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The Consultative Exam (CE): Part 1

I have been asked a few questions which relate to the Consultative Examination (CE), which is basically a doctor’s appointment sometimes scheduled on your behalf by the SSA if they feel that additional medical testing/evidence is required to help them render a decision in your case. In this and the following two posts, I will answer questions about the consultative exam and explain in further detail what you can expect at the CE.

Question:

If the medical records I submitted with my claim are determined to be inadequate to make a disability determination, is there a possibility that additional information would be requested by the SSA on my behalf?

Answer:

The answer to your question is ‘maybe.’ If additional medical information is requested and/or a clarification is needed, your original treating source (physician, specialist, psychiatrist, etc.) is the first preferred source to contact. However, there is a second option available, which is the scheduling of a consultative examination (commonly known as a CE) through an independent source.

Again, your treating source is the preferred choice for additional examinations as long as the following requirements are met:

  • Your treating source (physicians, specialist, psychiatrists, etc.) is qualified;
  • He/she has access to the testing equipment required to perform the examination and/or requested testing;
  • He/she is willing to perform the requested examination and/or tests for a set fee, established by the state in which you have made application in;
  • He/she is able to furnish a complete report within a specified time limit

However, as mentioned above, there are provisions that allow for an independent source, that person other than the treating source, to conduct a consultative examination and any future testing. Those instances in which an independent source would be considered over a treating source are as follows:

  • The treating source cannot or does not prefer to conduct the requested examination;
  • Conflicts and/or inconsistencies exist in the claimant’s file which are unable to be rectified by going back to the treating source;
  • The claimant prefers an independent source and presents a valid reason for doing so;
  • The treating source is considered an unproductive source

So, when the SSA determines it necessary to schedule a CE, they will contact the independent source, schedule the appointment, and then notify you of the appointment date and time.

The types of additional testing and/or examinations requested are strictly limited to the additional evidence needed in order to render a decision on the claimant’s application for disability. Tests conducted outside of the needed information requested are not permissible unless the examination warrants additional testing. In this event, the treating source must have prior approval before conducting further tests.

Please stay tuned for Part 2 and Part 3 of this mini-series on the consultative exam.

Your Credibility – A Key Factor in Winning Your Claim

In a previous blog post, I set out several discussion points that I raise with my clients in our pre-hearing conferences.  One of those discussion points has to do with “credibility” – are you a believable witness?

While I think that the quality and nature of your medical record functions as the most important factor as to whether your case will be approved, your credibility is almost as important.

When I refer to credibility, I am speaking of whether you come across as truthful and believable.   Credibility is not something you can manufacture – if your medical condition is not serious and you could perform work, you will face a difficult time winning.  However, it is possible for a truthful, legitimately disabled person to lose because he or she did not appear believable in his/her testimony.

Realize that every claimant that a judge meets during the day is asserting that he/she is disabled. Therefore, your demeanor and your testimony must come across as believable in order to be successful at the hearing. Here are some tips on how to come across as a credible witness at a Social Security Disability hearing.

1. Dress Appropriately

Chosen court attire often aids in determining the credibility of the claimant. Wherein State and Federal courts require a minimum of casual dress, Social Security hearings are generally less formal. Although informal, how a claimant dresses should be such that it conveys respect to the Administrative Law Judge (ALJ). Torn blue jeans and tank tops are examples of clothing that should be avoided at a disability hearing. This is not to say that you have to dress formal; donning formal clothing is unnecessary, and in fact, can send a conflicting message to the judge. For example, an applicant wearing high heels although she insists that she cannot walk without pain will definitely make any testimony she gives less credible. A rule of thumb is to dress conservatively but comfortably.

