What questions to ask a medical doctor when being examined for the purpose of obtaining SSDI benefits.

1. HOW TO STRUCTURE YOUR
QUESTIONS SO THE MEDICAL
EXPERT DOESN’T DERAIL YOUR
CASE
NOSSCR MAY 2010 -NEIL H. GOOD
1

2. 1. What are the goals of the cross
examination of the ME?
2. How do you prepare?
3. How do you execute an effective
cross examination?
NOSSCR MAY 2010 -NEIL H. GOOD 2

3. Generally
1. Reinforce favorable information
2. Discredit or impeach unfavorable information
a. Information can be facts or opinions
b. Opinions should be based on facts
c. Experts can disagree on opinions, not facts
d. SS case-don’t know ME opinion until the
hearing
NOSSCR MAY 2010 -NEIL H. GOOD 3

4. 1. Construct questions so the ME appears not
credible
2. Construct questions so the ME admits the
diagnoses is consistent with the objective test
and the symptoms(subjective and objective)
3. Construct questions so the ME admits the
claimant is credible (SSR 96-7p)
4. Construct questions so the ME give controlling
or greatest weight to the treating physician
(SSR 96-2p)
NOSSCR MAY 2010 -NEIL H. GOOD 4

5. 5. Construct questions so the ME admits the
claimant cannot work full time (SSR 96-8p)
6. Construct questions so the ME admits that the
combination of diagnoses explains why the
symptoms are greater than suggested by the
objective medical evidence
7. Construct questions so the ME admits that the
psychiatric condition can explain why the
symptoms are worse than the medical
objective evidence suggests
NOSSCR MAY 2010 -NEIL H. GOOD 5

6. 1. Construct the questions so the ME appears not
credible
a. Show the ME is biased
b. Show the ME lacks knowledge of the facts
c. Show the ME lacks knowledge of the subject matter
d. Show the ME’s opinion is different than other
medical personnel with better, more reliable
information
NOSSCR MAY 2010 -NEIL H. GOOD 6

7. 2. Construct the questions so the ME admits the
diagnosis is consistent with the symptoms and
the objective tests
a. First facts
 Activities of daily living
 3rd party function report
 Disability report
 The medical records
 Testimony
b. Second opinions
 Construct the questions so the ME agrees or disagrees
with favorable opinions of other medical personnel
NOSSCR MAY 2010 -NEIL H. GOOD 7

8. 3. Construct the questions so the ME admits the
claimant is credible (SSR 96-7p)
a. Construct the questions so the ME admits other
doctors found the claimant credible
 Referring to other medical personnel
 Workers’ Compensation doctor
 Other Social Security doctors
 Free clinic or hospital – Cook County Hospital
 Physical therapists
 Treating doctor
b. Construct the questions so the ME admits the
diagnosis is a competent cause of pain
NOSSCR MAY 2010 -NEIL H. GOOD 8

9. c. Construct the questions so the ME admits the
symptoms are consistent with the objective
tests
d. Construct the questions so the ME admits the
symptoms existed before the objective tests
e. Construct the questions so the ME admits the
symptoms confirm the diagnosis
f. Construct the questions so the ME admits that
the diagnosis could cause level of limitations,
persistence and pain
NOSSCR MAY 2010 -NEIL H. GOOD 9

10. g. Make the ME admit that this medications are
prescribed for this diagnosed condition.
h. Make the ME admit they don’t prescribe the
medication unless the condition is severe, or
else it would be over the counter.
i. Make them admit the side effects are caused
by this medication.
j. This all leads one to believe the claimant is
credible .
NOSSCR MAY 2010 -NEIL H. GOOD 10

11. 4. Construct the questions so the ME admits
controlling/greatest weight should be given to
the treating physician (SSR 96-2p and CFR
404.1527)
a. Construct the questions so the ME admits
the treating doctor’s opinions
b. Construct the questions so the ME admits
the opinion could be true
c. Construct the questions so the ME admits
there is nothing (substantially) inconsistent
in the records
NOSSCR MAY 2010 -NEIL H. GOOD 11

12. SS DR and ME Treating Doctor
1. Examining
Relationship #
2. Treating relationship
i)length of treatment
ii)number of exams
iii)nature extent of
tests ordered
Knowledge of
impairment
Poms di 25610.89
Consistency with record
specializations
Other factors/ who paid
NOSSCR MAY 2010 -NEIL H. GOOD 12

