1) What To Do Before The Exam Actually Occurs To Make The Best Record.
First, there is always the right to request a change in the examining physician identified as the C/E physician for Social Security. You should check the C/E provider’s background and qualifications. Is the examination requested really appropriate? Make sure the identified specialty of the physician is appropriate for the impairment being evaluated. See if the C/E doctor is Board Certified in his specialty area. Has the C/E provider been requested to perform the appropriate testing? These areas require careful evaluation by counsel to make sure that the appropriate physician is doing the examination and that the appropriate testing is being done by that physician.
Another basis for challenging the C/E is to discuss with the claimant whether or not they have any prior relationship with the examining doctor. Is this doctor a former treating physician with whom the claimant had a bad relationship? Is this a former “company doctor” from a workers’ compensation claim who examined the claimant in that setting? Does the claimant have any personal knowledge of the physician, or other information (newspaper articles or the like) that provide a basis for questioning the physician’s ability to provide a fair, impartial and complete medical examination?
Additionally, things to be considered are whether the examination is too far from the claimant’s home, or whether any identified tests are appropriate or inappropriate based on the treating physician’s recommendations. It is not unusual to have a treating physician indicate that he does not believe it is in the best interest of the claimant to undergo a graded exercise stress test, even though Social Security consultants and reviewers may think it is otherwise advisable or necessary for the evaluation of disability. In those cases, the claimant may have a valid basis for refusing part of all of the examination.
Regulatory bases for objecting to the provider include any “good reason” provided by the claimant or his representative, including specifically:
1. The doctor did exam in the past for SSA, workers’ compensation, etc.
2. The provider previously examined the claimant in a prior disability denial.
3. Location of the office is objectionable (i.e.2nd floor with no elevator access.
4. There are travel restrictions.
5. There are language barriers between the provider and the claimant.
6. The C/E physician “lacks objectivity” (based on a general objective objectivity basis, rather than a specific objectivity basis) and should be disqualified. 20 CFR § 404.1519j; see also 20 CFR § 404.1519s.
7. The treating physician has not been contacted, or every "reasonable effort" has not been made to re-contact the treating physician for the desired or needed information. 20 CFR §§ 404.1512(d), (e) and (f).
Second, assuming that the C/E is not otherwise objectionable and the claimant will attend, the claimant needs to be fully prepared as to what to expect at the C/E. Preparation of the client would include the following:
1. Describe the nature of the examination.
2. Describe the tests to be performed and the purposes of the tests.
3. Advise the claimant to be prepared to identify all medical impairments, physical and/or emotional.
4. Advise the claimant to neither exaggerate or minimize symptoms and complaints.
5. Have the claimant take all medically necessary or prescribed aids to the appointment (canes, crutches, hearing aids, glasses, braces, etc.).
6. Have the claimant be prepared to identify his/her RFC, based on his/her belief of his/her limitations, and to describe activities consistent with the RFC (Identifying weight capable of lifting and carrying, identifying problems with concentration and memory, etc.).
7. Advise the claimant to lead a normal life and not to “rest up” for the examination during the days before the exam.
8. Have the claimant take all medications as directed, despite any side effects.
9. Have the claimant take a list of medication to the examination.
10. Have the claimant attend at and appear in a normal state at the examination (i.e. do not wear ‘Sunday clothes’ or put on excessive makeup or do anything outside the normal).
11. Discuss the peculiarities of any of your specific client’s specific exam with the client (unusual testing, facts you know about the doctor, etc.).
12. Consider having an impartial witness attend the examination as an observer.
Third, some attorneys will write to the C/E provider in advance of the appointment, to provide information about the pertinent history, to provide additional medical records, or to help frame the issues. This is an area that needs to be handled carefully, and if at the hearing level, a copy of such correspondence should be provided to the ALJ. It may be that the benefits of such a letter are outweighed by the risks of an adverse result, or of negative feedback from the doctor, or from weakening your ability to otherwise challenge the examination on appeal.