2. Be specific in your answers

An individual’s ability to answer with informative responses to questions posed by a judge will result in the individual’s testimony being credible. For instance, during a hearing, it is common for the ALJ to ask the applicant questions regarding his/her physical ability. Questions like “How far can you walk?”; “How much weight can you carry?”; and “How long can you sit?” are all questions that an applicant can expect to be asked of him/her during a hearing. It is extremely hard for a judge to consider the profound effect of an individual’s impairment if the applicant responds to a judge’s inquiry with “I don’t know.” If an applicant fails to be specific, then the judge will more than likely consider answers of this type not credible.

3. Don’t over-exaggerate your pain

Physical pain is common to most disabilities.  An individual’s disability caseworker as well as any ALJ expects disability applicants to list pain as a chief complaint.  As such, it is common during the hearing for the Judge to inquire as to the level of pain that a claimant experiences on a routine basis.  Again, although a degree of physical pain is expected, stating pain consistently at level 10 is considered an exaggeration and will result in that portion of the individual’s testimony not being considered.  The basis for this decision is that a consistent pain at level 10 would result in a mental deficiency.  It is unlikely that the individual experiencing pain at level ten 24 hours a day, 7 days a week, would be able to be present during a hearing, much less offer supporting and competent testimony.  A rule of thumb for describing pain is to state the pain experienced in percentages.  For example, an individual may experience pain at level five, seventy-five percent of the days, while the other twenty-five percent is at a level 10.  It is also helpful to describe any events that trigger an increase in pain.  For instance, individuals with RSD, a nerve condition, experience an increase in pain during cold weather. Doing this will also help you to come across as being specific.

So, before you attend your Social Security Disability hearing, just remember that credibility is an important element and be thinking of ways to appear credibly. Without credibility, even a deserving claimant’s chance of receiving benefits is compromised.

How Can Waiting to Apply for Benefits Cost You Money?

Recently, I came across a very relevant blog post written by New York Social Security disability lawyer Lew Insler entitled Waiting to Apply for Social Security Disability Can Cost You Money.  Attorney Insler comments “I still don’t understand why some people wait years before even filing their claims. Not only do claimants lose out on years of potential benefits, but the longer a person waits to apply, the harder it may be to obtain the medical records necessary to show disability while they are still covered for benefits.

I think that Mr. Insler’s point is very well taken.  When you apply for Title II disability benefits, you can only get paid up to one year prior to your application date, even if your disability began two, three or more years ago.  In a Title XVI SSI case you can only get paid as of the date of application.

Another problem that can arise if you want relates to your insured status for Title II Disability.  Unlike retirement benefits, which are calculated based on your lifetime earnings, Disability benefits look at your earnings during the 10 years prior to the onset of your disability.  Generally you have to show that you worked for 5 out of the past 10 years.   When you stop working, your coverage will therefore remain in force for the next 4 to 5 years.  You need to show that you became disabled while you were covered. Continue reading →

Q & A: How does the SSA determine what my functional limitations are?

In this 10th Q & A post, I discuss how the SSA determines what your functional limitations are.

Question:

How exactly does the SSA determine the effects of a claimant’s symptoms on his or her ability to function in the workplace?

My answer:

As you know, symptoms arising from your condition can severely affect your daily functioning. But in the SSA’s eyes, merely stating that you have symptoms that interfere with your abilities is not enough to win approval. The SSA, in deciding your claim, has to go a step deeper to determine how your symptoms effect your functioning. In doing this, the SSA will consider the following:

  • How the symptom affects the daily activities of the claimant; a claimant’s ability to function; his/her limitations as a result of the symptom
  • Location, duration, frequency and intensity of the pain or other symptom
  • Side effects of any medication being taken, as well as the type of medication and the dosage taken
  • Treatments, outside of medication, for the relief of pain or other symptoms
  • Avenues which a claimant uses or has used to relieve pain or other symptoms

A good lawyer should also be able to draw conclusions about what functional limitations arise from your symptoms. Without being able to translate your medical symptoms into work limitations, I can say that you will have a tough time winning your claim. Work limitations are the bread and butter of a winning case.

