Element 3: Strong Advocacy Before and During the Hearing: Claimant and Expert Testimony
A third element of effective representation is advocacy, which involves asserting a strong, solid theory of disability. Effective advocacy involves many aspects, including the attorney’s ability to elicit favorable testimony from our client and his/her witnesses, to interact with the Administrative Law Judge (ALJ) during the hearing, and the ability to effectively cross-examine Medical and Vocational Experts. Of course, effective advocacy starts with a solid knowledge of our client’s medical condition, as well as our theory of the case.
The attorney’s interaction with the ALJ is crucial. ALJs have vastly different personalities and styles, and the attorney must have the foresight and flexibility to adjust accordingly. Flexibility in advocacy at the hearing may be as important as preparation before the hearing.
Our attorneys appear in front of the same judges on a regular basis. We generally know the specific legal standard used by the judge in authorizing an award of disability benefits. It is our job to effectively provide the necessary evidence and analysis to assist the judge in making a favorable disability determination.
After sending the judge a pre-hearing memorandum, setting forth our theory of disability (see Element 2: Preparation for the Hearing), effective hearing advocacy first means eliciting favorable testimony from our client, as well as his/her witnesses. Although ALJs may focus primarily on the medical evidence in making their decisions, strong witness testimony is not only important, but it can often fill in any gaps and be the “deciding factor” in a case. An effective advocate knows how to question both a client and his/her witnesses.
Critical advocacy includes attorney cross-examination of Medical and Vocational Experts (MEs and VEs). Medical Experts generally are doctors who have read the medical evidence in advance. They provide their opinion to the ALJ as to 1) The severity of our client’s medical condition, and 2) what limitations (e.g. standing and/or walking, sitting, reaching) are reasonably consistent with our client’s medical condition.
Vocational Experts provide vocational testimony to the ALJ about our client’s work history, including the type of work, duties, and skill requirements of Past Relevant Work. A VE will also provide opinion evidence as to alternative jobs which he/she believes that our client can perform in the local, regional, and national economy .
Effective advocacy requires attorney cross-examination of hearing experts to help clarify issues and establish medical and vocational facts. Ultimately, effective cross-examination is intended to influence the ALJ to make a favorable disability finding for our clients.
Eric J. Patrick, Esq. & Richard A. Gutstadt, Esq.