Consultative Examinations for Social Security Disability Claims

You may be here because either your Administrative Law Judge or the Department of Disability Services (DDS) arm of the Social Security Administration (SSA) has scheduled an appointment for you to see one of their doctors, either a medical doctor or psychologist. These are commonly referred to as a Consultative Examination (CE) or Consultative Evaluation. You should refer to the letter scheduling the appointment for the date and time of your appointment.

Is having a CE a good thing? Is it going to hurt your case? Help your case? Are there things you can do to improve your chances that the report you get from the consultative doctor is going to actually help your case?

This article addresses the most asked questions from claimants when an examination is scheduled, as follows.

What is a CE? And Are They Good Or Bad?

In almost every Social Security disability claim, the judge or the Social Security claims handler will order a consultative examination.

The reason they do this is to help develop the medical record. One of the things that social security law requires is that Social Security Administration help develop the medical and administrative record.

These consultative examinations are supposed to help the decision-maker – the adjudicator or the judge – make a determination about your capacity for work. Now the consultative can be ordered by either: (a) the adjudicator – at the initial or the Recon stage, or (b) the judge – typically at the hearing – if the judge feels that there’s not enough information to make a decision.

So, consultative examinations are not bad or good. And, generally speaking, if it’s ordered the hearing it means that the judge feels like there’s enough there, but that he or she needs to see a little bit more and will therefore order the consultative evaluation.

Who Conducts The CE?

The doctors or psychologists that give the consultative examinations are on a panel, and basically they are paid a flat fee for doing the evaluation. And they will specifically say in these reports in most cases that they are not doing an evaluation for treatment purposes. It’s purely for diagnostic purposes to issue an opinion.

In some cases – and this is really the ideal – the judge will order a treating physician, which is somebody who knows you already, to do the consultative evaluation. That’s somewhat uncommon, unfortunately. But that’s really the best type of consultative examination because that’s from a doctor who treats you and knows you.

However, some new evidence rules went into effect in 2010 and 2017. These rules basically say that the reports from a consultative doctor can be given controlling weight by a judge. Up until February 2017, a treating physician’s report had to be given controlling weight over a consultative examination. But that’s changed. So, a judge can ignore a doctor who has treated you for the last seven years and take the opinion of someone who saw you one time for an hour as being controlling evidence.

As you can imagine, I think that’s absurd. It’s ridiculous. But that’s the rule. So a consultative evaluation is taking on more relevance and more importance as time goes by. So it’s important to properly prepare for them.

Mental vs. Physical Consultative Examinations

I will also tell you that consultative examinations for physical problems are typically – in my review at least – less reliable and less likely to help your claim than a mental health consultative evaluation.

The reason for that is that the doctors who will appear on those panels (and again who get paid a flat fee that is not a lot of money) typically are industrial clinic doctors. These are typically the same doctors who do independent medical examinations for insurance companies in car accident cases, or in workers compensation claims. Industrial clinic doctors frequently are not the “cream of the crop” when it comes to doctors.

Secondly, their bias generally is to find that there’s not a whole lot wrong with you. So, more often than not, a consultative evaluation from an industrial clinic doctor for a physical evaluation is not going to help us very much.

By contrast the doctors in the panel that are psychologists are typically independent doctors who do this to make a little bit of extra money. They seem to have less of a built-in bias. They typically will be a little more fair when it comes to their evaluation. Although, again, some of them are less fair than others.

But, typically you’re going to get a better result from the psychological consultative than you will from a physical consultative.

All of that is very much a generalization about what happens.

Do I Have To Go?

The first question we are typically asked is whether you have to go to this exam. Can you say “No, I don’t really want to go.”

It is EXTREMELY important that you go to this appointment. If you miss this appointment without a valid excuse, like you were very ill or hospitalized, you may be denied for non-compliance, and you definitely do not want that!

There are cases where a claimant decided they did not want to go to the examination. The case was then denied, and a Request for Hearing was filed. In some cases, the Administrative Law Judge (ALJ) may see that a claimant’s failed to cooperate and deny the claim. So, it’s super important that you go to this medical exam.

What Happens in a Consultative Examination?

In most cases, the physician that is going to examine you is a competent doctor and you should approach the examination as if he/she were your own personal physician. The doctor will perform an examination much like you have already had from your own personal physicians and you should fully cooperate with them – within reason.

What do you mean “within reason?”

Sometimes, the examining physician may be biased, or they may have a poor bedside manner, or both. You should still do your best to remain polite and keep your cool.

If a physician asks you to perform an act that will cause you excruciating pain, or something that you cannot do (like bend at the waist due to several L-spine level fusions), you can politely decline. However, you should always give your best effort.

