Q & A with Social Security Disability Attorney Andrew Kinney
A: It is up to ALJs. Some regions of the country, such as Minneapolis, have a rotating list of MEs that certain ALJs choose to have appear at Social Security hearings. Other ALJs, especially with rising use of video hearings, do not employ MEs.
Q: What do MEs do at Social Security hearings?
A: MEs give ALJs information about what medical problems you (the “claimant”) have, explain whether these medical conditions are disabling under Social Security law (“meet or equal listings”), and describe how medical conditions limit you.
Q: Are MEs ever wrong at Social Security hearings?
A: Yes. Now, bear in mind that the outcome of some Social Security claims can be unclear. But when the balance of medical evidence swings toward a finding of disability, subjectivity plays too large a role. (Simple proof of subjectivity is the wildly varying approval rates across all Social Security ALJs. Any business would tighten up objective standards in this scenario.)
Generally, in my experience, MEs can be wrong for two reasons. First, some MEs feel the need to say what they believe the ALJs want to hear. Second, some MEs do not prepare properly. In this blog, let’s talk about the first group.
The first group of MEs lets personal motivations interfere with their duty to independently evaluate medical evidence. It is inappropriate, but true. These MEs are inclined to say what they believe ALJs want to hear. Why? They may want the ALJs to approve of what they are saying to get more hearings (increasing pay) or renew their annual contracts (increasing future pay). They may want the hearings to go faster. They may want ALJs to inflate their egos or confirm political biases toward those who do not work. There are a host of other motivations as well.
Q: How do MEs interpret what ALJs “want to hear”?
A: Easy. MEs can listen to the tone and content of ALJ questions to claimants, attorneys, and the MEs themselves. They read into ALJ commentary about attorneys’ opening arguments. They pay attention to ALJ facial expressions that are missed on the audio hearing recordings. The informed cynic in me would also allow for the possibility of pre-hearing, off-the-record ME “discussions.”
Q: How can my Social Security attorney uncover possible ME bias at my Social Security hearing?
A: Experience. At Hoglund Law Offices, we want our Social Security Disability hearing attorneys to fight ME bias. As an attorney in Social Security hearings, I look for ME bias. I listen to the questions, answers, and comments made by everyone in hearings across time. With experience, your Social Security attorney can unveil patterns of ME bias that extend from hearing to hearing. This enables him or her to anticipate how “alternate” medical facts may arise in ME testimony about you.
Q: What can my attorney do to fight possible ME bias at my Social Security disability hearing?
A: Three ways:
- Form questions for you that anticipate ME bias (direct examination),
- Attack bias directly in ME cross-examination, and
- Expose possible errors in opening and closing arguments.
An example may suffice to illustrate these ways in action. If you have bad knees, your attorney may know that your ME will likely ignore the impact of your obesity in your ability to walk. Your Social Security hearing attorney could:
- Mention the requirements of a Social Security ruling about obesity (SSR 02-1p) in opening argument,
- Ask you on direct examination about your attempts to lose weight,
- Ask the ME on cross-examination, “Is obesity always a choice, or is metabolism a contributing factor?”, and
- Identify how the ME testimony ignored the impact of obesity in closing argument.
Q: How do we reduce the possibility of ME bias?
A: Identifying problems is easy. Fighting them is admirable. But fixing them is a challenge. These policy changes may reduce ME bias:
First, allow MEs to appear only by phone. This reduces the likelihood of pre-hearing discussions and the “poker game” played by bad MEs trying to interpret what ALJs may “want to hear.”
Second, base individual ME contract renewals on anonymous ALJ “ME report cards” that are tabulated and ranked using nationwide metrics. Rank each ME on degree of preparation, clarity of opinions, understanding of the relevant law, and professionalism. “Independent” ME testimony should stand on its own and minimize politics.
Third, renew ME contracts independently of all hearing offices. MEs inclined toward being a “favorite” may be less inclined to try to please any one set of ALJs and, instead, just do their jobs.