Since April 15, 2015, advocates have been bound by SSA’s new rules on the submission of evidence. The new regulations, found at http://www.gpo.gov/fdsys/pkg/FR-2015-03-20/html/2015-05921.htm, were summarized in the March 2015 edition of this newsletter. (Final Submission of Evidence Rules: Everything Goes). In short, they require claimants and representatives to inform Social Security about, or submit, all evidence that relates to a claim for disability.
SSA has provided further “guidance” about the new rules in its revised HALLEX sections, which have been summarized by NOSSCR:
I-2-1-5 “Conducting Prehearing Case Analysis and Workup” is a new section with instructions to the hearing office staff on conducting prehearing case analysis and workup. This includes determining whether the claimant informed the Agency about any additional evidence not in the record and instructions on obtaining the evidence if needed.
Chapter I-2-5 has several new sections with instructions about prehearing case review:
I-2-5-2 is a new section entitled “Prehearing Case Review by the Administrative Law Judge.” In conducting a prehearing case review, the ALJ will evaluate the claim file to determine whether it is necessary to obtain evidence the claimant informed the agency about that relates to whether he or she is blind or disabled, or to obtain updated medical evidence or testimony from the claimant’s treating source or other medical source. The ALJ will also determine whether a consultative examination or medical or vocational expert testimony is needed, and whether additional non-medical evidence should be considered. The ALJ is instructed to issue a subpoena if necessary.
I-2-5-13 – “Claimant informs Hearing Office of Additional Evidence,” a new section, provides instructions for developing both medical and non-medical evidence, including the processes for hearing office staff to follow when the claimant informs the agency about additional evidence but does not submit it.
I-2-5-14 is entitled “Obtaining Medical Evidence from a Medical Source” and includes instructions on how to obtain a signed medical release form (SSA 827) and how to obtain the identified but unsubmitted evidence. The ALJ or ODAR Staff will ask the claimant or representative to identify the claimant’s medical sources and to provide all evidence that relates to the claim from those sources.
I-2-5-13 and I-2-5-14 explain that the hearing office can authorize payment for medical records requested by a claimant or representative if the claimant or representative has made a good faith effort to obtain the evidence. Examples include: “a treating source has not responded to multiple requests for evidence; an unrepresented claimant cannot afford to pay for the evidence; an unrepresented claimant has a physical, mental, educational, or linguistic limitation(s) that prevents him or her from requesting or obtaining the evidence, or is otherwise unable to obtain the evidence for reasons beyond their control; and a representative who is ineligible for compensation by a claimant, such as a legal services organization, and has no funding to pay for the evidence.” In these situations the ODAR staff will assist the claimant or representative in obtaining the evidence by paying a reasonable amount for the existing medical evidence in accordance with the payment rates established by the appropriate State agency.
I-2-6-78 “Closing the Hearing” is a revised section now stating the ALJ will remind the claimant he or she must inform the ALJ about, or submit, all evidence that relates to the claim. If a claimant has a representative, the ALJ will remind the representative he or she must do so. “The ALJ must ask the claimant and the representative if they are aware of any additional evidence that relates to whether the claimant is blind or disabled.”
I-2-7 “Posthearing Actions” contains several updated instructions for determining the need for, obtaining, and proffering additional evidence received after an ALJ hearing. Many of the identified procedures are identical to those for obtaining evidence prehearing.
I-3-2-15 “Claimants Inform the Appeals Council About Additional Evidence” is the only new section dealing specifically with the Appeals Council. This new section includes instructions to OAO Staff to follow when the claimant informs the agency about additional evidence but does not submit it. As in I-2-5-13, the claimant is instructed to inform the agency about or submit to the agency all evidence, in its entirety, known to him or her that relates to whether or not he or she is blind or disabled. A representative must help the claimant obtain the information or evidence the claimant must submit.
This HALLEX notes evidence generally does not include a representative’s analysis of the claim, or include oral or written communication between a claimant and the representative subject to the attorney client privilege (or would be if the non-attorney representative were an attorney.) This HALLEX section also warns, “If a representative has a pattern of not submitting evidence that relates to the claim(s), or if the claimants of a particular representative develop a pattern of not submitting evidence to us or not informing us about evidence that relates to their claims(s), an administrative appeals judge will consider whether circumstances warrant a referral to the Office of General Counsel as a possible violation of our rules.”
The transmittals announcing these revisions can be found at http://www.ssa.gov/OP_Home/hallex/hallex.html.
Representatives have also obtained a copy of a recent ALJ training outline on the new regulation, which is available at DAP #570.
Undoubtedly representatives will still have more questions than answers about their duties and obligations under these regulations. Are they as draconian as some think? Or will they impose few practical changes to our day-to-day practices, as others speculate? To what extent, for example, will advocates be able to avoid submitting duplicates or volumes of seemingly unrelated evidence by informing ODAR of the existence of the evidence and affirmatively asking if submission is necessary, per 20 C.F.R. §404.1512(c) (“When you submit evidence received from another source, you must submit that evidence in its entirety, unless you previously submitted the same evidence to us or we instruct you otherwise”)?
Please keep us informed of your experiences—both positive and negative—with these new regulations. And thanks to NOSSCR for its ongoing analysis of the regulations and HALLEX provisions.