1. NOSSCR MAY 2011 CROSS EXAMINING THE ME ON CONSISTENCIES IN THE FILE AND GIVING THE CLAIMANT’S TREATING PHYSICIAN CONTROLLING WEIGHT NOSSCR MAY 2011 -NEIL H. GOOD

3. What are the goals of this cross exam? Make the ME admit that the doctor is a treating source 2. Make the ME give controlling weight to your treating source 3. Make the ME admit the treating source opinion should have the has the greatest NOSSCR MAY 2011 -NEIL H. GOOD

4. What Social Security Rules Apply? Medical and Other Evidence of your Impairments 20 CFR 1513. Acceptable Medical Source. Define Treating Source 20 CFR 404.1502 (treating source) 3. Evaluating Opinion Evidence. 20 CFR 1527 (treating relationship) 4. Giving Controlling Weight to Medical opinion. SSR 96-2p. NOSSCR MAY 2011 -NEIL H. GOOD

5. DEFINITIION OF TREATING SOURCE Treating source means your own physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s). 20 CFR 404.1502 NOSSCR MAY 2011 -NEIL H. GOOD

6. Evaluating (Opinion) Evidence The phrasing of the questions comes from 20 CFR 404.1527(C). (1) If all of the evidence we receive, including all medical opinion(s), is consistent, and there is sufficient evidence for us to decide whether you are disabled, we will make our determination or decision based on that evidence. (2) If any of the evidence in your case record, including any medical opinion(s), is inconsistent with other evidence or is internally inconsistent, we will weigh all of the evidence and see whether we can decide whether you are disabled based on the evidence we have. (3) If the evidence is consistent but we do not have sufficient evidence to decide whether you are disabled, or if after weighing the evidence we decide we cannot reach a conclusion about whether you are disabled, we will try to obtain additional evidence under the provisions of §§404.1512 and404.1519 through 404.1519h. We will request additional existing records, recontact your treating sources or any other examining sources, ask you to undergo a consultative examination at our expense, or ask you or others for more information. We will consider any additional evidence we receive together with the evidence we already have. (4) When there are inconsistencies in the evidence that cannot be resolved, or when despite efforts to obtain additional evidence the evidence is not complete, we will make a determination or decision based on the evidence we have. NOSSCR MAY 2011 -NEIL H. GOOD

7. Weighing Medical Opinions 20 CFR 404.1527(d) Examining Relationship-more weight if examined Treating Relationship-more weight Controlling weight if (a)well supported by medically acceptable clinical and laboratory diagnostic techniques (b) not inconsistent with other substantial evidence in your case. No controlling weight- they will give a good reason. (i)length of treatment and frequency of exams (ii) Nature and extent of treating relationship Supportability-better explanation medical signs and laboratory findings. Consistent with record as a whole. Specialization-greater weight to a specialist Other factors- Worker’s Comp doctor, public clinic…. NOSSCR MAY 2011 -NEIL H. GOOD

8. Controlling Weight to Treating To Treating Source Medical Opinions SSR 96-2p 1. To give controlling weight to a treating doctor’s medical opinion it must be: well supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the record. (i) not inconsistent- indicates the opinion is well supported but need not be supported directly by all of the other evidence as long as there is no other substantial evidence in the record that contradicts or conflicts with the opinion.(c) 2. Adopting opinion for greatest weight-not usually 3. The “Good Reasons” for the weight given. NOSSCR MAY 2011 -NEIL H. GOOD

9. How do you prepare? General comments. Compare rules of Evidence to SS hearing. Cross examination techniques. Prepare a cross exam from the file. Decide what the goals are. Formulate the questions. NOSSCR MAY 2011 -NEIL H. GOOD

10. General Comments This is about control Be low key Be professional Be efficient in your questioning One fact one question, except hypos This is about setting up the ME Don’t go in for the quick kill NOSSCR MAY 2011 -NEIL H. GOOD

11. General Comment 8. Use fact based question Pin them the medical records Stay away from the ME’s opinions, because we don’t know what they are until the hearing. 11. FRE 705 deals with disclosure of facts and data underlying opinions in the notes it says all info disclosed in advance FRCP 26(b)(4). NOSSCR MAY 2011 -NEIL H. GOOD

12. SS Hearing vs Rule of Evidence No foundations No formal objections Beyond the scope of evidence Assumes facts not in evidence Beyond the experts field of expertise There are not form objections 3. No requirement evidence exists NOSSCR MAY 2011 -NEIL H. GOOD

13. Cross Exam Techniques Repeat the question Ask the ME if he did not understand Ask why the Me why won’t answer the question Ask the question in the apposite Narrow the question Ask for judicial intervention If the judge interrupts its answered be ready NOSSCR MAY 2011 -NEIL H. GOOD

14. Cross Exam Technique Formulating questions Yes No Question Maybe Unrelated run on ALJ intervention NOSSCR MAY 2011 -NEIL H. GOOD

15. Cross Exam Sample Question Have impeachment material ready. Q. Do you agree that all pain is subjective? A. No. Q. Well would you agree that symptoms, such as pain are subjective and difficult to quantify? So then you disagree with Social Security’s position in CFR404.1529 where it says that, correct. Q. Would you agree that when the claimant wrote in her ADL questionnaire pain standing while showering is consistent with the treating doctors opinion the claimant is not capable of standing for 15 minutes. NOSSCR MAY 2011 -NEIL H. GOOD

16. Planning a Cross Exam Read the file- note dates and objective test Figure out your goals Plan the Cross examination a. Set up questions first b. Reinforce favorable information c. Illicit difficult opinions –SSR’s d. Impeach unfavorable information NOSSCR MAY 2011 -NEIL H. GOOD

17. Cross Exam Remember Be professional. Be efficient. Be in control. Don’t get hostile. Don’t argue stay in control. You are trying to get them to do this things. NOSSCR MAY 2011 -NEIL H. GOOD

18. Sample Cross Un-operated herniated disk NOSSCR MAY 2011 -NEIL H. GOOD