifying at a Social Security Disability (“SSD”) hearing before an Administrative Law Judge (“ALJ”) cannot be overstated. The law requires an ALJ to give more weight to the opinion of a treating doctor than a Social Security doctor unless the former’s opinion is contradicted by other evidence or lacks sufficient support.

The ALJ has a duty to develop the record. If an ALJ believes a treating doctor’s opinion is contradicted by other evidence or lacks sufficient support, then the ALJ must ask the doctor to explain the apparent discrepancy. ALJs rarely fulfill that duty. However, when a treating doctor attends a hearing, it becomes unavoidable for the ALJ to ask the doctor to any explain any perceived problem with his opinion. Once the treating doctor explains the basis of the disability opinion, it becomes virtually impossible for the ALJ to reject it.

I represent a 54 year old former professional gambler with neck and back problems whose SSD application was approved today. At the hearing, the ALJ indicated that there was insufficient evidence to explain why the claimant was disabled. The claimant’s neurosurgeon testified about the reasons why the claimant was unable to work on a sustained basis. The ALJ gave the neurosurgeon’s opinion great weight, and approved the SSD application.

During the past couple of years, the SSA has significantly increased the number of times that it has medical and vocational experts appear by telephone to testify. The SSA even promulgated new regulations to allow ALJs to receive expert testimony telephonically.

The SSA should clarify the rules to specify that ALJs should also receive testimony from treating doctors telephonically. In workers compensation cases, treating doctors have been deposed by telephone for decades. There is absolutely no reason why treating doctors should be precluded from testifying telephonically in SSD cases.

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