Medical Expert Requirement at a Social Security Hearing

Most Administrative Law Judges believe that if they are going to find the claimant equals a listing, they must have an Medical Expert's testimony to support their determination.  They also believe that if a Medical Expert testifies that the claimant does not equal a listing, they are prohibited from finding that that claimant does equal the listing.  This is simply not true.  Why do they think this?

In 1996 SSA published SSR 96-6p which requires a Medical Expert if the Judge believes the record suggest "a judgment of equivalence may be reasonable" or when new evidence changes the State agency’s determination.   And prior to 2006 the regulation covering medical equivalence specified that medical equivalence is based on medical findings and medical evidence only.  The regulation also stated:

"We will also consider the medical opinion given by one or more medical or psychological consultants designated by the Commissioner in deciding medical equivalence."[1]

But as noted earlier, this regulation changed in 2006.  The new regulation explains that medical equivalence is based on all evidence in the record rather than only medical findings.  Also, the new regulation no longer contains mandatory language.  Rather than stating that they will consider a medical opinion, the new regulation states that opinions are also considered.  And the type of opinion is no longer a medical opinion.  SSA explains that, "the term 'medical opinion' has a specific meaning that does not include opinions about medical equivalence."[2]

The new regulation now specifically explains that while State agency medical consultants decide medical equivalence at that level, at the ALJ level, the responsibility is with the Administrative Law Judge.  The implication is that the responsibility is not on the Medical Expert.

Since the mandatory language is now out of the regulation, arguably an ME is no longer required.  But even if one believes the requirement exists, it still does not follow that the opinion of the ME is controlling.  Even 96-6p explains that it must be given appropriate weight.

Last, one important reason why Medical Experts cannot decide the ultimate determination of medical equivalence is that they don’t know what it means.  Medical Experts are provided a copy of a publication called "Disability Evaluation Under Social Security."  They often refer to this publication as "The Blue Book."  This book provides the text of all the listings and some introductory language.  It does not track any regulation at all.  If you ask a Medical Expert what medical equivalence means, they will not be able to recite the regulatory definition.

[1] Old 20 CFR 404.1526(b)

[2] 70 Fed. Reg. 35190, June 17, 2005 and 71 Fed Reg. 10425, March 1, 2006 .  Also new 404.1527 regarding opinion evidence has discretionary language with regards to medical equivalence.