The ABC’s of Cross-Examining Vocational Experts and Medical Advisors

I. THE USE OF VOCATIONAL AND MEDICAL EXPERT WITNESSES

A. WHOSE WITNESS IS HE/SHE?

II. PREPARATION FOR CROSS-EXAMINATION

A. TREAT THE CASE AS IMPORTANT

B. PREPARING TO EXAMINE THE MEDICAL ADVISOR OR VOCATIONAL EXPERT

III. THE PROPER GOAL OF CROSS-EXAMINATION

A. CONVINCE THE ALJ

B. FORCE THE ALJ TO PAY

C. PREPARE THE RECORD FOR APPEAL

IV. CROSS-EXAMINATION TECHNIQUES IN GENERAL

A. GET THE WITNESS TO PROVE YOUR CASE

B. GETTING THE WITNESS TO AGREE TO HELPFUL FACTS

C. GENERAL DAMAGE CONTROL TECHNIQUES

1. Qualification

a) Introduce doubt-how firm is the opinion

b) Introduce doubt-how firm is the foundation

c) Introduce doubt as to the qualifications

2. Persuasion

3. Impeachment-the least effective and most difficult

a) The post-hearing attack

b) Showing bias

V. CROSS-EXAMINING MEDICAL ADVISORS

A. MEETING THE LISTING

B. EQUALING THE LISTING

C. FUNCTIONAL LIMITATION

D. THE NEED FOR ADDITIONAL MEDICAL EVIDENCE

E. UNCERTAINTY

F. THE MA’S QUALIFICATIONS

G. RESOLVE CONFLICTS IN THE MEDICAL EVIDENCE

H. THE ONSET DATE WHERE IT NEEDS TO BE “INFERRED”

I. WHETHER PRESCRIBED TREATMENT WOULD HAVE RESTORED THE ABILITY TO WORK (SSR 82-59)

J. WHETHER THERE HAS BEEN SIGNIFICANT MEDICAL IMPROVEMENT

K. DESCRIBING DRUG SIDE-EFFECTS.

VI. CROSS-EXAMINING VOCATIONAL EXPERTS

A. ESSENTIAL TOOLS

1. The DOT

2. The

B. SOME CARDINAL RULES

1. Always ask for DOT numbers of jobs the VE testifies your claimant can do.

2. Never question a VE who has not testified adverse to your client.

3. Always be prepared to present your own hypothetical question.

4. Always assure that the VE has testified regarding the effect of the claimant’s alleged limitations, if found credible. If they are separable, and/or of varying supportability, ask questions about each limitation, or various combinations.

5. Where you have several medical opinions which would preclude work, ask the VE about each one individually. Sometimes it helps to ask about them in many combinations.

C. PAST RELEVANT WORK

1. Identity of past relevant work

2. Exertional, postural, environmental requirements of past relevant work

3. Skill required in past relevant work

a) Skills v. Traits

b) The exact job, not as generally performed

D. PRW AS GENERALLY PERFORMED

E. TRANSFERABILITY OF SKILLS

1. To same or lower skill level

a) The SVP

b) Worker Function ratings

2. Uses the same or similar tools and machines

3. Involves the same or similar raw materials, products, processes or services

4. Factors interfering with transferability

a) Age

b) Medical limitations

c) Mental limitations

F. OTHER WORK

1. Characteristics of the job

2. Numbers of jobs

G. AN EXAMPLE FROM A RECENT BRIEF

1. Use of Reference material to challenge VE testimony

2. VE contradicted Census Reports

VII. USING YOUR OWN VE’S AND MA’S

A. WHEN AND WHY TO GET YOUR OWN EXPERT WITNESS

1. To clear up ambiguities in the record.

2. To fill gaps in the record.

3. To make a preemptive strike against a hostile expert.

VIII. CONCLUSION

IX. RESOURCES (IN NO PARTICULAR ORDER)

X. EXHIBITS

Continue to THE USE OF VOCATIONAL AND MEDICAL EXPERT WITNESSES.