The Use of a Medical Expert in a Social Security Disability Case
By Matt Greenbaum
I.
Brief Overview &#; Types of Medical Evidence &#; A Treating Physician’s Reports
Treatment more than once
Claimant or attorney merely seeking an evaluation
Consultative Physicians
Examines patient once only for purpose of providing diagnosis.
SSA required to send claimant for CE whenever examination will aid in bringing out relevant facts.
Weakness of CE
One-shot visit
Limited background
No evaluation of pain &#; Torres v. Bowen, F. Supp. (S.D.N.Y. )
Review Physicians
Purpose is to read medical evidence in file to determine whether listing is met or equalled and to determine R.F.C.
Medical Experts
Non-examining physicians
Testify at ALJ hearings
Generally appear at ALJ’s request
Claimant may bring his own medical expert.
II. Comparative Weight Given To Different Evidence
Treating Physician Report
Every circuit but the Seventh Circuit, favors treating physicians.
Fifth Circuit Caselaw
Treating physician’s report is to be accorded &#;considerable weight.&#; Moore v. Sullivan, F.2d (5th Cir. ).
Though not binding, the treating physician’s reports are given greater weight than a consulting physician’s report, absent good cause. Scott v. Heckler, F.2d (5th Cir. ).
Report not supported by clinical findings. Shipley v. Secretary, F2.d (5th Cir. ).
Contradictory Statements of other physicians. Hollis v. Bowen, F.2d (5th Cir. ).
Treating physician not accorded greater weight than consultative report. Adams v. Bowen, F.2d (5th Cir. ).
Specialist’s report accorded grater weight than non- specialist’s report. Moore v. Sullivan, F.2d (5th Cir. ).
May cause conflict where consultative physician is specialist and treating physician is general practitioner.
ALJ has discretion to reject opinion of physician if evidence is to contrary. Bradley v. Bowen, F.2d (5th Cir. ).
Weight Given to Medical Expert’s Testimony
Should be more than review physician, because of cross- examination, his ability to observe claimant, and his review of the most current medical evidence.
Comparison to examining physician: &#;Evidence provided by a single non-examining physician is not entitled to enough weight to overcome that of even one examining physician (let alone a treating physician), unless: (1) other evidence in the record corroborates that of the non-examining physician: and (2) the Admnistrative Law Judge articulates cogent reasons for rejecting evidence of the examining physician.&#; Jones v. Heckler, F. Supp , (N.D. Ill, )
III. The Role of The Medical Expert
Why Medical Expert is Utilized
Qualifications
Need
Utility
Medical Records
Status of current record
Need for further development
Holistic approach
Different Forms of Presentation
Testimony
Pre-hearing narrative summary
Answer to specific interrogatories
Post-Hearing
May recommend additional development
Post-Hearing review of additional material
Supplemental hearing
IV. Sequence of Medical Expert’s Analysis
Existence of medically determinable impairments
Severity
Singly or in combination
Listings
Meet
Equal
Objective findings to support opinion
Residual Functional Capacity
Limitations disclosed by objective findings
Laboratory tests
Clinical examination
Additional limitations suggested by subjective factors
Pain
Stress
Side-effects of medication
V. Preparing for Hearing With Medical Expert
Theory of the case
Develop a theory of case which supports contention that claimant is disabled.
Identify all portions of the record which support theory.
Background of Medical Expert
Determine whether the doctor is qualified to testify as an expert.
Try to ascertain what doctor’s testimony has been in prior similar cases.
Background of ALJ
Try to ascertain what has happened in prior similar cases where this ALJ uses an M.E.
Try to determine when this ALJ typically utilizes this M.E.
Cross-Examination
Never question an M.E. who has testified that a listing is met or equalled, except as to onset date.
Never ask an M.E. why he feels claimant is not disabled.
Be ready to try to minimize impact of M.E.’s adverse testimony.
Claimant’s treating physician is in better position to evaluate claimant’s medical condition.
Methods for measuring pain and how effect of pain is determined.
Testimony is based solely on review of records and claimant’s demeanor.
Would be better able to assess claimant’s condition if could examine him.
Where M.E. says listing is not met, have him document those parts of medical record that demonstrate that certain aspects of listing are met.
