Friday, October 24, 2014

Video Taping Consultative Examination

For virtually every Social Security Disability (“SSD”) claim, the State Agency sends letters to claimants telling them that they have to attend a consultative examination (“CE”). In New York, the State Agency contracted with Industrial Medicine Associates (“IMA”) to perform the CEs

There is no Social Security ruling, regulation, statute, guideline, POMS, HALLEX, or case law that precludes an SSD claimant from video recording his or her CE. To the contrary, video taping an IMA CE is consistent with the SSA tape recording experts and witnesses at hearings. Notably, section 137 of the Workers’ Compensation law specifies that a claimant has the “right to video tape or otherwise record” an examination. 

One of my clients appeared at IMA for his CE. However, the IMA office manager refused to allow the CE to proceed because the claimant wanted to video tape it. The IMA office manager stated that they had the “discretion” to refuse to be video taped. When the claimant asserted his right to videotape the CE, the office manager told him to leave. 

Because the claimant video taped the IMA office manager saying that they had the “discretion” to refuse to be video taped, and telling him to leave, it is undeniable that IMA, not my client, refused to proceed with the CE. That videotape will prove that any assertion by the State agency that the claimant “failed to cooperate” is a lie, as he was ready, willing, and able to examined.

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