The Social Security Administration (SSA) is proposing to “clarify” its regulations to require claimants to inform the agency about or submit all evidence known to them that relates to their disability claims. This obligation would extend, by reference, to a claimant’s representative, subject to exceptions for certain privileged communications. 79 Fed. Reg. 9663 (Feb. 20, 2014). http://www.gpo.gov/fdsys/pkg/FR-2014-02-20/pdf/2014-03426.pdf
SSA relies heavily on a report from the Administrative Conference of the United States (ACUS) that addressed the “duty of candor” at the agency. http://www.acus.gov/sites/default/files/documents/ACUS_Final_Report_SSA_Duty_of_Candor.pdf. The ACUS report provides a detailed discussion of current SSA regulations and statutory requirements regarding submission of evidence. ACUS also looked at State Bar rules, and determined that the general rule is that an attorney may, perhaps must, comply with a validly promulgated regulation requiring disclosure of adverse information that does not invade a privilege. And so, SSA’s proposed regulations came into being.
The proposed regulations contain a new duty on the part of claimants to submit evidence. Proposed 20 C.F.R. §§ 404.1512(a) and 416.912(a), tell claimants: “You must inform us about or submit all evidence known to you that relates to whether or not you are blind or disabled.” Note that the requirement is to “inform” SSA about or “submit all evidence”… According to the proposed changes, SSA asserts that it is not shifting its responsibility for developing the record to the claimant.
In addition to requiring a claimant to inform SSA about or submit evidence as described above, the new rules would change a claimant’s responsibility: “When you submit evidence from another source, you must submit that evidence in its entirety.” 20 C.F.R. §§ 404.1512(c) and 416.912(c). This would change the requirement in the current regulation that evidence must be submitted “without redaction.”
Representatives’ responsibilities would also change under the proposed rules. Under proposed 20 C.F.R. § 404.1740(b)(1), a representative must act with reasonable promptness “to help obtain” information or evidence a claimant must submit. The proposal sets forth two exceptions to the duty to submit: attorney-client privilege, and the attorney work product doctrine. 20 C.F.R. §§ 404.1512(b)(2) and 416.912(b)(2). The exceptions also apply to non-attorney representatives.
Clearly, the proposed regulations raise a number of concerns and issues to address in comments, which are due by April 21, 2014. The Empire Justice Center and Legal Services NYC will be submitting comments. Please consider reading the proposed rules carefully and drafting your own comments, or let us know what you might like included in our comments.