Try not to ask the M.E. for an opinion about the claimant. Just get the doctor to admit that the medical record reflects certain limitations. For example, &#;In Exhibit 20, p.4 Dr. Jones states that claimant cannot bend, is that correct?&#;
VI. Thoughts on Tactics
General Ideas on Cross-Examination
Don’t ask the M.E. a question to which you don’t know the answer or where you suspect a negative answer.
Don’t sum up M.E.’s testimony with &#;So you are saying&#;&#;
Remember the Weight!
An M.E. is a non-examining doctor and his opinion carries little weight.
Don’t ask why the M.E. does not agree with the treating physician. You are just giving the ALJ ammunition.
Obtain a supplemental report from the treating physician, following the hearing, which contradicts the M.E.
Completeness of Record
Make sure the M.E. has seen all the evidence you want him to see. OHA often fails to provide M.E. with latest exhibits.
Consider Utilizing Social Security Ruling
Social Security Ruling lists three circumstances in which equivalence can be found:
A listed impairment for which one or more of the specified medical findings is missing from the evidence but for which other medical findings of equal or greater clinical significance and relating to the same impairment are present in the medical evidence.
An unlisted impairment, in which the set of criteria for the most closely analogous listed impairment is used for comparison with the findings of the unlisted impairment.
A combination of impairments (none of which meet or equal a listed impairment), each manifested by a set of symptoms, signs or laboratory findings, which combined, are determined to be medically equivalent in medical severity to that listed set to which the combined sets can be most closely related. SSR
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Happy Decorating
Summer entertaining is one of my favorite things to do. I think it&#;s because of the causal, laid back feeling you can create when putting a gathering together. I also love the idea of having a designated area that can be transformed into a fun spot to hang out and enjoy a good time. We live on a lake and spend most of our time outdoors, in the other months too. Because pf this, we needed a space that was covered and functional to create a low key hang out. so, we turned this old shed into what we lovingly call, &#;The Beer barn&#;
Outside Before
The first thing we wanted to do is update the outside to give it a more updated and polished look to make it more cohesive in our yard. Paint usually makes the most impact at the lowest cost. I wanted it to have a rich, rustic look and I love the look of woods and dark colors. For the main color we used Iron Ore by Sherwin Williams.
Then I wanted to bring in some warm wood tones so I stained the doors in Early American.
The rest of the changes were just aesthetic things to give it more personality. We added the wood whisky barrels to bring in more of the warm woods and planted real Olive trees in them We also added a big farmhouse light for character and ambiance.
We also added flagstone at the entrance to give it a more finished look and to avoid having a muddy entryway to the door.
We also added a window box with flowers for additional color as well as this pallet wall planter. You can see how we built the planter here How To Create A Planter With An Old Pallet. We also landscaped around the barn earlier in the season and you can read about that hereHow To Create A Garden In A Small Space
Inside Before
The inside required a lot more work but the end result was so worth it. One of the biggest issues was that it also was becoming a catch all of junk. We still need it to store items for the lake, however a lot of it was cluttering up the space and making it hard to enjoy as a functional space to hang out.
First thing we did was to clear out the whole shed. We through out anything we didn&#;t need or that was broken. That way we could determine how much space was truly needed to store items and how we could best store them.
We knew that finishing off the walls would make a big impact in keeping the area looking cleaner and more appealing, however we did not want to spend a lot of money. I love the look of barn wood walls but knew that it would be more time consuming and expensive. So, we found these faux barn wood looking panels at our local Lowes. The whole cost for them was about $
Then, all we did was nail the panels to the studs. There were some tricky cuts involved but we really weren&#;t super picky on the small details for the shed. Once we had the panels up it already made a huge difference in how clean and bright it felt.
I decided that painting the floors would also add a more finished look to the room. However, I really didn&#;t want to put a lot of time or money into it. I had originally bought garage, concrete paint to paint the floors but didn&#;t like the gray option with the barn wood browns. I wanted to keep with the rustic feel. So I decided to try concrete stain.
My first mistake was the color selection. They color I selected I though was a taupe but once I painted it on the floors, it looked too gray. So I went back and bought a darker more brown color and love how it turned out. Since it is a stain, I really wanted it to look like stain not paint on the floors, so when I applied it, I didn&#;t do a heavy even coat. I loved the layered more splotchy look it gave.
