Consultative exam

Lessons learned in 2012 – Always appeal a denial if you think you have a deserving case

Geri KahnLeave a comment

For the remainder of 2012 I am going to post on what I have seen in the area of Social Security Disability law this past year both good and bad.  One of the most interesting observations I have made in both cases from San Francisco and Vallejo is that there were quite a few that should have been granted at the initial stage of application but were not.  Had my clients not appealed, they would not be receiving Social Security Disability today.

In all of the cases, the Social Security Administration sent my clients to a consultative exam performed by one of their physicians.  The Social Security Administration sends applicants to consultative exams when they feel they do not have sufficient information from the applicant’s own doctors to make a decision.  (See the regulations at 20 C.F.R. Section 404.1519a, “When we purchase a consultative examination and how we will use it.”)   In each of my cases, the physician indicated that my clients would have restrictions physically or mentally  due to their impairments.  The restrictions that they found, in these particular cases, were so restrictive that they precluded my clients from their past work or other work.  Yet, in each case, the Social Security Administration found a way to disregard their own doctor’s opinion.  This is surprising because usually Social security’s doctors find that if a person is breathing, he or she can work.  So, when a Social Security doctor finds the opposite, that a person has a lot of restrictions, you would think that Social Security would give it some more thought before denying the application.

Here is an example from a recent case.  My client is under 50, has a 10th grade education, suffers from schizophrenia, paranoid.  He also suffers from a shoulder injury which the Social Security consultative medical examiner determined would only allow him to do occasional reaching with the affected arm.  Social Security’s consultative psychologist wrote an eight page evaluation.  The length of this report is very rare coming from a doctor hired by Social Security.  The consultative psychologist found that my client would have limitations in almost everything.  For instance he indicated that my client could not perform detailed or complex work,  would have difficulties performing simple repetitive tasks, would have difficulties completing a normal work day or work week, needed help with reading, writing, and arithmetic.  The list went on.  In my client’s case, the consultative examinations helped him to document his limitations.  In fact he will win based on the findings from these examinations.  If he had not appealed, we would have not known that the consultative examinations were helpful to him in establishing his claim for disability.

The lesson I learned from this case and the lesson that I wish to pass on is always appeal if you think you have a good case, even if a lawyer does not wish to take the case.  You never know the reason why the Social Security Administration denies a case.  (The reasons listed in decision notices are not the real reasons why a case is denied.)  It is best to appeal and pursue your rights.

It only takes a gene

Geri KahnLeave a comment

DNALast week I had a Social Security disability hearing at the Office of Disability Adjudication and Review (“ODAR”) in San Rafael, California. My client suffers from a rare auto-immune disease called ankylosing spondylitis (“AS”). “AS” is a type of arthritis of the spine. It causes swelling between vertebrae and over time it can fuse vertebrae together. (You can obtain a brief description of this disease on MedlinePlus’ web page about ankylosing spondylitis.)

While preparing for my case, I learned that diagnosis of ankylosing spondylitis is done through a blood test. There is a gene, HLA-B27 which is present in the blood of approximately 95% of people who have ankylosing spondylitis. My client had the blood test taken by her treating physician and the test showed it was positive for the gene.

I wondered why then the Disability Determination Services wrote a note in the file, “Inconsistencies between reports and allegations.” I know they write that for everyone, or so it seems, but in this case, the medical diagnosiss was confirmed. Upon further review, I realized that the Social Security Administration had failed to give the consultative medical examiner all of the evidence.

Social Security will send a claimant to a consultative medical exam if they feel the claimant’s evidence provided by the claimant’s own medical sources is inadequate to determine disability. At the reconsideration stage of my client’s case, she was sent to a consultative medical exam. The Disability Determination Services provided the medical examiner with a partially completed Disability Report and back x-rays taken by her treating physician. They did not provide the doctor with the results of the blood test, dated the same date as the x-rays and included in the claimant’s file. The consultative examiner wrote in her report that she could find no evidence of ankylosing spondylitis. Well, it is not surprising. If Social Security did not provide the blood test results to the doctor, how could the doctor find it?

I do not know if my client would have succeeded at the reconsideration stage if the doctor would have been able to confirm the existence of the disease but it seems that my client never had a fighting chance to succeed without the submission of the medical evidence to the consultative examiner.

It does not make sense to me. It is expensive to pay for a consultative examination. It is even more expensive to pay for judges, clerks, and experts at ODAR. Perhaps if Social Security spent a little more time and money at the initial stages, it would not be necessary for claimants to pursue their cases to hearings in front of Administrative Law Judges.

My client’s case does have a happy ending. We succeeded at our hearing in front of the administrative law judge. While I am happy (and of course she is very happy), it is a shame it took a judge’s review of all the evidence to make the decision that could have been made a year ago.