Wednesday, August 6, 2008

ALJs Who Testify for Their Experts

There are about 500,000 Administrative Law Judge (ALJ) hearings each year. I review a minute fraction of them. However, I have never read a hearing transcript where the representative fought with the ALJ over whether the ALJ could essentially testify for his or her medical expert or vocational expert. I fully appreciate that with a cooperative expert, it is difficult to put the genie back in the bottle. I also appreciate that a cooperative expert might very well tag team the representative or even retaliate against the representative for questioning the ALJ's questioning.

Scenario 1

ALJ: Dr. Smith has been previously sworn. Dr. Smith, consider yourself under oath. Given the objective findings, wouldn't it be reasonable to restrict the claimant to light work with no overhead reaching?
Dr. Smith: Of course, Your Honor, a light RFC is eminently reasonable. The very touchstone of rationality. May I be excused? My watch shows it's time for lunch.

Scenario 2

ALJ: Dr. Smith has been previously sworn. Dr. Smith, consider yourself under oath. Wouldn't it be reasonable in light of the objective findings to restrict the claimant to light work with no overhead reaching?
Claimant's Representative: Objection, Your Honor. Can't we just get Dr. Smith's medical opinion? You have basically told Dr. Smith the RFC you prefer. I have had hearings with you and Dr. Smith for years. Without exception, he ratifies as "reasonable" whatever RFC you suggest. He is a human echo chamber. But Dr. Smith should not be your echo chamber, mouthpiece, or sock puppet. Just ask him for his opinion about RFC. Don't ask him whether your proposed RFC is "reasonable."
ALJ: OK, Dr. Smith, what do you yourself believe is the claimant's RFC?
Dr. Smith: Based upon my independent review of the record and conclusion that the record is devoid of any significant objective findings, a medium RFC with overhead reaching would give the claimant every benefit of the doubt. So, in essence I don't agree with your suggested RFC for a limited range of light work.

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