Consultative examinations are evaluations that Social Security pays for with one of their "approved" medical vendors. Consultative
examinations are only supposed to be scheduled by SSA/DDS IF evidence is “NOT
available” OR the evidence is “insufficient” to determine whether a claimant
has a disabling impairment. The reality is the majority of claimants are being
sent to the CEs regardless of whether the file has sufficient evidence in it.
SSA/DDS are essentially purchasing negative opinions in the majority of cases,
as these evaluations are neither thorough or objective. Good ALJs know that CE
reports are rarely legitimate and are willing to overlook a negative CE report.
Biased ALJs, who view themselves as protectors of the SSA fund, rather than
objective decision makers, know they can use negative CE reports to deny a
claim and the Appeals Council (“AC”) will uphold the unfavorable determination.
Why are
CEs becoming an increasing problem for us?
Prior to
March of 2017, our clients had more protection from CEs, as there was the
Treating Physician (Controlling Weight) Rule: 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2) in place. The Treating Physician rule essentially said that an
opinion from a treating provider was given controlling weight over a report from
a CE, as long as the treating opinion is
well supported by the objective and clinical evidence and is not contradicted
by any other substantial medical evidence. The reasoning made sense since a
treating physician had a longitudinal relationship with the claimant.
Initially,
after the treating physician rule was eliminated, there wasn’t an immediate
fallout. Over the last 12 months, however, CEs are being increasingly used by
SSA to deny claimants. Even at the
hearing level, ALJs who wish to deny a claimant are starting to utilize CEs
AFTER the hearing in order to “buy” a basis to deny the claim. Even if you
object to the CE appointment, SSA simply will ignore or overrule the objection.
Yes, these objections help protect a claimant for Federal court, but disabled
claimants do not have the luxury to wait additional appeal stages for benefits.
Below please find some specific problems
that are occurring with CEs:
1. When should CEs be used:
CEs should
only be used if:
“If your medical sources cannot or will not give us
sufficient medical evidence about your impairment for us to determine whether
you are disabled or blind, we may ask you to have one or more physical or
mental examinations or tests. We will pay for these examinations. However, we
will not pay for any medical examination arranged by you or your representative
without our advance approval. If we arrange for the examination or test, we
will give you reasonable notice of the date, time, and place the examination or
test will be given, and the name of the person or facility who will do it. We
will also give the examiner any necessary background information about your
condition. 20 C.F.R. §§ 404.1517, 416.917.”
The
reality: SSA/DDS is treating every claim as if there is not “sufficient”
evidence in the file. I am calling DDS on the cases that are stacked with
evidence and demanding to know why a CE being scheduled. I am being told that
the DDS reviewing doctor doesn’t feel there is sufficient evidence in the file
and that a CE is being ordered to develop the case. IF, the claimant doesn’t
attend, SSA is denying for “noncompliance.”
2. Consultative examiners are not being provided
ANY of the claimants’ evidence in most cases:
CEs are
guided by a resource called a “Green Book.”
CEs used to be given about 50 pages of medical records, selected by DDS
analyst, so the CE would have objective findings available before examining a
claimant.
The
reality: SSA/DDS is no longer sending any evidence to the CE for context.
Instead, the CE report is based on a minimal examination that would not be able
to determine disability in most instances. The physical examinations are akin
to what children used to undergo to have clearance to attend physical education
class…..reflex check , toe-touch check, old-fashioned grip strength test…etc. The mental evaluations use a mini mental
status examination (“MMSE”) that really only tests if a claimant is delusional.
Questions vary, but common questions are:
-
Who is the President?
-
Name Your State Capital.
-
Spell “world” backwards.
-
What is the similarity b/t an apple and an orange?
-
What would you do if you smelled a fire in a movie theater?
-
What would you do if you found an envelope with a stamp on it?
-
3. SSA dictates that the preferred consultative
examiner for an evaluation is the claimant’s own treating doctor:
This
language is taken DIRECTLY from SSA’s Greenbook
From SSA’s Greenbook: Consultative Examinations: A Guide for
Health Professionals
Part III - Consultative
Examination Guidelines
“If the evidence provided by the claimant's own medical sources is inadequate
to determine if he or she is disabled, additional medical information may be
sought by recontacting the treating source for additional information or
clarification, or by arranging for a CE.