One last point about extracting functional limitations from your symptoms: It is important that physicians note in a claimant’s medical records how any symptom experienced by the claimant affects his/her ability to function on a day-by-day basis. This supportive documentation will only substantiate an individual’s disability claim and leave little to no room for misinterpretation about how your symptoms affect your functioning.

Q & A: How much and what kind of information has to be present in my medical records?

Throughout my Q & A Series, I have discussed the importance of medical records many, many times. Hopefully you are starting to get the idea that you can’t win a disability claim without good medical evidence to back up your claim! Now, I’d like to address one last question about what kind of information should be contained within the records that you submit with your claim for disability.

Question:

I recently applied for disability and was denied. Now, I am in the appeals process and want to make sure that the medical records I submit contain the right information.  How much and what kind of information is needed in my medical reports? If my medical reports are too vague, can this hurt me?

My answer:

As mentioned in other posts, until you are afforded a hearing in your case, medical records are all you have. Your documents represent you. They tell your story – a story that needs to fully represent your medical condition. When medical records are vague and/or critical test results are missing, either one or two things could happen. First, your case or hearing can be prolonged until such time as the needed tests have been completed and the record supplemented, or 2) You will receive an additional denial. As a claimant, you do not want either of these two things to happen. This process already takes long enough without additional delays and denials.

Although we often assume that medical reports submitted by our treating physicians have all of the required information, it is critical that claimants know what the SSA is expecting to ensure that their medical records are complete and/or provide the necessary information. If you receive copies of your medical records, take the time to review them and see what types of records are being given to the SSA. Again, continued delay and/or the receiving a second denial should be no one’s objective.

Medical reports, meeting the SSA guidelines, should consist of six primary pieces:

Medical history

Clinical findings (results of ALL physical and/or mental status examinations)

Diagnoses

Laboratory findings (blood pressure, x-rays, urinalysis, CBC, etc.)

Treatment prescribed with response and prognosis; and

Physician’s statement or form providing his/her opinion as to those things a claimant remains able to do despite his/her impairment.

This statement or form should include an analysis of an individual’s ability to perform work-related activities such as sitting, standing, walking, lifting, carrying, handling objects, hearing, speaking, and traveling.

In instances where a mental impairment exists, the physician’s statement or form should describe the claimant’s ability to comprehend, carry out and remember instructions, as well as his/her ability to respond appropriately to supervision, coworkers, and work-related pressures consistent within a working environment.

Again, medical records are the cornerstone in any disability case.  Outside of the claimant’s physical presence during a hearing, medical records and the content that exist within these records are the most important factor in determining whether an individual receives disability benefits or not.

Q & A: Can I submit non-medical sources of evidence in my disability claim?

Hello and welcome to the 8th installment of my Q & A series, which is designed to cover some of the more elusive topics associated with the Social Security Disability claims process. In this post, I discuss how non-medical sources of evidence can be helpful in a disability claim.

Question:

Outside of doctors, licensed psychologists, licensed optometrists, hospitals, and clinics, are there additional evidence sources that I could submit information from that would help substantiate my disability claim?

My answer:

Yes, other additional sources may help show the extent of your impairment and how this affects your ability to function on a daily basis. Sources of this nature are as follows: previous employers, family members, pastors/rabbis, teachers, social workers, chiropractors, naturopaths, audiologists, and speech and language pathologists. Although I have not exhausted all of the possible sources for additional evidence, the above includes the more common ones.

If you are involved with or are seeing any of the above, and if they can attest to your inability to function in a work environment, then providing information from these sources would most likely aid in supporting your claim for disability. In my practice, my clients will often get employers or family members to write statements on their behalf which confirm that they are unable to work or perform even basic household duties. We will submit these signed statements as notarized affidavits to the Judge, and they will thus become part of your disability case file.  As long as they support the idea that you cannot hold down a job based on your illness(es), they will likely be helpful.