13. 5. Construct the questions so the ME admits the
Claimant cannot work 8-hour days, 5 days a
week (SSR 96-8p)
a. Construct the questions so the ME admits the
condition
b. Construct the questions so the ME admits the
condition would cause the claimant to be
affected on the job (missing work, late, off
task, breaks, leaving early)
c. Construct the questions so the ME admits
claimant not able to work 8 X 5
NOSSCR MAY 2010 -NEIL H. GOOD 13

14. 6. Construct the questions so the ME admits that a
combination of diagnoses could explain why
the symptoms are greater than the objective
evidence would suggest
7. Construct the questions so the
ME/psychiatrist/psychologist admits that the
psychiatric condition can explain or cause
symptoms to be worse than the medical
evidence suggests
NOSSCR MAY 2010 -NEIL H. GOOD 14

15. 1. General comments
2. Compare rules of Evidence to
SS hearing
3. Cross examination techniques
4. Plan the Cross Examination
NOSSCR MAY 2010 -NEIL H. GOOD 15

16. 1. Realize this is about control
2. Be low key
3. Be professional
4. Be efficient in your questioning
5. Ask one fact in one question, except
hypothetical questions
6. Know that this is about setting up the
ME
7. Don’t go for the quick kill
NOSSCR MAY 2010 -NEIL H. GOOD 16

17. 8. Use fact-based questions
9. Pin the ME to the medical records
10. 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. The notes for this rule
mandate the disclosure in advance, pursuant to
FRCP 26(b)(4). (Illinois213f)
NOSSCR MAY 2010 -NEIL H. GOOD 17

18. 1. No foundations
2. No formal objections
a. Beyond the scope of evidence
b. Assumes facts not in evidence
c. Beyond the expert’s field of expertise
d. There are no form objections
3. No requirement evidence even exists
NOSSCR MAY 2010 -NEIL H. GOOD 18

19. 1. Repeat the question
2. Ask the ME if he did not understand
3. Ask why the Me why he won’t answer the
question
4. Ask the question in the opposite
5. Narrow the question
6. Ask for judicial intervention
7. If the judge interrupts, it’s answered; be ready
NOSSCR MAY 2010 -NEIL H. GOOD 19

20. Formulating questions
Yes
No
Question Refusal to answer
Unrelated run on
ALJ intervention
NOSSCR MAY 2010 -NEIL H. GOOD 20

21. 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?
A. I can’t say.
Q. So then you disagree with Social Security’s
position in CFR404.1529 where it says that,
correct?
NOSSCR MAY 2010 -NEIL H. GOOD 21

22. 1. Read the file- note dates and objective test
2. Figure out your goals
3. Plan the cross examination
a. Set up questions first
b. Reinforce favorable information
c. Elicit opinions on SSR’s
d. Impeach unfavorable information
NOSSCR MAY 2010 -NEIL H. GOOD 22

23. 1. The minimizor – he acknowledges the
diagnosis minimizes the limitations
2. The quick reader - he really does not read the
file
3. The adopter - he adopts the DDS RFC
4. The know-it-all - he knows it all and makes
things up that are not in the records
5. The objective test reader – he only reads the
objective tests
NOSSCR MAY 2010 -NEIL H. GOOD 23

24. 6. The Repeater - he repeats the same thing at
every hearing
7. The honest doctor – he still gets it wrong
8. The helpful doctor – he tries to help the
claimant
9. The positive doctor – he thinks he can only give
an opinion if he’s sure beyond all doubt
NOSSCR MAY 2010 -NEIL H. GOOD 24

25. 1. Be professional.
2. Be efficient.
3. Be in control.
4. Don’t get hostile.
5. Don’t argue; stay in control.
6. Remember: You are trying to get them to do
these things.
NOSSCR MAY 2010 -NEIL H. GOOD 25

26. Goals: Ms. Claimant
1. Construct the questions so the ME admits the
claimant’s condition is permanent
2. Go through the SSR’s that apply
3. Construct the questions so the ME admits there is
nothing to contradict the WC doctor’s opinion
that the claimant couldn’t work in the last 3 years
4. Compare the 2 exams and compel the ME to
admit more limitation means less ability to work
5. Construct the questions so the ME admits that
neuropathy causes limitation that affect ability to
work.
NOSSCR MAY 2010 -NEIL H. GOOD 26