Once the walls and floors were complete, I painted the old bar to clean it up and wow what a difference that made. Then it was a matter of adding the decorations and items we needed to make it fun and inviting. The TV was placed on a shelf and we added old vintage waterskis and signs. The wooden vintage cooler even looked better in the newly designed space.
The fun fishing pole light was a project my husband did a few years ago. He used an old minnow bucket for the base, filled it with concrete then stuck in an old fishing pole. He created the lamp using a lamp kit and the inner part of the minnow bucket as the lampshade. It was super easy and adds so much character to the whole room.
I know we will enjoy this space so much more now and it will quickly become a favorite spot in the yard. I love that even if it&#;s starts raining, we can sit inside and enjoy watching the lake or a game and still be &#;outside&#; by the water.
Isn&#;t that such a fun space and can you believe how different it looks ? It always amazes me what a difference paint makes in any space. We really love how this turned out and know we will enjoy this space for many years to come. I hope you enjoyed seeing this makeover and learning how you can turn an old shed into an outdoor bar. Make sure you subscribe so you won&#;t miss any new posts. I love hearing from you so feel free to ask any questions.
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It’s am on Thursday, May 12th, three weeks before the Festival of Miles. I am writing this now, in the middle of the night, because I can’t sleep anyway so I figure this is as good a time as any. And I can’t sleep because I woke up in a panic, courtesy of a nightmare. It’s the same nightmare I’ve had every year around this time for the last several years. The same nightmare I’ll probably have a few more times over these next three weeks. I dream that it’s FOM night but no one showed up. We somehow messed up the marketing and no one knew about the event. Or sometimes it takes a different form and the people are in the stands but I forgot to put the fields together and there are no athletes to compete. This all sounds completely messed up, I know. As confident as I am in a lucid state, my sub-conscious is a complete wreck.
But of course, thankfully, none of these nightmares will come true three weeks from now. In fact, my awake self can tell you with all the confidence in the world, that FOM will once again be spectacular. Everyone who comes out will be absolutely amazed, the athletes will make themselves a host of memories that will last a lifetime and our sport will be displayed in a super cool way, the way it should be. Then afterwards I’ll be exhausted. Our whole team who puts this thing on will be exhausted. But it will have all been worth it.
And speaking of it all being worth it, I have wanted to write this post for a while now. I’ve been searching for a way to say what I’m about to say and at the same time honor FOM for what I think it’s been and what I hope it will continue to be. So here goes: After nine years of this one day being my absolute favorite day of the year I have reached the decision, for a variety of reasons, that the Festival of Miles will be my last year helping to organize the event. But of course, I want to go out with a bang! The fields for this year’s pro races are as deep as we’ve ever had. High school entries are once again rolling in from all over the country and I can feel the excitement starting to build in Saint Louis, even from afar.
I could go into more detail about how awesome June 2nd is going to be but you’ll see, hear and read all about that on social media over these next three weeks. We are marketing machines after all! What I’d rather do here though, for those who are interested, is just tell you some stories and share some of the pictures and videos that made me pretty darn emotional earlier this week when I pored through the history of the event.
Brigette Schutzman addressing the crowd at FOM 2 in
That’s Brigette Shutzman. She’s the reason there is a Festival of Miles. I remember standing around in the kitchen at the tiny house in Shrewsbury that Jen and I rented with Tim Bradley and Jon Bell, Brigette’s coaches at Saint Louis University, and trying to come up with a way to raise money for her. Brigette had been in a horrible car accident on New Year’s Eve / and things didn’t look good. Tragedy is never easy to handle but for some reason it always seems even a little tougher when the person is young, in-shape, vibrant. When they have such a bright future. Because Brigette was a middle-distance runner we thought a track meet would be a more fitting way to celebrate her than a typical 5k road race.
