SSD practitioners have been seeing an increasing number of Medical Examiners (MEs) and Vocational Experts (VEs) testifying at hearings via telephone. Telephonic testimony was admitted by the Administrative Law Judge (ALJ) despite concerns of unfairness raised by claimants’ SSD attorneys.
Prior to June 20, 2013, there were no specific SSA regulations that permitted expert testimony to be presented telephonically at a claimant’s hearing. However, we saw ALJs frequently allowing the telephonic testimony, most likely because it was easier on the ALJ and expert, and because claimant’s representatives were not objecting as sternly as they should have.
It’s important for expert testimony to occur in person or by video, because in close cases, the final verdict often comes down to the ALJ balancing the credibility of the claimant, treating physicians, and experts. When it’s time for the SSD lawyer to question the expert, or “cross-examine” them, much meaning can be lost over the telephone. This is partly the reason why many state level and federal courts permit telephonic testimony only when “good cause” or “exceptional circumstances” are shown. See, for example, Md. Rule 2-513 (Testimony Taken by Telephone).
New SSA Regulations Regarding Telephonic Testimony
The SSA issued a new regulation on this issue, effective June 20, 2013, that specifically permits telephonic testimony provided the opposing party is given advanced notice. However, it is important to note that this is not the end of the issue. Upon receiving advanced notice, if the claimant (or their SSD attorney) objects to telephonic testimony, the ALJ must examine the circumstances of the case and decide what type of testimony should be allowed.
Claimants should be aware of this procedural issue and object to telephonic testimony by an expert if it is in their best interest to do so. It’s also important to note that the new SSA regulations allow the claimant to request to appear by telephone as well.
With questions, comments, or suggestions regarding an upcoming ALJ hearing in the Maryland area and telephonic testimony, please call Peter Casciano, Esq. at 301-244-4523 or email pcasciano@a-f.net.