Sunday, November 4, 2007

Consultative Examinations

Social Security Disability claims are usually denied based on the reports of consultative examinations (“CEs”). I advise my clients not to attend CEs because the regulations provide that the preferred source for performing a CE is the treating physician, and not a doctor selected by the state agency processing the initial application. There are three possible outcomes where a claimant does not attend a CE by a state agency consultant.

The first possibility is that the medical evidence supplied by the claimant and obtained by the state agency is so strong that the application gets approved despite refusal to attend the CE.

The second possibility is that the application will be denied on the grounds of non-cooperation. However, if the state agency is advised how the regulations would be violated if the CE is not performed by the treating physician, and the claimant offers to supply whatever specific medical information the state agency contends is needed to adjudicate the claim, then there is no valid basis for asserting non-cooperation. If then application is denied, the non-cooperation argument does not stand up on appeal.

The third possibility is that the state agency will agree to have the treating physician perform the CE. This is rarely the case, but when it happens, it virtually guarantees that the application will be approved on appeal if the state agency denies the application. I just had a lightning fast approval of such a case.

I represented a client whose application was denied despite the fact that I persuaded the state agency to have the treating orthopedist perform the CE, who concluded that the claimant was totally disabled and could not do any type of work. The day the claim file was transferred to the hearing office I submitted a request asking that the claimant’s application be approved based upon the evidence currently in the file. I argued that all the medical evidence, including the CE paid for by the state agency, showed the claimant was entitled to disability benefits. I received a telephone call in less than a week advising me that the application would be approved, and a written decision was received a couple of weeks later.

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