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Does Your ALJ have to order a Consultative Exam?

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Will there be a consultative exam ordered at your Social Security disability hearing? In Diaz situations where an additional examination will likely be necessary for your Social Security disability hearing, the 10th Circuit determined that Administrative Law Judges (ALJ) have broad discretion in deciding whether to order a consultative examination (CE).

The Court's holding

"Nevertheless, it is clear that, where there is a direct conflict in the medical evidence requiring resolution, see 20 C.F.R. § 404.1519a(b)(4), or where the medical evidence in the record is inconclusive, see Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir.1993), a consultative examination is often required for proper resolution of a disability claim. Similarly, where additional tests are required to explain a diagnosis already contained in the record, resort to a consultative examination may be necessary."

Considerations

The Court may consider these factors when ordering a CE:

  1. The additional evidence needed is not contained in the records of your medical sources;

  2.  The evidence that may have been available from your treating or other medical sources cannot be obtained for reasons beyond your control, such as death or noncooperation of a medical source;

  3. Highly technical or specialized medical evidence that we need is not available from your treating or other medical sources;

  4. A conflict, inconsistency, ambiguity or insufficiency in the evidence must be resolved, as we are unable to do so by re-contacting your medical source; or

  5. There is an indication of a change in your condition that is likely to affect your ability to work, but the current severity of your impairment is not established.

See also 20 C.F.R. § 416.919a; Standards for Consultative Examinations and Existing Medical Evidence, 56 Fed.Reg. 36,932, 36,941 (1991).

Consulting with your attorney is a good idea if you believe another examination might help you win at your Social Security disability hearing. Good exams often fill holes in the record and lead to good results. However, rushed exams or exams where the examiner is given an incomplete picture can do more harm than good. This is one of many reasons having an experienced attorney by your side is useful. Have frank discussions with your lawyer and as often as possible, involve your own doctor in the process. He or she is in the best position to offer the Social Security Administration an opinion on your ability to perform work.

Contact us today to learn more about how we can help ensure you receive the benefits you are entitled to. Please call (303) 534-1958 or complete a contact form on our

 

About the AuthorJoe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.

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