Attacking the SSA Consultative Examination
In general, the claimant is charged with the responsibility of showing whether he or she is blind or suffers from medical problems that cause him or her to be disabled within the meaning of the Social Security Act. 20 CFR ? 404.1512 (a). That means the claimant is required to submit evidence about his medical, vocational and educational background, including medical evidence of his or her disability. 20 CFR ? 404.1512 (a), (b) and (c). Generally this will include medical evidence from licensed physicians, 20 CFR ? 404.1513 (a), but may also include information from "other sources" who have specialized knowledge of the conditions or limitations involved. 20 CFR ? 404.1513 (d). The record "must be complete and detailed enough" to allow Social Security to make a decision on the issue of disability or blindness, and "must allow" Social Security to determine the nature and severity of his or her impairments, whether the duration requirement of the Social Security Act is met, and what residual functional capacity (rfc) remains to do work-related physical and mental activities. 20 CFR ?? 404.1513 (e)(1), (2) and (3).
In the event the claimant's medical sources either cannot or will not give sufficient medical evidence to Social Security in order for a decision to be made about disability or blindness, Social Security may ask the claimant to undergo one or more physical or mental consultative examinations (C/E) or tests, at the expense of Social Security. 20 CFR ? 404.1517. Social Security will provide reasonable notice of the examination or test, including notice of the date, time and place and the test(s) to be given, as well as the name of the person or facility which will complete the examination. 20 CFR ? 404.1517. Social Security is also required to give the examiner "any necessary background information" about the claimant's condition. 20 CFR ? 404.1517.
B. OBJECTING TO THE EXAM BEFORE IT OCCURS
Often times Social Security requests a consultative examination when a complete examination is not really necessary. The first question to ask the State Agency is what information is needed that prompts them to believe the record is incomplete, because if the record is complete then no C/E is necessary. If the response is something simple like 'we need a more accurate description of range of motion,' then there are alternatives to a complete examination. For example, a blank range of motion sheet could be provided to the treating physician and the information obtained from the treating source. Missing test data can be obtained from the treating source that has been non-responsive to State Agency requests. The treating physician or treating source is always the first preferred source of information.
Usually, the first notice of a consultative examination being scheduled is either a phone call making sure the claimant will attend a C/E if it is scheduled, or is a letter in the mail providing notice of the C/E. At this point, your first option is to request a treating physician or treating source to perform the consultative examination. When a treating source is qualified, equipped and willing to perform the examination or testing required by Social Security, for the fee as scheduled by Social Security, the treating source "will" be the preferred source to do the required examination. 20 CFR ? 404.1519h, 20 CFR ? 404.1519g(b). If the first notification is an actual exam date, then you need to contact the treating physician or treating source, see if they will do the examination, and if so, the recommended course is to provide a letter to the treating physician to sign indicating his or her willingness to do the examination for Social Security. Then provide the State Agency with a copy of the letter from the treating physician and request that the examination be cancelled under the Regulations.
NOTE: There is nothing in the Regulations that prohibit the claimant from supplementing Social Security's "Fee Schedule Payment" to make up the standard office visit cost for the physician visit. It is only required that the physician be otherwise qualified and not have a history of incomplete or untimely reports. Id.; 20 CFR ? 404.1519i(d).
Another alternative is to find out what information is missing, and then tell Social Security that you will provide an examination at your own expense, particularly if there is not a treating physician in the picture. You need to make sure that before any such examination is arranged that you have a clear delineation of what data or information is needed by the State Agency so that the exam is made worthwhile and that it also satisfies the "completeness" requirement of the Regulations. A letter to the State Agency documenting the agreed upon weaknesses or gaps or necessary bits of information to make the record complete is recommended.