The treating source is the preferred source
of purchased examinations when the treating source is qualified, equipped and
willing to perform the additional examination or tests for the fee schedule
payment and generally furnishes complete and timely reports. Even if only a
supplemental test is required, the treating source is ordinarily the preferred
source for this service. SSA's rules provide for using an independent source
(other than the treating source) for a CE or diagnostic study if:
- The treating source prefers not to perform the
examination;
- There are conflicts or inconsistencies in the file
that cannot be resolved by going back to the treating source;
- The claimant prefers another source and has a good
reason for doing so; or
- Prior experience indicates that the treating source
may not be a
productive source.”
The
reality: SSA/DDS has never reached out to a claimant’s treating doctor for a CE
report that I have ever seen. They always use one of their vendors.
4. CEs evaluations are not complying with
the time mandates:
SSA actually
issues the length of time each evaluation should last:
Ҥ 404.1519n;
416.919n. Informing the medical source of examination scheduling, report content,
and signature requirements.
The medical sources who perform consultative
examinations will have a good understanding of our disability programs and
their evidentiary requirements. They will be made fully aware of their
responsibilities and obligations regarding confidentiality as described in § 401.105(e).
We will fully inform medical sources who perform consultative examinations at
the time we first contact them, and at subsequent appropriate intervals, of the
following obligations:
(a) Scheduling. In scheduling full consultative
examinations, sufficient time should be allowed to permit the medical source to
take a case history and perform the examination, including any needed tests.
The following minimum scheduling intervals ( i.e. , time set
aside for the individual, not the actual duration of the consultative
examination) should be used.
(1) Comprehensive general medical examination—at
least 30 minutes;
(2) Comprehensive musculoskeletal or neurological
examination—at least 20 minutes;
(3) Comprehensive psychiatric examination—at least 40
minutes;
(4) Psychological examination—at least 60 minutes
(Additional time may be required depending on types of psychological tests
administered); and
(5) All others—at least 30 minutes, or in accordance
with accepted medical practices.”
The
reality: I am having my clients time the evaluations. The majority last under
15 minutes.
5. CEs are being scheduled even when
the claimant meets a Bluebook listing:
SSA uses a 5-step
sequential process to determine whether a claimant is disabled. Step 3 is, “does
the claimant meet a Bluebook listing?” If the answer is “yes” the claimant should
be awarded benefits. SSA is not supposed to complete a Step 4 or Step 5
assessment IF the Claimant Wins at Step 3. Step 4 is, “can the claimant perform
his past work?” Step 5 is, “can the claimant perform other work in the national
economy?”
The reality: Even when there is evidence in the
file that concretely shows the claimant is meeting a Bluebook listing, SSA is
sending the claimant to a CE to get a residual functional capacity assessment
to determine the claimant’s work abilities. The CE always comes back saying the
client can do some level of work. SSA is ignoring the fact that the claimant
meets the Bluebook Listing and denying the case, citing that the CE indicated
the claimant could work.
What Can Be Done To Reduce The Problem
With CEs
1. Attorneys and reps
need to object more to erroneously scheduled CEs in writing. It is
time-consuming, so maybe NOSSCR could provide templates to the community to use
so more firms are willing to object to CEs?
2. Attorneys and reps
should have their clients “time” these appointments to see if it complies with
SSA’s standards.
3. Attorney and reps
should ask the ALJ to haul these CEs into the hearing for cross-examination if
they know they are assigned to an ALJ who is looking to deny. If we create more
work for SSA, they will be less inclined to overuse CEs.
4. We need to let
Congress know the abuses that our clients are suffering at the hands of CEs.
Politicians have NO idea what happens when someone files for SSDI/SSI benefits.
We need to encourage our clients to file complaints with their local
Congressional Reps when they have a bogus CE evaluation, so our politicians get
a sense of how corrupt the process have become. These CEs get paid anywhere
from $175 to $275 to evaluate a complaint. SSA is complaining that they do not
have a budget to “workup” a SSDI/SSI claim properly, BUT they are misusing
government funds by scheduling CE appointments when it is inappropriate and
unlawful to do so.
Got a
question that you need answered? Please check out our website at www.westcoastdisability.com. We
try to provide you with valuable information on our website that may help you
navigate the Social Security Disability process. Also, feel free to shoot me an
email at megan@westcoastdisability.com or call us at
(800) 459-3017 x 101.
