Sunday, March 26, 2023

The Problem with Consultative Examiners

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?

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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:

“§ 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.