Never underestimate the value of a resource. As a rule, it is better to over submit medical documentation than to have not submitted enough. Always make sure that you have provided a list of these type resources to your attorney and/or representative. Your attorney will know the value of a particular resource. Remember, up until the end of the disability process, you are not able to meet one on one with the judge. Your medical records are your ‘voice’ per se, and they tell your story up until such time as you are afforded a hearing in your case.

Q & A: What medical sources are considered acceptable by the SSA?

Hello and welcome to the 7th installment of my Q & A series, which is designed to cover some of the more elusive topics associated with the Social Security Disability claims process. In this post, I discuss what types of medical providers are deemed as “acceptable medical sources” by the Social Security Administration.

Question:

I recently applied for SSDI, and I want to make sure that the medical records I am providing to the SSA are from “acceptable medical sources.” Can you explain in detail what the SSA views as an acceptable medical source?

My answer:

The SSA considers an “acceptable medical source” to be any licensed physician (this includes D.O.s – Doctors of Osteopathic Medicine), licensed or certified psychologists, licensed optometrists, hospitals, clinics, and other health facilities where a claimant has been treated.

Remember, as has been previously mentioned on this blog, claimants are highly encouraged to see a physician/specialist who focuses primarily on their specific impairment. In a previous post about the importance of seeking specialized medical treatment,  for example, an individual suffering from migraine headaches and blurred vision was advised to see a headache specialist or neurologist who could substantiate their claim.

While general physicians are very knowledgeable and skilled (and are deemed to be an appropriate medical source by the SSA), I typically encourage my clients to try and see a specialist whose practice concentrates primarily on their particular impairment. These specialists will have the proper credentials, testing methods, and treatment plans for you, and your seeking their help will only serve to make your claim more credible in the eyes of the SSA.

I would like to address one last question I sometimes get from people suffering from a physical impairment like back  or neck pain. Many such claimants will see a chiropractor instead of, say, a spine specialist. Not to take away from the benefits chiropractors provide, but in my experience chiropractic records are not nearly as useful in a disability claim as compared to records from orthopedic and spine specialists or even those of D.O.s. If you are seeing a chiropractor, my best advice is to also seek a diagnosis or opinion from another type of medical source, so that you will be satisfying the SSA’s “acceptable medical source” requirements.

Immigrant gets prison time for stealing from the SSA

This past November, Mohammad Husseini was sentenced to six months prison time and ordered to pay back the $111,000 he “stole” from the Social Security Administration. The behind bars59-year-old immigrant from Afghanistan, who became a U.S. citizen in 1978, had been fraudulently receiving Social Security Disability benefits since 1999.

In 1990, Husseini suffered a work-related injury and applied for and received Social Security disability payments, court documents said. Of course, as is always the case when one is approved for benefits, Husseini had to agree to notify the SSA if he again obtained employment at a later date. However, when Husseini got a job in 1999 working for Catholic Charities, he decided he’d take another route.

Instead of using his own Social Security number, he simply gave the charity organization his brother’s Social Security number. This way, his earnings would not be reported to the government, and he could thus continue receiving the Social Security Disability payments despite his work status. Husseini didn’t report his change of work status until April of 2006, after he had already fraudulently collected approximately $111,000 in disability payments.

When Husseini’s case was brought to court, prosecutors sought a swift and severe penalty for his fraudulent actions. The Judge overseeing the case apparently sided with the prosecutors, and Husseini was thus sentenced to jail time and ordered to pay back the money.

Let this be a lesson to anyone who is on disability and then returns to work. Always be sure to report your back to work status if you end up gaining employment while on Social Security Disability!

Q & A: How important is it for me to keep my Social Security file up to date with new medical records?

Hello and welcome to the 6th installment of my Q & A series, which is designed to cover some of the more elusive topics associated with the Social Security Disability claims process. In this post, I discuss the importance of keeping your disability case file up to date with new medical records as your claim progresses.

Question:

I recently applied for disability. Outside of the medical information that I provided in the initial application, how important is it that I continue to supplement my file while awaiting for a decision?

