Calling All Medical Experts

December 18, 2011

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

We have heard horror stories of vocational experts (VEs) testifying by cell phone while driving across the New York State Thruway.  How about medical experts (MEs) by phone?  HALLEX I-2-5-42 states that live medical expert testimony in person, by video conference, or telephone conference are the preferred methods, although written interrogatories may be used. (HALLEX I-2-5-57 sets forth similar provisions for vocational testimony.)

When asked about ME testimony by phone at a recent NOSSCR (National Organization of Social Security Claimants Representatives) conference, ODAR Deputy Commissioner Glenn Sklar reiterated that a claimant has the right to object to telephone testimony.  He emphasized that the claimant cannot veto such testimony, however.  If the objection is sustained, written interrogatories would be used in lieu of the “live” testimony.  He suggested raising objections as early as possible. 

But how early can a representative object if there is no prior notice that the ME will be “appearing” by telephone?  In a recent decision from the U.S. District Court for Connecticut, the court remanded where the claimant did not have prior notice that the ME would be testifying by telephone.  Edwards v. Astrue, 2011 WL 3490024 (D. Conn August 10, 2011).  Although the court would not go so far as to rule that telephonic testimony was illegal, it found that the failure of the ALJ to give the claimant prior notice of the form of the testimony was not harmless error.  It held that ALJs must provide claimants with notice that a witness will be testifying electronically; absent any new rules, MEs should not be allowed to testify telephonically over a claimant’s timely objection. 

The court agreed that the plaintiff was prejudiced by the lack of notice and by the ALJ’s refusal to sustain her objections. The judge cited Supreme Court holdings on the right to confrontation as essential to fair cross-examination.  He also noted that at least once during the hearing, the ME “cut out,” and admitted that he was having difficulty hearing.  He concluded that these interruptions could have impeded the flow of cross-examination.  Although the ALJ found the ME’s testimony “persuasive,” the District Court Judge could not agree that the ALJ would have reached the same conclusion if the ME had testified in person or by video teleconference.

In his decision, the judge thoroughly reviewed the case law in this area, including those cases finding that telephonic testimony violated SSA’s regulations.  He noted in particular that the Commissioner, after extensive study and review of their efficacy, promulgated regulations governing video teleconferencing.  SSA has not, however, done the same regarding telephonic hearings and testimony.  To the contrary, regulations allowing telephonic testimony at hearings were proposed in 2007 but never promulgated.  Proposed Amendments to the Administrative Law Judge, Appeals Council and Decision Review Board Levels – SSA-2007-0044, published in the Federal Register on October 29, 2007 (72 Fed. Reg. 61218).  The Court “hinted” that in absence of  specific regulations governing such testimony, deference should not be accorded to the  HALLEX provision cited above.

So - keep us informed of what is happening with your ME testimony.  In fact, feel free to contact us telephonically.