In recent years, the Social Security Administration (SSA) has published two sets of regulations ramping up the responsibility of claimants and their representatives to develop evidence in disability claims in a timely manner. First, SSA issued the “all evidence” rule in March 2015, requiring claimants and 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 requirement includes both favorable and unfavorable evidence. These rules were summarized in the March 2015 edition of this newsletter. http://www.empirejustice.org/issue-areas/disability-benefits/rules–regulations/final-submission-of-evidence.html#.WeUnUste670.
Then, in December 2016, SSA published its “five-day” rule, mandating that any and all evidence must be submitted at least five business days before a scheduled hearing, unless the claimant can show good cause for failure to do so. In the alternative, the rule provides the claimant must inform SSA of the evidence. This rule was effective January 17, 2017, but compliance was not expected until May 2017. http://www.empirejustice.org/issue-areas/disability-benefits/rules–regulations/five-day-requirement.html#.WeUodste671.
These rules have raised a host of questions and challenges for representatives. What evidence actually relates to a claim? Must all records be submitted, even hundreds of pages documenting a hospital stay? What about duplicates? Is informing SSA of the existence of records, particularly records not especially favorable to a claim, sufficient? How are the five business days counted? Does SSA include the first and final days of the time period? Can an ALJ really exclude relevant evidence simply because it was submitted fewer than five days before a hearing, even if the claimant or representative informed the ALJ of its existence?
Rather than addressing these issues, SSA has instead issued a Social Security Ruling (SSR) that reads more like a reprimand than a clarification or elucidation. SSR 17-4p, entitled “Responsibility for Developing Written Evidence” and published on October 4, 2017, purports to clarify SSA’s “responsibilities and the responsibilities of a claimant and a claimant’s representative to develop evidence and other information in disability and blindness claims.”
While emphasizing the obligations imposed by the new regulations, the SSR also focuses on representatives’ duties under SSA’s rules of conduct and standards of responsibility for representatives. See 20 C.F.R. §§ 404.1740(b)(1) & 416.1540(b)(1). Although acknowledging the agency’s role in developing the record, it instead emphasizes the primary responsibility of claimants and appointed representatives to provide evidence – and to provide it in a timely and complete fashion as dictated by SSA. Per the SSR, claimants and representatives are expected “to exercise their reasonable good faith judgment about what evidence ‘relates’ to their disability claims.” And it adds requirements and interpretations not found in the regulations themselves.
For example, in addressing the five-day rule, the SSR provides a new definition of the “inform” option:
To satisfy the claimant’s obligation under the regulations to “inform” us about written evidence, he or she must provide information specific enough to identify the evidence (source, location, and dates of treatment) and show that the evidence relates to the individual’s medical condition, work activity, job history, medical treatment, or other issues relevant to whether or not the individual is disabled or blind.
If the claimant or representative does not provide specific enough information, SSA will not request the information, and may not consider the “inform” obligation met. This requirement will be particularly burdensome for pro se claimants. Plus, the SSR provides “it is only acceptable for a representative to inform us about evidence without submitting it if the representative shows that, despite good faith efforts, he or she could not obtain the evidence.” This new requirement places substantial new obligations on claimants and representatives not imposed by the regulation itself.
And as if the five-rule was not burdensome enough, SSR 17-4 p, relying on the representative rules of conduct, claims that five days is not really good enough. The rules of conduct require representatives to act with reasonable promptness to obtain evidence, and prohibit representatives from causing unreasonable delay in the processing of a claim without good cause. According to SSA, that requirement means representatives are expected to submit or inform SSA about written evidence as soon as they obtain it or become aware of it. Simply informing SSA of the existence of evidence without providing it, or waiting until five days to inform SSA of the evidence when it was “otherwise available” may be considered a violation of SSA’s rules of conduct and could lead to sanction proceedings against the representative.
According to the SSR, any number of actions or inactions could lead to possible sanctions:
- a representative informs us about written evidence but refuses, without good cause, to make good faith efforts to obtain and timely submit the evidence;
- a representative informs us about evidence that relates to a claim instead of acting with reasonable promptness to help obtain and timely submit the evidence to us;
- the representative waits until five days before a hearing to provide or inform us of evidence when the evidence was known to the representative or available to provide to us at an earlier date;
- the clients of a particular representative have a pattern of informing us about written evidence instead of making good-faith efforts to obtain and timely submit the evidence.
The SSR goes on to limit the circumstances in which SSA will assist with developing the record. While SSA acknowledges it has a duty to make “every reasonable effort” to help claimants obtain medical evidence, the claimant or representative will first have to demonstrate that he or she was unable to obtain the evidence despite good faith efforts.
Development of evidence at the Appeals Council is even more limited.
The National Organization of Social Security Claimants’ Representatives (NOSSCR) has written a letter to SSA, objecting to many aspects of this SSR. https://nosscr.org/sites/default/files/ssr_17-4p_letter_to_berryhill_redacted_0.pdf
Some advocates have pointed out that the SSR, while objectionable in tone and intent, does not necessarily go beyond what is already required of representatives under the rules of conduct. Others have questioned whether SSA can regulate the conduct of representative through an SSR, which does not carry the force of law like regulations do. And the ruling may conflict with the Social Security Act itself, which requires the Commissioner to develop and consider a complete medical history. See 42 U.S.C. § 423(d)(5)(B). In light of the statute, can SSA really refuse to consider relevant evidence? The SSR may thus face legal challenges depending on the extent to which SSA attempts to enforce it.
But in the meantime, how will SSR 17-4p actually affect the practices of claimants and representatives? Unfortunately, we still do not have any guidance or authority to challenge recalcitrant ALJs interpreting the definition of “five days” too narrowly. Nor do we know when we can omit submitting what appears to be extraneous or duplicative evidence. But we do know we are more than encouraged to submit evidence early and often, including submitting it as we receive it, rather than waiting to submit all the evidence together with our pre-hearing arguments. Some preliminary practice tips offered by Kevin Liebkemann from Legal Service of New Jersey:
- Inform your client in writing of the importance of informing you promptly of any new information relating to the claim.
- Meticulously document all medical sources of which your client informed you.
- Contact your client periodically while waiting for the hearing to be scheduled to see if there are any changes or new medical sources/visits/reports.
- Promptly inform SSA in writing upon receipt of any new information relating to the claim (medical treatment, work activity, etc.), and save proof of delivery. Include all the details required by SSR 17-4p.
- Promptly request copies of medical records – and save copies of requests.
- Document in writing all attempts to follow up on your record requests.
- Upon receipt of the hearing notice, promptly contact the client, get updated information on medical treatment, and send out medical record requests.
- Submit all medical records received promptly to SSA.
- If there is a good reason for not being able to obtain or submit records promptly to SSA, document the reason in writing in the file, and inform SSA. Request subpoenas if necessary.
- If you are submitting evidence within five business days of the hearing, include a letter documenting the efforts you took to obtain the evidence, and any good reasons it was not submitted earlier.
Adhering to these procedures will undoubtedly be burdensome and inefficient for advocates, resulting in endless documentation and piece-meal requests for and submission of evidence while waiting for a hearing. If despite the advocates’ best efforts, ALJs nonetheless exclude evidence citing SSR 17-4p, advocates should object, try to proffer the evidence, and argue due process violations on the record!
Please keep us informed of your experiences in the brave new world of SSR 17-4p.