Can a Disability Examiner or Judge make a Social Security Approval with Old Medical Records?

A decision-maker on a disability claim (who, depending on the level of the claim, can be a disability examiner, or an administrative law judge) will find it very difficult to qualify a person for disability, either Social Security Disability or SSI disability--if the only thing in the file is older medical records. In fact, in most cases, it will simply be impossible.

Why is this the case? Because social security has two goals when medical evidence is evaluated. The first goal is to determine if the claimant is disabled in the here and now. This is absolutely necessary if continuing monthly benefits are to be awarded.

The second goal is to determine just how far back in time that the individual is actually to be considered disabled. Establishing the earliest onset possible (known as the EOD, which stands for established date of onset) is for the benefit of the claimant since this will determine A) how much the person receives in disability back pay and B) when they will be eligible to receive coverage under the medicare program.

Note: medicare coverage only applies to SSDI, or Social Security Disability insurance, while recipients SSI disability may receive medical coverage under the medicaid program in a given state of residence.

If a person applies for disability but has not been seen by a medical provider for their condition, or conditions, for more than ninety days, then they will not have what is considered to be "recent documentation" in their medical treatment history. And this will mean that a disability examiner or social security judge (an ALJ, which stands for administrative law judge) will need to send them to an independent examination called a CE, or consultative examination.

A CE can provide recent documentation that will allow a decision to be made on a disability case. However, in most cases the information obtained from a CE will not be enough to get a disablity case approved.

This is because consultative exams are performed by doctors that have no history of providing treatment to the claimant, and who usually know nothing about the claimant when the claimant shows up for the exam.

In the case of physical consultative exams, the examination is usually 10 to 20 minutes long and is little more than the most basic type of physical. A mental consultative examination is more substantial since it may involve a full psychiatric evaluation, or memory testing (for memory impairment) or IQ testing. However, again, the psychiatrist or psychologist performing the testing has no established history with the claimant.

Why is an established history of providing treatment important? Because the social security administration assigns weight to the opinion of a treating physician, a doctor who has a history of providing treatment. Because a treating physician has a history of providing treatment, their opinion is considered to be valid when it comes to pronouncing what the claimant's functional limitations are, and what the outlook for the physical or mental condition might be.

Obviously, the doctor who conducts a consultative examination for the social security administration can never be considered a treating physician unless the claimant insists that their own doctor be allowed to perform the consultative examination.

Are you allowed to have your own doctor conduct the CE? Yes, this is allowed. However, as a disability examiner, I never saw this done, quite probably because claimants are never told that they have this right.

By all means, if you are filing for disability, enhance your chances of qualifying for disability by getting regular treatment for your condition or conditions so that you are not placed in the position of having to go to a consultative exam (but if you are scheduled for one, you must go or run the risk of being denied for a "failure to cooperate").

But..if you are told that you must go to a CE, contact the disability examiner and request that your own doctor be allowed to perform the exam so that you can get the full benefit of having your own treating physician deliver an opinion that will potentially carry the most weight under the guidelines and disability criteria of the social security administration.

About the Author: Tim Moore is a former Social Security Disability Examiner in North Carolina, has been interviewed by the NY Times and the LA Times on the disability system, and is an Accredited Disability Representative (ADR) in North Carolina. For assistance on a disability application or Appeal in NC, click here.

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