The start of the Saint Louis Track Club Men&#;s Mile
We held the first Festival of Miles in late April of , just four months after the accident. We weren’t sure about how many people would turn out so we held it after a JV track meet at Saint Louis University High School on a Monday night. We wanted a built-in crowd just in case. But we hyped it up as much as we possibly could. The schedule was pretty light- a couple of youth races, a masters men’s race, a local women’s race and finally an elite men’s mile where we were hoping for that magical sub 4. Well, to our surprise the bleachers started filling up and by the time the men’s mile came around we had more than 1, people in the stands. Unfortunately, as it turns out, late April in Saint Louis is not a great time for a high level track meet. The guys did the best job they could and it was a super fun race but Neville Miller (a local guy from Vianney HS and Mizzou) could only muster a for the win. But everyone there had a blast, we raised $8, for Brigette and more importantly we gave her a really fun experience. She even took a few steps in front of the crowd and thanked everyone for coming, this from a girl who had been given only a slim chance of making it through the night four months earlier.
And that would have been the one and only Festival of Miles if it weren’t for another accident that summer. Mike Rathmann, an all-state high jumper at Saint Louis U High, was paralyzed from the chest down just a few weeks after his high school graduation. Jim Linhares, Joe Porter and Tom Flanagan, Mike’s coaches at SLUH, had been a huge part of the planning committee for the meet back in April and I don’t think it took us all very long at all to realize we wanted to put on another edition of the Festival of Miles, but this time we’d do it for Mike.
The one and only Mike Rathmann
With almost a full year to plan the event, things really exploded in Of course, Big River Running Company was also exploding. We had opened our second store and our database was growing by leaps and bounds. That helped immensely with the promotion of the event. We were able to talk some sponsors into coming on board, which gave us a bigger budget so we could put together a better prize purse and a better travel budget for the pro race. I have appreciated all the different sponsors we’ve worked with over the years but I am especially grateful to the Saint Louis Track Club, GO! St. Louis, Saint Louis Injury and Rehab, Drury Hotels and TRXC Timing. They are our longest-running partners and we couldn’t have done all of this without them.
But as much as their money and our promotion helped to set us up for success that year we really have one person to thank more than anyone. And not only for what he did for us in but really for how big the event has become since. It was about a week before the race and the fields were set. The budget was spent. We were bringing in a handful of really solid milers from around the Midwest and felt pretty good about our chances of seeing a sub 4. Then I get an email from Ryan Ponsonby, one of the coaches of Olympian Leo Manzano. Leo was coming off a sub-par race and was looking for some redemption. They wanted to know if we could get Leo into our race. Let’s see…can we add an Olympian to our little track meet in Saint Louis at a local high school? Yeah…I think we can make that happen! It’s funny in retrospect but I remember talking to Matt Helbig, my friend and Big River Running Company business partner, about the $ dollars it was going to cost to bring him in. Turned out to be the best $ we ever spent.
Click to watch Leo&#;s sub 4.
As you can see Leo did not disappoint. He unleashed his patented crazy fast last meters in front of a crowd that was going absolutely ballistic. The result was a mile, the fastest ever run in the State of Missouri. Derek Scott and Tommy Schmitz also broke four that night. After that, there was no turning back. FOM was here to stay.
Since , we have continued on and always with one goal in mind—to make the event even bigger and better the following year. And thus far we’ve nailed it every time. The youth races have grown in numbers with every single edition of the meet. The crowd has gotten bigger and bigger. People are now arriving an hour early just so they can get a spot in the parking lot and a good seat. We had 2, fans last year and I wouldn’t be at all surprised if we got to 3, on June 2nd. I’m biased but I believe we’ve paved the way for a lot of the similar grassroots events you see going on around the country. Our event is short: two-and-a-half hours start to finish. We jam the music during the races. We have super cool athlete intros before our pro races. We have an excited meet announcer (sometimes me!). We do interviews in front of the crowd with our winners. And the races themselves are crazy fast. I’ll just give you a few quick stats before I get to some of my favorite pictures and moments from these last nine years.
