Avoiding Consultative Examinations

Tuesday, October 13th, 2009

When applying for Social Security Disability (“SSD”) benefits, the Social Security Administration (the “SSA”) virtually always sends a notice stating that the claimant has to be examined by one of its doctors for a Consultative Examination (“CE”). Almost without exception, the CE concludes that the claimant is capable of working, and therefore, the SSA denies the SSD application.

What most applicants don’t realize is that the rules and regulations severely restrict the circumstances where the SSA can require a CE. For example, POMS DI 57540.020 requires the SSA to identify the “essential evidence missing from the file,” and then to request it from the treating source. Similarly, Social Security regulation 20 C.F.R. § 404.1512(f), states that a CE is appropriate only if information the SSA “need(s) is not readily available from the records of your medical treatment source, or we are unable to seek clarification from your medical source;” and 20 C.F.R. § 404.1519a(a)(1) requires the SSA to seek the information from the claimant’s treating source before resorting to a CE. There are many other rules, regulations, and federal court decisions that provide the same.

I always insist that the SSA comply with the rules and regulations regarding CEs. I offer to provide any medical evidence the SSA can specify, and to facilitate a CE by the claimant’s treating doctor. The absence of the CE by the SSA prevents negative evidence from making its way into the file, which delays the application’s approval. I represent a former school superintendent whose SSD application was approved today in only four months. Had I allowed the CE to proceed, then the SSA would have required a hearing to weigh the conflicting opinions.

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