Treating Testimony

Wednesday, January 25th, 2017

I have always believed that the best evidence that a claimant can present to an administrative law judge (“ALJ”) at a Social Security Disability (“SSD”) hearing is live testimony from a treating physician. An ALJ typically rejects a supportive opinion from a treating physician by claiming it is inconsistent with other evidence or lacks support. An ALJ is duty bound to develop the record. Therefore, at a hearing, the ALJ would have to ask a testifying treating physician to explain the basis for his or her opinion before the ALJ could reject it for lacking consistency or support.

ALJ’s frequently ask a Social Security medical expert (“ME”) to testify in order to create evidence to contradict the supporting opinions of treating physicians. It becomes extremely difficult for an ME to do that when the treating physician is present to rebut the ME.

I represent a former cable installer whose SSD benefits were approved today. The ALJ gave equal weight to the opinions of the ME and the treating physicians, which he rarely, if ever does. I had advised the ALJ that the claimant’s treating physician would be waiting by the telephone to testify at the hearing, but it was unnecessary because the ME testified favorably to the claimant. I doubt that the ME would have testified favorably, or that the ALJ would have provided the opinions of the ME and treating physician equal weight, had the latter not been standing by to testify.

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