On September 19, 2019, SSA issued POMS DI 20503.003 regarding duplicate evidence. The POMS were effective upon the transmission date.
Disability advocates, including NOSSCR, had emphasized to SSA that the agency needed to better define the term “duplicate” to assist claimants and representatives in determining what information needed to be submitted. In addition, with SSA planning to deploy “de-duplication” software that would flag duplicate evidence, it is important that the programmers have a good idea of what evidence would qualify as a duplicate. For example, if a hospital discharge summary appears both in hospital records and in a primary care provider’s records, it should not be flagged as a duplicate or removed from the file because “familiarity with the file as a whole” is one of the factors SSA uses to weigh the opinions of medical sources. Knowing that the primary care provider was aware of the hospitalization helps SSA adjudicators to give the primary care provider’s opinion due weight.
Before the new POMS was issued, SSA only defined duplicative evidence in the prefatory matter to its final rule on submission of evidence in disability claims (80 Fed. Reg. 14828, March 20, 2015), often called the “all-evidence rule.” It said duplicative evidence was “an exact duplicate of a document in the record, and not simply the substance of what is in the record.”
The new POMS define duplicate evidence as “any material that is submitted by the same medical or non-medical source and is an exact copy of evidence already in the record. By exact copy, we mean an accurate reproduction of the original evidence by a mechanical, photographic, electronic, or other equivalent process or technique that does not result in substantive differences due to reproduction, pagination, or transmission (e.g., page number, electronically placed headers, and format).” The examples of duplicate evidence provided in the POMS are:
- An exact copy of evidence previously submitted by a source that is submitted again by the same source, but has different pagination or fax information, such as a cover or transmittal page.
- An exact copy of evidence previously submitted by the same medical source, with new, but non-substantive marks, such as stains, blots, holes or tears.
- An exact copy of clinical or laboratory test results or radiology reports (e.g., blood tests or x-rays) previously submitted by the same medical source, resubmitted with new, more recent treatment notes. In this example, the laboratory test results or radiology reports would be duplicate evidence, but the new treatment notes would be non-duplicate evidence.
- An exact copy of evidence by the same source previously received through an electronic health exchange, but the subsequent submission has different pagination, formatting, or headers for routing.
Evidence is not a duplicate when it is “Similar in substance, but not an exact copy; Distinct in substance and format from other evidence in the record; or Submitted by a different medical or non-medical source.” The examples of non-duplicate evidence provided in the new POMS are:
- Sets of laboratory test results marked, for example, as “initial” and “final” or “final-verified.”
- An exact copy of medical records (e.g., blood tests, x-rays, physical examinations) submitted by different medical sources, clinics, facilities, or centers.
- An exact copy of previously submitted evidence, but with the addition of a handwritten treatment note.
- Evidence resubmitted by a different source with a cover page (e.g., by an appointed representative to list evidence, make disclosures pursuant to 20 C.F.R. §§404.1740(b)(5) and 416.1540(b)(5), or provide updates or clarifications to previously-submitted evidence or information).
The new POMS require duplicate evidence to have been submitted by “the same” source. 20 C.F.R. § 404.1502 defines a medical source as “an individual who is licensed as a healthcare worker by a State and working within the scope of practice permitted under State or Federal law, or an individual who is certified by a State as a speech-language pathologist or a school psychologist and acting within the scope of practice permitted under State or Federal law.” The same section defines nonmedical sources as “a source of evidence who is not a medical source. This includes, but is not limited to: (1) You [the claimant]; (2) Educational personnel (for example, school teachers, counselors, early intervention team members, developmental center workers, and daycare center workers); (3) Public and private social welfare agency personnel; and (4) Family members, caregivers, friends, neighbors, employers, and clergy.” Representatives are different from these categories in many ways, and typically gather rather than generate evidence, but they are not explicitly excluded from being a source.
In the event that representatives do submit evidence that already exists in the file, however, the new POMS suggest it should not be considered a duplicate: “When one source submits an exact copy of evidence from another source that is already in the record, the evidence is non-duplicate evidence.”
The new POMS also introduces a third category of evidence: composite evidence, defined as “duplicate and non-duplicate evidence together in the same submission (e.g., when a medical source submits exact copies of records that the source previously submitted and includes new records from a subsequent visit).” In this scenario, “the new records from the subsequent visit are non-duplicate evidence, but the exact copies of records that were previously submitted are duplicate evidence…. When possible, we will retain only the non-duplicate evidence. If it is not possible to separate the duplicate evidence from the non-duplicate evidence, we retain the submission in its entirety.”
The new POMS ends with a note that “Field Office technicians will continue to accept submitted evidence and store it in the Disability Folder for further review and determination.”
Thanks to NOSSCR for this analysis of the new POMS and its continuing monitoring of SSA’s efforts to flesh out its policies on duplicate evidence and its procurement process for de-duplicating software.