Refusing To Attend The SSA Exam (CE); Post Hearing Proffers of a CE from the Judge
What To Do When Refusing To Attend the CE.
Remember that the claimant does have the right to refuse to attend a C/E. Refusing a consultative examination must be handled carefully, as the refusal to attend an examination at the initial level “may" result in a finding that disability does not exist or, if on a continuing disability review, “may" result in a finding that disability has ended. 20 CFR § 404.1518(a). In order to clearly establish the basis for refusing to attend an examination, you should follow a series of steps:
Upon receipt of the notice of examination, find out what information is missing.
Request the State Agency to re-contact the treating source for the additional information or clarification.
Per Regulations, Social Security “will first recontact your treating physician" in order to determine “whether additional information is readily available." 20 CFR § 404.1512(e)(1); see also generally 20 CFR §§ 404.1512(d, (e) and (f).
Get written objection to the C/E from the treating physician. By Regulation, if any of the treating physicians tell the claimant that he/she “should not take the examination or the test" then Social Security“may be able to get the information" in another way. 20 CFR § 404.1518(c).
NOTE: There is no specific requirement that a specific reason be provided as to why the examination or test cannot be obtained.
Before actually refusing to attend an examination, a detailed letter must be sent to the client explaining the risks of such action. The client’s written acknowledgment of understanding and authority to proceed in this manner is also recommended.
Once the examination is attended, all is not lost. First to do: Request from the ALJ a listing of which documents have been forwarded to the State Agency for the C/E physician’s review. At the hearing, make sure the letter and any response on this issue is marked as an exhibit. It is crucial to a complete record and any possible judicial review that may occur.
There are still ways in which to attack the examination. To be prepared for the hearing, there are several options:
Talk to the claimant about what happened at the examination and what did not happen.
Have the claimant write a letter about the length of the c/e – most claimants have been through enough examinations by enough physicians that they can easily state that the Social Security C/E physician failed to do tests which most of the other doctors have performed and can usually describe them in lay terms that are perfect to attack the c/e credibility.
If there are witnesses who attended the examination the witnesses can write their observations, including length of appointment and how long they were in the exam versus waiting in the lobby.
Verify that the requested testing was actually performed.
Review the report for incorrect data (wrong age, height, gender, etc.).
Check for missing diagnoses of obvious conditions (no mention of back scars during an orthopedic examination where the claimant has had 2 back surgeries).
Under the right circumstances, request the State Agency obtain a physical or mental RFC assessment from the consultant.
Consider submission of your own interrogatory or questionnaire to the physician for completion.
Again request the State Agency identify the documents provided to the consultative examiner, or request the ALJ to identify the documents provided to the state agency before the consultative examination was arranged and then verify what the physician actually received.
Another option is to contact the consultant for follow up information. Social Security policy does not specifically prohibit contacting the C/E physician for additional information. Any such contact is at the expense of the claimant, so beware of additional costs. Also note that the State Agency and many ALJs consider the contacting of a C/E physician with written questions as the submission of interrogatories. Some ALJs and the State Agency believe that interrogatories must be submitted through the ALJ and in some cases advise C/E physicians to not respond to inquiries from claimant’s counsel, SSA policy notwithstanding.
Also an option is to provide the report to a treating source who will review the report and point out any inaccuracies or inadequacies in the report or examination, especially if you are able to identify that the consultative examiner had no more than 10-15 pages of medical records. Check the accuracy of the history, as a proper physical examination requires, at a minimum, proper history taking. Have a reliable witness attend the examination with the claimant to prepare a letter or affidavit about his or her observations of the examination as well.
RESPONDING TO A PROFFER WHEN A C/E OCCURS POSTHEARING
When an ALJ receives additional evidence after the hearing, from a source other than the claimant, the ALJ must proffer the evidence. See,Hearings, Appeals and Litigation Law Manual (HALLEX) I-2-7-1. This most usually involves a C/E requested by the ALJ. The proffer provides the claimant or counsel the opportunity to comment on, object to or refute the evidence by submitting other evidence, as well as allowing a supplemental hearing or the right to cross examine the author of the C/E. Id. The proffer procedures are very explicit and, if not followed, are many times an immediate basis for a remand by the Appeals Council from an unfavorable decision by the ALJ. The ALJ “must" address the proffer comments of counsel in the written decision, rule on any objections raised and include the objections and ruling in the record. HALLEX I-2-7-30 H.
Many of the steps to be followed are the same steps described above in Section C (2) and will not be repeated here. Additional factors to consider:
Renew any objections raised before the examination occurred.
Raise objections to the report based on lack of appropriate expertise, testing done or not done, or based on errors on the face of the report.
Raise objections as to the form of any rfc assessments provided by the C/E.
Request a supplemental hearing to ask additional questions to the medical or vocational experts.
Propose appropriate interrogatories to the C/E physician.
Request copies of all clinical notes and testing by the C/E physician.
Request a subpoena be issued to the C/E doctor to appear and testify.
Request time from the ALJ to obtain a narrative response to the C/E report from the treating physician.
Provide the treating physician with data about the length of the exam and the forms or affidavit from the client about the exam or testing completed.
The Regulations at 20 CFR § 404.1519a through 20 CFR § 404.1519q describe rules and guidelines about purchasing examinations, objecting to examinations and allowing a treating source to perform the examination and should be reviewed in depth.
(Regulations cited herein refer to the Title II disability program. Identical regulations exist for the SSI disability program, but are omitted from the text for ease of reading. See,e.g., 20 CFR§416.912, 20 CFR§416.913; 20 CFR§416.917; 20 CFR§416.918; 20 CFR§§416.919a - 416.919q).