Social Security: Federal Court Exposes Consultative Exam Abuse

Joe Di Bartolomeo
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Joe Di Bartolomeo is a top rated personal injury lawyer helping Oregon and Washington families
Posted on Oct 12, 2015

When it decides a disability claim, the Social Security Administration often relies upon the opinions of physicians who are hired to perform examinations of disability claimants. These examinations are referred to as “Consultive Examinations,” also referred to as  CE’s.  Some physicians who perform do a thorough job. They review medical literature, and keep updated on new medical discoveries. Others, however, perform extremely short examinations, and are out of date on recent medical advances.

At disability hearings, the Administrative Law Judge may retain a Medical Expert, also called an “ME.”  some ME witnesses are good, and others suffer the same shortcomings as many consultive examiners. In a recent case, a federal court judge took a bold step regarding chronically deficient medical examiner testimony.

The federal court appeal started like many others. At hearing, the disability claim was denied, and it was appealed to the Appeals Council. Review was denied, and the case went to a federal court. The federal court judge decided to send back, or “remand” the case to the Administrative Law Judge. However, the claim was denied again, and that decision was appealed again, but this time, the federal court commented on the medical examiner testimony.

This time, the federal judge cited other federal court cases involving the same medical expert who had testified at hearing. These other federal court cases also found that the SSA erred in giving substantial weight to a particular medical expert’s opinions. The court found that troubling that the Social Security Administration was using the same doctor over and over to attack treating doctor opinions.

The court suggested that this physician’s frequency of testimony and compensation for the testimony should be disclosed. The court reasoned that this information would be highly relevant to the credibility of the physician’s opinions. In the order sending the case back to the hearings level, the federal court specifically ordered the Administrative Law Judge to obtain an itemized disclosure of the expert medical witness’s compensation and history of testimony on behalf of the Social Security Administration.

How does this affect your claim?

Social Security will often employ a physician to perform a consultive examination. Some of these physicians have a reputation for bias against disability claimants. Unfortunately, these kinds of physicians are not going to help your claim. However, there are a few things you can do to minimize the negative impact of a biased consultive examiner.

If you are going to a consultive examination, here are some things to consider:

  • As with any examination, it is critical that you give your best effort. Many physicians have “distraction tests,” or perform cross testing to see if you are giving good voluntary effort. If the physician suspects that you are giving less than good effort, it could significantly impact your case because this speaks to your credibility.
  • Think about bringing medical records, prescription lists, and diaries of your symptoms.
  • After the examination, write down your recollections about the examination as soon as possible, and know how long the examination actually took. We have heard reports that examinations have taken five minutes or less.

If your physician is supporting the disability claim, obtain a copy of your claims file, and provide a copy of the report to your treating doctor. He or she may be willing to write a report rebutting the conclusions of the consultive examiner.