Final Submission of Evidence Rules: Everything Goes

Empire Justice March 31, 2015

SSA’s long awaited final rules on submission of evidence in disability claims were issued on March 20, 2015, so fasten your seatbelts because it is going to be bumpy going forward. Although SSA received 85 comments on the proposed rules issued in February 2014, the agency was not moved to adopt any of the suggested changes. SSA did discuss some comments before refusing to adopt them. This discussion is found in the preamble to the actual regulations at 80 Fed. Reg. 14828 (Mar. 20, 2015), available at http://www.gpo.gov/fdsys/pkg/FR-2015-03-20/html/2015-05921.htm. The final rules are effective on April 20, 2015.

We summarized the proposed rules for you in the March 2014 Disability Law News, and are sorry to say not much has changed in the final regulations: SSA expects claimants and their representatives to inform the agency about or submit “all evidence known to you that relates to your disability claim,” including “all evidence received from any source in its entirety.” Representatives are required to “help obtain the information or evidence” that must be submitted. SSA specifically noted this includes both favorable and unfavorable evidence. Did we say that includes any and all evidence?

SSA clarified that evidence that “relates” to a disability claim, as used in 20 C.F.R. §§ 404.1512(a) and 416.912(a), refers to the ordinary meaning of “relates,” which is “to show or establish a logical or causal connection between two things.”  Look that up in your Funk and Wagnalls. SSA disagreed with commenters who thought the word was too vague.

SSA does allow two exceptions to this all-encompassing evidence submission rule for certain privileged communications and attorney work product. The exceptions also apply to non-attorney representatives. 20 C.F.R. §§ 404.1512(b)(2) and 416.912(b)(2).

SSA provided some examples of work product in the comments:  “if a claimant’s medical source sends his or her representative medical records or a written opinion about the claimant’s medical condition, the representative cannot withhold those records or that opinion based on the work product doctrine adopted under these rules.” But “representatives may still protect from disclosure their consultation with any medical source about the claimant’s medical condition….if a representative takes notes during a discussion with a claimant’s medical source, those notes are protected from disclosure as work product.”

In addition to requiring a claimant to inform SSA about or submit evidence as described above, the final rules were modified to clarify a claimant’s responsibility to submit evidence “received” from another source in its entirety.  The final rule was further modified to eliminate the “entirety” rule if the same evidence had previously been submitted and would result in duplication in the record, or if SSA instructs the claimant otherwise. 20 C.F.R. §§ 404.1512(c) and 416.912(c).

SSA also clarified that while representatives must submit all evidence “received,” they do not necessarily have to request all evidence.  SSA’s response to comments reiterates the agency’s duty to develop the file.  SSA’s response states “if claimants or their representatives request only the discharge summary from a hospital chart, we require them to submit only what they receive in response to that request in its entirety. We would not require them to request and pay for all of the other records from that hospitalization.”  The claimant or representative must inform SSA, however, of all evidence—presumably by listing the source of the evidence on various SSA forms and questionnaires.  SSA’s response to comments also notes medical records for an individual other than the claimant, sent accidentally by a treating source, are not considered relevant.

Some questions linger as to SSA’s enforcement mechanism for violations of these rules.  SSA has the authority under the Social Security Protection Act of 2004 (SSPA) to impose a civil monetary penalty on claimants who fail disclose information to the agency. These final rules do not, however, broaden or otherwise change this authority.

While these final broad rules appear to eliminate the question of whether or not unfavorable evidence must be submitted in Social Security disability cases, advocates will no doubt continue to explore the nuances of the regulations as part of their obligation to zealously represent their clients.  Stay tuned to future issues of this newsletter for more details on how the evidence submission regulations are being implemented in your local ODAR.