My answer:

Medical evidence is critical in determining whether an individual will receive disability or not. You, the claimant, and/or your representative are charged with the responsibility of providing medical evidence that substantiates your claim for disability and/or proves the nature and severity of your impairment. In some cases, the SSA will help claimants obtain medical reports if the claimant has given the SSA prior permission to do so.

A word of caution: in my opinion it is better for you to provide the medical records to the SSA instead of having them request them. By doing so, not only will you have proof that you provided the SSA with your most current medical records, but you will also be able to review what documents the SSA has and is evaluating. In either case, though, there are advantages and disadvantages. For example, if you or your attorney end up requesting the medical records, there may be a cost, so be prepared.

In addition to the medical records that already exist in your file, it is IMPORTANT that you continue to supplement your file EACH TIME that you visit a doctor, specialist, counselor, etc. Remember, even if you receive aupdate your medical records denial on your application, continue to supplement your record while you go through the appeals process. A good practice is always to request a copy of your medical records immediately at the conclusion of your doctor’s visit. Politely explain that you are in the process of applying for disability and that you need your medical records in order to supplement your file. Some individuals request their medical records once a month if they visit the same doctor weekly or bi-weekly. When receiving your medical records from any source, always make at least two (2) copies. This will allow your representative to have a copy to work from as well as provide you with an additional copy. By having an extra copy available, you will prevent incurring additional costs in the event that you need copies later.

If I Stop Working and File for Disability, How Do I Know that my Money Won’t Run Out Before my Case is Approved?

I have written extensively on this blog about the claim processing delays that continue to plague Social Security disability.  I suspect that there are a lot of folks out there who are suffering and struggling trying to stay at work, perhaps at the expense of their health, because they are concerned that if they stop working, they will run out of savings before their case is decided.  I recently received the following question from a gentleman named Steve who is fighting diabetes and diabetic complications and who finds himself with this quandary:

I am a 43 year old diabetic. I was diagnosed 7 years ago and progressed quickly from pills to insulin injections and have now been on an insulin pump for 3 years.  I have neuropathy in both legs, heart disease, and many other diabetic problems, because of high blood sugar.  I am at an ideal weight of 170 Lbs. and 5′ 9″ height and have always been active and try to eat healthy.   I take 40-50 units of insulin each day, but my A1C readings are still 10+. I am no longer able to perform my work assignments.  My employer (25years)had even allowed me to change to an office job but I am still not able to sit for over an hour without my legs hurting and I have had many hypo (low-sugar) episodes at work which scared everyone.  My doctor’s have suggested that I quit so that I can concentrate on this disease before it kills me, but the stories of possible delays in SSDI have really concerned me and my family.  I have enough money saved to survive for a year, but that is it.  Do you think someone like me would qualify for SSDI benefits, and what would a potential wait be?

Here are my thoughts: I think that Steve has very good reason to be concerned.  When you apply for benefits, there are two times when you are likely to be approved – at the initial application stage, which will be within four to six months after application, or at the hearing stage, which could be two to three years after application.

diabetes1Initial application approvals are almost always arise in cases that meet a listing.  Steve is a diabetic and the applicable listing is at Listing 9.08. State Agency adjudicators will approve diabetes cases on the listings but they will expect the medical records to document as many of the following complications:

  • long standing neuropathy (numbness in extremities)
  • long standing retinopathy (vision issues)
  • blood sugar readings at 200 or higher over an extended period of time despite increasing dosages of insulin
  • organ damage (documented by abnormal lab readings)
  • frequent urination
  • sexual dysfunction
  • statement or checklist from treating doctor that condition equals 9.08

In my view, you need to aggressively argue to the adjudicator that your case meets a listing – do not assume that the adjudicator will figure it out.

If your case is denied at the initial application stage, it is very unlikely that a different adjudicator will approve it at reconsideration.  Statistics I have seen suggest that no more than 10 to 15% of cases are approved at the reconsideration appeal level. Continue reading →

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