Posted by TENA/DIAMOND on 3/23/2009, 9:39 pm, in reply to "Re: Tips for Winning a Fibromyalgia or Chronic Fatigue Syndrome Disability Case#2"
The Medical Expert
In some cases, your Judge will call a Medical Expert as well as a Vocational Expert. In our experience, a Judge will call a Medical Expert:
• If your medical record is long and complicated;
• If you have been diagnosed with multiple conditions;
• If there is contradictory information in your medical record.
Some Judges call Medical Experts (also called ME’s) frequently. Other judges call them rarely. Currently, the ME panel includes psychiatrists, psychologists, orthopedists, internists, cardiologists, and other specialists.
It has been our experience that the quality of testimony from various medical experts varies widely. Some Medical Experts testify frequently and understand the underlying vocational nature of a Social Security case. Other ME’s provide very little help.
Your attorney is permitted to cross examine the ME, either to clarify a point or to discredit the testimony if it is out of line.
Vocational Expert testimony, by contrast, is usually much more consistent and predictable than Medical Expert testimony.
Where do you sit and who says what?
When you enter the hearing room, you will be directed to sit in a specific chair, usually one that is facing the Judge. The Judge will introduce himself/herself along with the Hearing Assistant and the Vocational and/or Medical Expert witnesses. He will then ask your attorney to state his/her name. The Judge will then read a very brief statement setting out the issues to be heard. In most cases, he will ask your lawyer to waive a formal reading of the issue.
The Judge will then ask your lawyer if he/she has any objections to exhibits in the record and if there are any outstanding records not in your file.
One of the things you should expect from your lawyer is a diligent effort to obtain up-to-date copies of your medical records. Remember, the Hearing Office will not update your records - this is your responsibility. It has been our experience that your Judge will be upset (and may even postpone the hearing) if important medical reports are missing. For this reason, you should contact your lawyer’s office regularly to advise them of new treatment, new doctors, etc.
Assuming no objections, the Judge will swear you in to tell the truth. If your religious beliefs do not permit you to take a sworn oath, you may affirm that your statements will be true.
The Judge may then ask your lawyer for an Opening Statement. Again, some Judges do and others do not.
Your testimony
Every Judge has a different technique with regard to questions and testimony. Most Judges will ask all the questions, offering your lawyer a chance to follow up. Other Judges leave all questioning to your lawyer. The subjects covered in your direct examination include:
• Background information - your age, education, marital status, living arrangements (home, apartment, etc.)
• Discussion of past work as performed - lifting, carrying, supervisory roles, etc.
• Specific discussion of medical problems and activity limitations.
What you must remember when testifying
The most important things for you to remember when testifying are as follows:
• Tell the truth.
• Be specific - instead of saying "I can’t walk very far and I can’t lift very much," say "It’s about 25 yards to my mailbox. When I get to the mailbox, I have to stop because my knees hurt so bad and my chest hurts. When I come back, I have to support myself on a fence so I won’t lose my balance" "As far as lifting, I tried to lift a gallon of milk about a month ago, but I could not hold it, even with both hands, and it fell and spilled all over the floor."
• It is very important that you remember and practice being specific. It has been our experience that you will be nervous, and that at a hearing, it will be hard to think about how much you can lift, how far you can walk, etc. Practice ahead of time!
• Be very descriptive when describing pain. Don’t say "it hurts a lot." Instead, say "when I get a migraine, I can’t do anything. I feel nauseated and sick. I turn off the lights, lie in bed with a cold compress on my forehead, and try not to think at all. It usually takes my medicine about an hour to kick in - even that does not help - it just puts me to sleep."
• If you need to stand up and walk around, do so. Judges don’t mind if you have to stretch out. This is especially important if you testify that you can sit without interruption for no more than 15 minutes, then sit still at your hearing for an hour.
• Say "yes" or "no," not "uh-huh" or "huh?" or just nod or shake your head. Remember that your hearing is being tape recorded.
• Don’t curse.
• Dress neatly - you don’t need your Sunday best, but you should avoid blue jeans and T-shirts.
• Bring your bottles of medicine - the Judge may want to see them.
• Your attitude during your testimony is important. Remember that your Judge sees claimants every day who want benefits. Your attitude ought to be "if I could work I would work." Describe for the Judge what you did and how you enjoyed being productive and useful.
• Don’t tell the Judge that you are "disabled" - that is his job to decide. After listening to your testimony, the Judge will then take the Expert Witness testimony and ask questions of the Expert Witnesses. Your attorney will also be given an opportunity to ask questions of the Expert Witnesses.
Finally, the Judge may ask you if you have any final comments. If everything was covered in your testimony, its OK to say "no." Respect the fact that the Judge has other hearings and time constraints.
In most cases, the Judge will not issue a decision at the end of the hearing. You can expect to receive a written decision in four to six weeks, sometimes longer.
Note: The comments and opinions expressed here should not be considered legal advice, as every Social Security Disability case is different and depends on your individual case information. Further, the author makes no warranty, express or implied, about the accuracy or reliability of this information. You should not act or rely on any information without seeking the advice of an attorney or qualified non-attorney representative.
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* Jonathan Ginsberg is a practicing Social Security attorney in Atlanta. This material is reproduced with kind permission of the author from his "Social Security Disability" resource website - http://www.4socialsecuritydisability.net . © 2007, Six Point Advertrising and Marketing LLC. In addition to his website, Mr. Ginsberg maintains a blog (http://www.ssdanswers.com) where patients may submit questions and receive professional responses; and an Internet Social Security Disability radio program featuring Q&A and interviews "about winning case strategies and forthcoming changes to the disability adjudication process."
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