Last Update: 10/9/2015 (Transmittal I-2-156)
HA 01250.024 Claimant Does Not
Attend or Refuses to Undergo a Consultative Examination or Test
Renumbered from HALLEX section I-2-5-24
If a claimant does not attend or refuses to undergo a consultative
examination (CE) or test requested by an administrative law judge
(ALJ), the Disability Determination Services (DDS) will first assess
whether the claimant had good cause for doing so using the general
principles outlined in 20 CFR 404.911 and 416.1411.
If DDS finds good cause, it will reschedule the CE or test.
However, if DDS finds the claimant does not establish good
cause, or the claimant does not attend or refuses to undergo a CE
or test in the second instance, DDS will return the request to the ALJ
along with any reason(s) the claimant provided for missing the CE
or test. The ALJ will associate any documentation from DDS with
the claim(s) file.
The ALJ will then use the general principles in 20 CFR 404.911 and 416.1411 to
determine whether the claimant had good cause for not attending
or refusing to undergo a CE or test. Depending on the circumstances,
the ALJ may need to further develop the issue. When evaluating the
issue, the ALJ will consider whether the individual has any physical,
mental, educational, or linguistic limitations (including any lack
of facility with the English language) that may have bearing on
the failure to cooperate. In addition to considering the regulatory
criteria, ALJs will also evaluate the issue using the same general
principles outlined in Social
Security Ruling (SSR) 91-5p, Policy Interpretation Ruling
Titles II and XVI: Mental Incapacity and Good Cause for Missing
the Deadline to Request Review.
If the claimant is 65 or older,
note also the general principle outlined in SSR 03-3p, Policy Interpretation
Ruling – Titles II and XVI: Evaluation of Disability and Blindness
in Initial Claims for Individuals Aged 65 or Older. SSR 03-3p states, “[s]ome
individuals aged 65 or older may not understand, or be able to comply with,
our requests to submit evidence or attend a consultative examination
(CE). Therefore, adjudicators must make special efforts in situations
in which it appears that an individual aged 65 or older may not
be cooperating.”
In unusual circumstances where
the medical record is unclear and resolution is needed to make a
finding, an ALJ may obtain an opinion from a medical expert regarding
the possible effect of an impairment on the failure to attend or
undergo a CE or test.
If the ALJ determines the claimant had good cause for not
attending or refusing to undergo the CE or test (and the claimant
does not oppose attending or undergoing a CE or test), the ALJ will request
that DDS schedule another CE or test as soon as possible. However,
if the claimant cannot establish good cause for not attending or
refusing to undergo a CE or test, the ALJ will:
•
Exhibit any documents
associated with the good cause decision;
•
Proffer documents exhibited posthearing to the claimant
and representative, if any (see Hearings, Appeals and Litigation
Law (HALLEX) manual HA 01270.001);
and
There is no authority for an ALJ
to dismiss a request for hearing based on the claimant's failure
to attend or refusal to undergo a CE or test. However, if the claimant
fails to appear at the time and place of the hearing after the ALJ
gave proper notice, see 20 CFR 404.957 and 416.1457.
See also HALLEX HA 01240.025.