Consultative Exams in Social Security Disability and SSI Cases - Melvin
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Consultative Exams in Social Security Disability and SSI Cases

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Oftentimes, when a claimant files a social security disability claim, the state agency in charge of making a decision will schedule a consultative examination (CE) with one of the physicians and/or psychologists on contract with the Social Security Administration. There are probably many reasons for this. For example, there may be insufficient existing medical evidence in the file in order to make an effective determination of the case.

The state agency doctors and psychologists are considered experts in understanding Social Security’s regulations and how they apply in making a disability determination. See my post from October 28, 2014 for more information on state agency consultants and how their opinions are weighed by adjudicators at each respective level of adjudication.

There are situations, however, in which it is inappropriate for a state agency to purchase a CE. Social Security’s Programs Operations Manual (POMS) gives guidance for when the purchase of a CE is inappropriate. POMS citations usually begin with the letters “DI.” The relevant POMS for purposes of this post is DI 22510.006.

The first situation in which purchase of a CE is not appropriate is where the evidence already in the case file is consistent and sufficient enough to adjudicate the claim. It seems apparent that in such situations, the purchase of a CE would be redundant and a waste of government resources.

Social Security often conducts continuing disability reviews (CDRs) in order to determine whether an individual who is receiving benefits continues to be medically disabled. The subject of CDRs merits its own independent post for another day. But in a nutshell, a person who is determined to be no longer disabled will discontinue receiving benefits.

In the case of a CDR, the nature of the person’s impairments determines whether or not the purchase of a CE is appropriate in making the determination. Adjudicators are advised not to purchase a CE when a person:

●      Meets a listing impairment and will always meet the listing. (See my post from June 9th, 2014 for more information on Social Security’s Listing of Impairments; in a nutshell these listings set forth medical impairments that meet certain strictly and precisely defined medical criteria and are considered significant and severe enough to be disabling per se).

●      Meets the requirements for certain Medical Improvement Not Expected (MINE) or equivalent cases (this concept is a little beyond the scope of this post).

Sometimes a state agency will purchase diagnostic testing to determine the nature and severity of a claimant’s impairments, such as allegations of chronic back pain. The agency will usually not purchase an MRI or CT scan, even though these tests seem to be the gold standard for diagnosing spine problems, because these are very expensive tests. But the agency will sometimes purchase X-rays or other diagnostic tests.

However, where a treating source (TS) has already performed a specific test or procedure, purchase of a CE for such diagnostic testing would be duplicative and wasteful, and is therefore inappropriate. The state agency may simply request copies of the results of such testing from the TS.

There are diagnostic tests or procedures that, while they may be very illuminating as to the nature and severity of the claimant’s impairments, pose a significant risk to the claimant. Examples of such tests or procedures are: myelograms, arteriograms, or cardiac catherizations. Such tests are inappropriate unless specifically recommended by a qualified medical consultant.

It is inappropriate for a state agency to purchase symptom validity tests (SVT) to evaluate issues of malingering or credibility of claimants. The reason for this is that, as nice as it would be in an ideal world, there simply are no objective tests that can conclusively determine the presence of inaccurate self-reporting.

However, the Office of Disability Programs may approve rare exceptions to this prohibition on a case-by-case basis under certain limited circumstances.

In addition, when the results of SVT are part of the medical evidence in the file, they may be considered along with all of the other evidence of record. (I find this somewhat contradictory, as there are other ways of determining a claimant’s credibility besides SVT, which purport to be objective measurements of credibility, but which cannot conclusively determine the presence of malingering).

The SVT I have come across most commonly are the Waddell’s signs. According to Wikipedia, Waddell’s signs “may indicate non-organic or psychological component to chronic low back pain. Historically, they have also been used to detect malingering in patients with back pain.”

According to the same source, Waddell’s testing takes less than a minute to accomplish.

https://en.wikipedia.org/wiki/Waddell%27s_signs

(visited June 15, 2015).

However, according to the same source, there has been significant criticism of Waddell’s testing, particularly from studies which claim that it does not reliably distinguish between the organic component of pain and the psychological component of pain.

In spite of this, I have still seen consultative examining sources include Waddell’s signs in their reports. I can only hope that they did not get paid for the extra forty-five seconds or so that they spent in doing this testing.

State agencies are not supposed to purchase CEs in order to evaluate issues of drug or alcohol addiction. This is a complex issue (and possibly also merits a separate post). Social Security Ruling 13-2p sets forth criteria for determining whether drug or alcohol addiction (DAA) is material to a finding of disability. In a nutshell, if a claimant would not be disabled but for drug or alcohol addiction, they cannot receive disability benefits. The public policy behind this rule is wise and apparent on its face – namely, that the public cannot be made to subsidize a drug or alcohol addiction. But purchasing a CE is simply not an appropriate method to determine this issue.

Issues of whether or not a claimant has engaged in substantial gainful activity (SGA) must be resolved before purchasing a CE. If a claimant has performed work at an SGA level, they are cannot receive disability benefits no matter how severe their impairments are. A person is presumed to have engaged in substantial gainful activity if they have earned more than a specific amount of money, which is currently $1090 per month (or $1820 for statutorily blind individuals). See also my post from August 26, 2014 for an analysis of the Five Step Sequential process used by Social Security in determining disability.

Where certain technical factors (as opposed to medical factors) prevent a claimant from receiving benefits, purchase of a CE is inappropriate. These situations include but are not limited to:

●      When the claimant’s date last insured for disability purposes (DLI) is in the past and there is no possibility of establishing an onset date of disability prior to the DLI. (Date Last Insured is the last date a person is insured for disability purposes and is typically five years after the last date a person earned significant wages. The disability program is somewhat analogous to private insurance in that, once you stop paying a premium – or in this case contributing social security taxes – your insurance ends).

●      In the case of widow’s or widower’s disability benefits (DWB), where the prescribed period has ended and there is no possibility of establishing an onset date of disability prior to the end of the prescribed period. (The prescribed period in DWB cases is a little too technical for explanation in this post – trust me on this, I get confused on this one).

●      In the case of child’s benefits, when there is no possibility of establishing a disability onset date before the date the claimant turned 22 years of age.

In my experience, it is oftentimes preferable, when possible, for a claimant to document his or her impairments extensively through medical evidence from treating sources rather than consultative examinations. This is because a consultative exam, while it can be very illuminating, is brief and provides only a snapshot of a claimant’s functioning at a given moment in time. Of necessity, it is not as detailed and specific as a longitudinal record of treatment from one’s own medical doctors and health care providers.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.

Contact a Salt Lake City Attorney Committed to Protecting Your Rights

When it comes the family law and social security disability, each client and case is different. It is also important to select an attorney with the experience, skills and professionalism required to address your legal issues. To learn more, contact the Salt Lake City law offices of Melvin A. Cook and schedule an initial consultation to discuss your case.

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