The Right to Cross Examination in Social Security Disability Hearings

November 03,2009
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As experienced Social Security Disability lawyers, we often tell clients that a hearing before a Social Security Administration (SSA) Administrative Law Judge (ALJ) can be the best opportunity to prove a claim for Disability benefits. That’s not only because the claimant gets to present his or her case in person before the judge, but also because he or she has the opportunity to cross-examine anyone providing information relevant to the claim. As the U.S. District Court for the District of New Jersey recently explained in Roberts v. Commissioner of Social Security, failure to provide a claimant with the opportunity to cross-examine is reversible error.

Mr. Roberts worked as a police officer in Newark before retiring to start his own trucking business, a venture that was unsuccessful. He later worked in various truck driving jobs, but said he eventually had to stop working due to leg and back pain as well as numbness in his feet and fingers. He was diagnosed with type II diabetes in 1998.

Roberts filed a claim for Social Security Disability Insurance (SSDI) benefits, claiming that he was no longer able to work because of his impairments. The SSA denied the claim initially and again on reconsideration. Roberts then appeared at a hearing before an SSA ALJ, who later determined that he was not disabled for benefits purposes because he retained the residual functional capacity (RFC) to perform certain light work, and could therefore perform specific jobs as a sorter, inspector/packer, assembler, tabber and decal applier.

The District Court reversed the decision on appeal, however, finding that the ALJ improperly considered information filed by a third party Vocational Expert (VE) after the hearing, without allowing Roberts the opportunity to challenge it. A VE’s general role is to testify as to whether a person with the same impairments, background, age and experience as a claimant would be able to perform jobs available in the national economy. Although the ALJ’s conclusion that Roberts could still work was based in part on other hearing testimony, it was also based on written answers to questions posed to the VE after the hearing.

“[I]n the context of social security cases, “the Secretary may not rely on post-hearing reports without giving the claimant an opportunity to cross-examine the authors of such reports, when such cross-examination may be required for a full and true disclosure of the facts,” the court explained, relying on the 1989 decision by the U.S. Court of Appeals for the Third Circuit in Wallace v. Bowen. Here, because there was no VE present at the hearing, Roberts (or likely his lawyers) did not have the opportunity to conduct a cross examination.
As a result, the court remanded the case back to the ALJ for further proceedings.

In addition to representing a client at an ALJ hearing and cross examining witnesses, an experienced Social Security disability lawyer can provide vital assistance to a client seeking Disability benefits by gathering the necessary medical documentation and following up with the SSA to ensure that it has everything it needs to decide the claim. If you or a loved one is considering filing a claim for SSDI benefits, contact the New Jersey Social Security Disability lawyers at Hermann Law Group, PLLC. We are dedicated to providing high quality, personalized legal services. Please call or contact us to set up an appointment.