I-2-5-24.Claimant Does Not Attend or Refuses to Undergo a Consultative Examination or Test

Last Update: 10/9/15 (Transmittal I-2-156)

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.

NOTE 1:

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.”

NOTE 2:

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 I-2-7-1); and
Issue a decision based on the available evidence. For authority, see 20 CFR 404.1516, 404.1518, 404.1579(e)(2), 416.916, 416.918, and 416.994(b)(3)(iv)(D)(4)(ii)

NOTE 3:

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 I-2-4-25.