The most common judicial disposition is not with the activist judge, but with the anal judge who is enamored with procedure, captivated by convention, and enchanted by complexity. Here’s an example of a paraphrased colloquy I have experienced. I will paraphrase what was said and use an example that is a little different than what happened, in deference to my client and the judge, but this is largely what was said:
Me: Your Honor, an additional impairment the claimant has is that he’s missing his right arm from the elbow, down. This would meet one of the conditions for a finding for a listing under 12.05.
Judge: So, where does it state that in the medical record?
Me: Your Honor, the claimant has been homeless for many years and unable to obtain a majority of his medical records because his physician died and the records were destroyed or lost and he cannot afford to go to a doctor at this time. Besides, he can just show you his stump.
Judge: That’s all very fine, but you need to cite me to a medical record that establishes this, as the regulations require.
Me: Richard Jones Ph.D. does indicate, at 5F page 6 in the Medical Record, that as part of his evaluation, he noted that Claimant is missing his right arm.
Judge: Yes, but he is a psychologist and is not qualified to opine on whether or not the claimant’s arm is impaired. All impairments must be established objectively.
Me: Well, your Honor, I think Mr. Doe is capable of showing you this impairment. It’s pretty obvious, and we did – as allowed by the rules, and as is required under these circumstances – request he be sent for a orthopedic evaluation–
Judge: Yes, I know. I may decide to do that, but I am not qualified to make medical conclusions, so let’s move on.
Me: Ok, but your Honor, you can consider some medical facts that are within the common understanding of us all, and he can simply roll up–
Judge: I said, move on. Let’s go to the psychological expert.
Loren M. Lambert © July 18, 2013
Me: Your Honor, an additional impairment the claimant has is that he’s missing his right arm from the elbow, down. This would meet one of the conditions for a finding for a listing under 12.05.
Judge: So, where does it state that in the medical record?
Me: Your Honor, the claimant has been homeless for many years and unable to obtain a majority of his medical records because his physician died and the records were destroyed or lost and he cannot afford to go to a doctor at this time. Besides, he can just show you his stump.
Judge: That’s all very fine, but you need to cite me to a medical record that establishes this, as the regulations require.
Me: Richard Jones Ph.D. does indicate, at 5F page 6 in the Medical Record, that as part of his evaluation, he noted that Claimant is missing his right arm.
Judge: Yes, but he is a psychologist and is not qualified to opine on whether or not the claimant’s arm is impaired. All impairments must be established objectively.
Me: Well, your Honor, I think Mr. Doe is capable of showing you this impairment. It’s pretty obvious, and we did – as allowed by the rules, and as is required under these circumstances – request he be sent for a orthopedic evaluation–
Judge: Yes, I know. I may decide to do that, but I am not qualified to make medical conclusions, so let’s move on.
Me: Ok, but your Honor, you can consider some medical facts that are within the common understanding of us all, and he can simply roll up–
Judge: I said, move on. Let’s go to the psychological expert.
Loren M. Lambert © July 18, 2013
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