Question:

I have a disability hearing scheduled for next month in my Multiple Sclerosis disability case. As I have been unable to work for over a year, I have limited financial resources. I have read that an Administrative Law Judge often solicits the testimony of a medical expert on complex medical issues. Here are my questions: Who is responsible for assuring that the medical expert testifies at my Social Security disability hearing? And who compensates the medical expert? Is there any responsibility on my part?

My answer:

This is a great question and one I have not actually been asked. You are correct that Judges (ALJs) often seek the testimony of medical expert witnesses (MEs) in complex medical situations like yours.  Since ALJ’s have no direct communication with medical professionals and are not medically trained, testimony from medical experts provide ALJ’s with a more complete and detailed understanding of your medical and/or mental situation prior to his/her issuance of an opinion in your matter.

Here’s how it works: Each hearing office maintains a roster of medical experts who routinely testify as expert witnesses in disability hearings. If you spend enough time at any one Social Security hearing office, then you will likely start to notice the familiar faces of some of these medical experts, many of which are retired doctors who have a wealth of medical knowledge that can be used to help the judge make a well-informed decision.

Since the ALJ is the individual that solicits the expert’s opinion, the SSA incurs the costs of paying the medical expert. So in answer to your question, you are not responsible for compensating the ME. It is all taken care of by the SSA.

Also, since you are pursuing a Multiple Sclerosis disability claim, I would like to tell you and any one else interested that I have been working on a website dedicated solely to the topic of Multiple Sclerosis and Social Security Disability. Because I have seen a lot of MS disability claims over the years, I figured I would  share some tips and knowledge on the subject. Please visit the site by clicking on the link, and be sure to let me know what you think!

Post from: Social Security Disability Blog

Q & A: Who is responsible for calling upon and compensating the Medical Expert witness?

I summarized the various case strategies that I use in multiple sclerosis cases on my Georgia Social Security Disability web site so I will not repeat that detailed summary here.  A couple of points that do jump out at me:

• because MS is a disease that progresses through a series of flare-ups and remissions, it is not uncommon for my client to experience periods of functioning that could allow for minimally physically demanding work. I get past this issue by eliciting testimony from my client that stress from attempting to work (including preparing for work, traveling to work and performing work) can cause a remission period to shrink, and that my client's functioning during a remission period is enhanced by staying in a comfortable, familiar home environment
• ideally, an MS case file should contain doctor or ER visits in intervals of 3 months or less. However, if you cannot afford treatment or otherwise do not go to your doctor that often, a personal diary detailing symptoms can serve as viable evidence
• judges recognize that MS is a degenerative condition that does not improve over time. There are a number of neuromuscular diseases related to MS that may comprise your diagnosis. It is important to have your doctor reference that your associated disease falls within the MS family

I also found that in each of the cases I tried, my clients came across as exceedingly credible – people that had long, consistent work histories and who clearly would prefer to land back in the work force. In many ways, your credibility as a claimant serves as the foundation for your case and the combination of believable testimony, a definitive diagnosis with known, serious symptoms and a solid work history makes for a disability case that will likely succeed.

Post from: Social Security Disability Blog

Strategies for Winning Multiple Sclerosis Disability Claims

My on-the-record request also serve as a pre-hearing brief for case that is on my calendar.  However, if I can convince the judge to approve my case without requiring me to drive or take the train downtown, my client can avoid the stress of appearing at a hearing and I can save myself several hours of time.

Recently I was schedule to try a case involving a 63 year old woman with documented back issues, diabetes and a neuromuscular disease similar to multiple sclerosis.  She was already receiving early retirement benefits, so the only issue was whether she was entitled to past due benefits from age 59, when she stopped working through age 62, when she began receiving early retirement benefits.

In my view this was a fairly clear cut case and there were several arguments to support our claim.  I set out my arguments in an on-the-record decision and emailed it to the judge, who I knew to be a fair and reasonable person.   A few days after I submitted my request I received an email back advising me that the judge was prepared to grant this claim.

The judge agreed to let me appear telephonically so on the morning of the hearing, the hearing assistant called me and we recorded a 5 minute hearing in which the judge announced his favorable bench decision.   Since I was at home that morning, I "appeared" by telephone while I was sitting in a comfortable chair in my t-shirt and gym shorts.

I redacted the personal information from the case, and published my on-the-record request on one of my Georgia Social Security disability web sites.   Click the link to read my argument.

Post from: Social Security Disability Blog

Sample On-the-Record Argument Available for Your Review

I see this a lot among self employed people, or salespeople who are paid in cash and do not have money withheld for Social Security taxes.   Here is an email I received from the wife of such a claimant:

I have worked and paid into social security since 1965.  My husband worked on and off for the past 30 years, but has not regularly paid in to social security.  Ten years ago he was diagnosed with MS and he has been unable to work at all.  I went to Social Security to ask if I could get disability payments for him and they told me that I earned too much money ($45,000 annually).  I am now about to retire at age 60 and would like to collect disability for him.  I've gone through web searches and there is such a mire of information – I don't know where to begin.  Can he collect against the money I've paid in?  He is completely dependent on me.

Jonathan's response: unfortunately I think that you are out of luck. If your husband did not earn enough quarter hours of credit, he is not "insured" for Title II disability.  He cannot claim disability based on your earnings record and your earnings will effectively offset any claim he might have for SSI.

You may want to request an earnings and benefit statement (form 7004) to determine if there was every a point where he was insured for Title II disability.  If he was insured at one point and you have medical support to argue that he was unable to work at that point in time, he could collect from SSDI.

Often, Social Security representatives will look to see if a potential claimant is currently insured.   However, this does not take into account that some people wait two, three, four or more years after "becoming disabled" before they apply.  If you know your "date last insured" for Title II and your "onset date" (the date you meet the definition of disability) is prior to your date last insured, you can still collect, even if you are not insured at the time you apply.

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Can Claimant With Sporadic Work History Collect on Working Spouse's Earnings Record?