Last Update: 9/28/05 (Transmittal I-2-68)
If a claimant fails or refuses to submit requested evidence or to undergo a requested CE or test, the ALJ or HO staff will take the actions described in subsection A., B., C. or D. below, as appropriate to determine if the claimant has a good reason for the failure. In making this determination, it may be necessary to determine whether the individual has a mental disorder.
If the claimant in an initial entitlement case does not have a good reason for failing or refusing to submit requested evidence or to undergo a requested CE or test, the ALJ will issue a decision based on the available evidence, and may find (at the appropriate step of the sequential evaluation process) that the claimant is not disabled or blind. (20 CFR §§ 404.1516, 404.1518, 416.916 and 416.918.)
Example:
The claimant is not working and fails or refuses, without a good reason, to undergo a requested CE or test. If the available evidence does not establish that the claimant's impairments significantly limit his or her ability to do basic work activities and after a properly noticed hearing, a denial under the second step of the sequential evaluation process (i.e., no severe impairment) would be appropriate.
NOTE:
It is never proper to dismiss a claimant's RH for failure to provide requested evidence or to undergo a requested CE. The ALJ should schedule the case for hearing and if after notice of hearing, the claimant fails to appear for the hearing, then dismissal may be proper under I-2-4-25. (20 CFR §§ 404.957 and 416.1457.)
If the claimant in a continuing disability review case does not have a good reason for failing or refusing to submit requested evidence or to undergo a requested CE or test, the ALJ may determine that the claimant's disability or blindness has ceased because of the failure or refusal. (20 CFR §§ 404.1518, 404.1579(e)(2), 416.918, and 416.979(e)(2).)
If a claimant fails or refuses to submit requested evidence, the ALJ or HO staff will determine the claimant's reason(s). This can be done before the hearing by telephone, fax or written correspondence, or at the hearing. If the ALJ determines that the claimant has established good cause for such failure to submit evidence, the ALJ or HO staff will attempt to obtain the evidence by other means if the ALJ has determined that the evidence is material and relevant. The ALJ or HO shall document the efforts to obtain the evidence and mark such documentation as an exhibit. If the claimant does not have a good reason for failing to submit requested evidence, the ALJ should consider whether he or she has a mental impairment that may have affected his or her ability to comply with the request (see Section C below). If the claimant does not have a good reason and does not have such a mental impairment, the ALJ or HO staff will:
if the claimant submitted his or her reasons before a hearing via telephone, prepare a report of contact (RC) to document the claimant's reason(s), unless the reason(s) is already documented in the record;
mark the RC as an exhibit, add the RC to the list of exhibits, and give the claimant and the representative an opportunity to review the RC and the other proposed exhibits (see I-2-5-28 C., Disclosure of New Evidence Before the Hearing, and I-2-5-28 D., Disclosure of New Evidence After the Hearing);
if the claimant submitted his or her reasons by fax, mark the Cover Sheet, communication and proof of transmission as an exhibit. The response from the claimant or representative should also be marked as an exhibit.
if the claimant submitted his or her reasons by written communication, mark the communication as an exhibit. The response from the claimant or representative should also be marked as an exhibit.
proceed with scheduling the hearing in order to issue a decision based on the available evidence; and
include in the decision a statement about the effect (if any) of the claimant's failure or refusal to submit requested evidence on the decision.
NOTE:
See I-2-5-24 E. for reasons that may constitute good cause.
If a claimant fails or refuses to undergo a scheduled CE or test, the State agency will determine the claimant's reason(s). In doing so, the State agency will consider whether the claimant has a mental impairment that may have affected his or her ability to comply with the request (see Section C. below).
If the State agency determines that the claimant established good cause for failing or refusing to undergo the CE or test, they will reschedule the CE or test if the claimant is able and willing to undergo the CE or test.
If the claimant fails or refuses to undergo the second scheduled CE or test, the State agency will return the ALJ's request to the HO, along with a report of the reason(s) the claimant gave (if any) for failing or refusing to undergo the second CE or test.
