Telephonic Testimony at Social Security Disability (SSD) ALJ Hearings – Can you hear me now?
More and more, SSD practitioners have been seeing Medical Examiners (ME’s) and Vocational Experts (VE’s) testifying at hearings via telephone. This telephonic testimony was admitted by the Administrative Law Judge (ALJ), despite concerns of unfairness raised by claimants’ 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 ALJ’s allowing this testimony frequently, most likely to due to the fact that 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, winning oftentimes comes down to the ALJ’s balancing of the credibility of the claimant, treating physicians, and the experts. When it is the attorney’s opportunity to inquire of 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).
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 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 their best interest to do so. Additionally, it’s important to note that the new rule allows for the claimant to request to appear by telephone as well.
With questions, comments or suggestions, please call Peter Casciano, Esq. at (240) 240-2872
or email at peter@cascianolawgroup.com.