What Should I Do During the Examination?

There is no way to guarantee that the examining doctor is going to write a positive report for you, but below is a list of things you can do to make sure that you do your part:

1. Be polite. You do not need to be sugary sweet, or overly nice. But you should be polite.
2. Do not exaggerate your symptoms. Keep in mind that reporting your pain as a 10 out of 10 is very high and is typically the type of pain that causes people to lose consciousness or be hospitalized.
3. Give your best effort when asked to perform tasks.
4. Be mindful that you may be watched or listened to by the staff while you are in the waiting room. This is a serious thing, and it is best that you do not speak about your case or make jokes while you are there. The staff could misinterpret your nervous jokes as you being completely fine.
5. You can bring someone with you, but keep in mind that the physician may not let the other person into the examination room. If they do, it’s a great way to ensure that things happened they say it did during the report.
6. Complete the Questionnaire (attached) as soon after your examination as possible, and return it to us so that we can attack the report, if necessary.

What Can You Do To Improve Your Chances at a Consultative Evaluation?

What you can do to improve your chances would be as follows:

Assume You Are Being Watched at All Times

First of all realize that when you walk into the evaluation office, you may be being observed – even walking in from the parking lot. That means the doctor or someone on his staff may be watching you walk in and watching you in the waiting room.

So, let’s say you walk in and you have a perfectly normal gait (walking pattern) and you don’t seem to be bent over and pain. But when you walk into the doctor’s office you are limping and you’re complaining that everything hurts. And you can’t get on and off the examination table. Then the doctor is going to note that discrepancy in the report. So, don’t come in and then start really playing up for the doctor what you think he wants to hear, what you think is necessary for a favorable opinion.

Just be yourself and tell the truth.

Simply realize that you’re being observed from the time you pull in and you walk in. Whether you drive over or there somebody’s driving you. All of that is being noted and that does find its way into the evaluation.

Don’t Exaggerate Symptoms or Malinger

Second, doctors of both physical medicine and mental health medicine are looking for examples of symptom exaggeration or malingering. Using a variety of tests (they’re not going to tell you that they’re giving you those tests; they’re just going to be doing them), they’re going to be trying to figure out whether you are over-exaggerating your symptoms.

So, again, you want to be very truthful.

You want to be very forthcoming about what you’re dealing with.

But don’t exaggerate.

Don’t say everything hurts you 24 hours a day to the point you can’t focus and concentrate ever.

It’s much better to say “this particular issue – my hand – was hurting, before but it’s much better now. The main problem now is my neck problem. …”

So you want to just tell the truth. If something is improved, tell the doctor that. If the medicines are working, tell the doctors that. And if there’s something that’s really bothering you, let them know. It’s much better to come across as being credible and believable and honest than it is to say, “everything is hurting me.” Because that’s just not going to fly, especially with a doctor that might have a built-in bias.

Bring Your Own Objective Medical Records

If you’ve been going to your own doctor for months or years, supply the consultative doctor with your medical records and reports, including things like MRIs, CT-Scans, x-rays, ultrasound records, etc., so that the consultative doctor will have that background information when he or she sees you.

Doctors are less likely to go against the opinion of a longtime treating doctor. I’m not saying they won’t ever do it. But if you have a doctor that says, “I read this MRI and there is a significant problem with a bulging disc that has a nerve root impingement”, it’s much, much less likely the consultative doctor is going to basically say there’s nothing wrong with you.

The same goes with a psychological examination. If you go in and you have reports of a psychiatric hospitalization and significant problems noted by a treating doctor, the psychologist doing the consultative is going to probably be less likely to say that the long-time treating doctors are not correct.

Doctors don’t like to contradict one another. If there are records in there that talk about specific and significant problems, it’s more likely that the consultative doctor is going to basically echo those reports find that you have some significant problems as well.

Summary

So those are a couple of thoughts I have about consultative examinations.

One thing I find just absurd about this whole process is a doctor who will examine you, who knows nothing about you, and sees no records at all, will basically be doing a one-hour evaluation and making conclusions that could really turn the decision in your disability case.

You definitely want to go. You want to be on time. And like I said, you want to be completely truthful. And, if you can, provide background information about you to the doctor so that he or she won’t be going in blind.

Finally, if you go to the consultative doctor and the doctor only spends five minutes with you, doesn’t touch you, asks you only a couple of questions, and has you leave – make note of that. That may be grounds to object to the weight given to the consultative examination if it was only for five minutes and really nothing much was done.

To that end, you may consider filling out the attached Post Consultative Examination Questionnaire and that may convince the Judge or Adjudicator to give the CE report less weight as evidence in the claim.

Post Consultative Examination Questionnaire