If the State agency determines that the claimant did not have good cause for failing or refusing to undergo the CE or test, they will return the ALJ's request to the HO, along with a report of the reason(s) the claimant gave (if any) for failing or refusing to undergo the CE or test.
In either of the above situations, if the ALJ later determines that the claimant had good cause for failing or refusing to undergo the CE or test, the ALJ or HO staff will request the State agency to schedule another CE or test as soon as possible provided the claimant is able and willing to undergo the CE or test.
If the ALJ determines that the claimant did not have good cause for failing or refusing to undergo the CE or test, the ALJ will proceed with the actions necessary to issue a decision based on the available evidence, as described above in subsection A.
NOTE:
See I-2-5-24.E. for reasons that may constitute good cause.
If a claimant with an apparent mental impairment fails or refuses to submit requested evidence or undergo a requested CE or test, the ALJ must consider the effect of the mental impairment when determining whether the claimant had good cause. The ALJ or HO staff will proceed with the actions described above in subsection A., or subsection B., as appropriate. In addition, the ALJ or HO staff will:
if the claimant does not have a representative, remind the claimant of the right to representation;
if the claimant has a representative, ensure that the representative is aware of the claimant's failure or refusal, and of the importance of the claimant's cooperation;
obtain the needed evidence from other sources, if possible.
NOTE:
The ALJ may ask an ME to review the evidence in the record and provide an opinion regarding the possible effect of the claimant's mental impairment on his or her failure to provide requested evidence or undergo a requested CE or test. (See I-2-5-32, Medical Experts — General.)
NOTE:
See I-2-5-24.E. for reasons that may constitute good cause.
If a claimant fails or refuses to submit requested evidence or to undergo a CE or test in a CDR case, the ALJ or the HO staff will proceed with the actions described above in subsections A., B. or C., as appropriate. If the ALJ determines that the claimant did not have good cause for such failure or refusal, he or she may find that the claimant's disability or blindness has ceased because of the claimant's failure to cooperate.
NOTE:
See I-2-5-24.E. for reasons that may constitute good cause.
When determining whether a claimant has established good cause for failing or refusing to submit requested evidence or to undergo a requested CE or test, the ALJ should consider the guidelines in 20 CFR §§ 404.911 and 416.1411, which apply when determining whether a claimant has shown “good cause” for missing a deadline to request review. Examples of circumstances where a good reason may exist include, but are not limited to, the following:
The claimant was seriously ill and unable to comply with the request.
There was a death or serious illness in the claimant's immediate family which prevented him or her from complying with the request.
The claimant did not receive the request to submit evidence or appear for a CE or test, or the claimant received the request untimely.
The request to submit evidence or appear for a CE or test contained incorrect or incomplete information about when and where to submit the evidence or appear for the CE or test.
The evidence requested is not available due to destruction or damage.
The claimant did not understand the requirement to provide the requested information.
The claimant lacked the financial ability/means to obtain the evidence requested.
NOTE: See SSR 91-5p for evaluation of the impact of claimant's mental impairments on the ability to dismiss a RH which is equally applicable in these situations.
NOTE:
The term “good cause” refers to a reasonable explanation for failing to comply with a requirement. When making a finding of good cause, the finding must be based on the circumstances of each individual case. Consider the person's physical, mental, education, or linguistic limitations (including any lack of facility with the English language or the claimant's inability to read) that prevented the claimant from complying.
If an ALJ finds that a claimant did not have good cause for failing to submit requested evidence or undergo a requested CE or test, he or she will mark the RCs and other documents which support that finding as proposed exhibits, and give the claimant and the representative (if any) an opportunity to review and comment on the proposed exhibits. (See I-2-5-28 C., Disclosure of New Evidence Before the Hearing, and I-2-5-28 D., Disclosure of New Evidence After the Hearing.)