FOM junior high invitational boys mile record
FOM junior high invitational girls mile record
Big River Running Company Boys Mile Record (HS Only Race)
Big River Running Company HS Girls Mile Record
FOM Women&#;s Meter Record
Saint Louis Track Club Men&#;s Mile Record
Hannah Long&#;s meter time (#2 US HS time that year)
Grant Fisher&#;s time to become the 7th US HS athlete under 4 minutes
$50,+- Money raised for local athletes in need from FOM since
All told, the four-minute-mile has been broken nineteen times at FOM between and Not too shabby for a high school track! But more important than any fast time or any one moment, what struck me the most as I took my little trip down nostalgia lane earlier this week was just how many people have been a part of this event. And I mean in every way. As l looked through the pics I saw so many of our best Big River customers and supporters cheering in the stands. I saw so many kids in the youth race pics from the early years that later went on to run in the high school all-star races. I saw distance running superstars like Emily Sisson and Colleen Quigley, two women who could very well be Olympians this summer, running at FOM as high school athletes. I saw professional athletes (and of course one high schooler) who broke four minutes for the first time at our meet. As an athlete you don’t forget that…ever.
And for me personally I just saw all of my friends. Essentially, my wife and I and our best friends put on this event and so many other great friends are in the stands or volunteering or even running around the track. I don’t know what else to say except that I love this event. I love the people who have given so much to it over the years. I love that we’ve shown that track can be a spectator sport. I love that my brother’s drinking buddies who’ve never run a step in their life come to FOM every single year because they have such a good time. I love that we’ve been able to help local families in need in a really tangible way. And I guess I just love the fact that after all these years it’s still so special to me that it wakes me up in the middle of the night three weeks beforehand in a cold sweat. If I can continue to find things that I’m this passionate about as I move forward I think I’ll live a pretty darn good life.
So thanks for reading. I hope to see many of you on June 2nd and I hope you enjoy the pictures (and captions) below:
Hometown favorite Neville Miller won the inaugural Saint Louis Track Club Men&#;s Mile. Eight years later and Neville is now our unofficial FOM weatherman (follow him on KMBC in Kansas City)
Oh my gosh I love this pic. It&#;s right before the start of the Men&#;s Mile in You can see how packed the stands are and in the foreground is the first family of FOM- The Longs! Zack, Hannah, Nate, Cindy and Dave&#;thanks for being such huge FOM supporters (and friends)!!
What a great pic. Love Leo throwing up the &#;Hook-Em Horns&#; but my favorite thing is the crowd in the background, especially longtime friend Tom Flanagan.
This is my brother Franklin! He&#;s now a freshman in college but this was him way back in grade school. I love that my family was able to be a part of FOM.
Maybe my favorite all-time FOM pic. Carter Snow (who is taking over FOM director duties) high-fiving Hannah Long after her US #1 meter. Pure joy!
What a powerful shot. Teammates embracing after a hard fought battle. So cool.
No one has done more to professionalize our meet than Rich Schilling and his TRXC Timing Crew. THANK YOU GUYS!
Love this black and white of JMac- our 3-time FOM Champ and meet record holder. I cannot speak highly enough about this guy.
Native Saint Louisan Shannon Leinert has run every FOM since we added it in She&#;s come so close to winning but never quite done it. I&#;d be lying if I said I wasn&#;t rooting for her on June 2nd.
For years I pulled double duty at FOM, coaching the Blazers and putting on the meet. Bella and Sophia Racette and Hadley Karandjeff were three of my favorites!!
And here are three more Blazer goofballs and I mean that in a good way- Aaron Hoyt, Dan Powell and Ben Reagan
We are very proud of the media coverage FOM receives every year in STL. Here is local broadcast legend Frank Cusumano interviewing FOM Mile champ Jack Bolas.
How cool is this? Twins Daniel and David Everett being interviewed by the great Toni Reavis after running and !!
Rich Anderson has supported FOM in so many ways. I had to include this pic. Lookin&#; good Rich!
One of the best FOM pics ever taken. Our boys race got a little tactical and four runners finished within a second of one another led by Spencer Haik.
If we had an FOM Hall of Fame (which we should!) this young lady would be in it. Stephanie Jenks of Iowa has won 3 FOM HS Miles in a row and will go for the 4-peat on June 2nd.
I think the timing board says it all!
Thanks to Katie Sutton and Ty Kanoya for all the pics I used in this post. I wanted to include so many more! If you want to take an even deeper trip down memory lane check out all of Ty&#;s pics from here:
Thanks so much everyone. You guys are the best and I&#;m excited to see so many of you on June 2nd!!