Consultative Exam (“CE”) Ruled Improper

The Appeals Council just issued an order ruling that an Administrative Law Judge (“ALJ”) cannot ask a claimant to attend a CE by a non-treating doctor on the grounds that the treating doctor’s opinion or report contains conflicts, gaps or inconsistencies, without asking the treating doctor to explain the perceived conflict, gap or inconsistency. The Appeals Council also ruled that an ALJ cannot deny an application solely because a claimant refused to attend a CE, and criticized the ALJ for rejecting the CE by the treating doctor.

The Appeals Council order confirmed that a treating source is the preferred source for performing a CE, and that an ALJ cannot ask an “independent” doctor to perform a CE unless the treating source is given the chance to explain any alleged conflict, gap or inconsistency. The order shows that a claimant has good cause, and cannot be penalized, for refusing to attend a CE that fails to comply with the Social Security rules and regulations.