Sunday, July 05, 2015

Final Regulations Issued on Submission of Adverse Evidence

From NOSSCR

(Edited to provide links and to correct a citation.)


Final Regulations Issued on Submission of Adverse Evidence  

On Friday, March 20, 2015, SSA published the final rules on the submission of adverse evidence in disability claims. The final regulations are available at 80 Fed. Reg. 14828 (Mar. 20, 2015), with a pdf version at http://www.gpo.gov/fdsys/pkg/FR-2015-03-20/pdf/2015-05921.pdf The final rules amend both the regulations on “Evidence of your impairment” (20 C.F.R. §§ 404.1512 and 416.912 and the “Rules of Conduct and standards of responsibility for representatives” (20 C.F.R. §§ 404.1740 and 416.1540). They go into effect on April 20, 2015. NOSSCR will provide a more complete analysis of the new rules in the March 2015 issue of the NOSSCR Forum.  

 

Despite many concerns raised by NOSSCR and many others about the February 2014 proposed regulations, few changes were made in the final version, although some concerns were addressed in the comments section of the final rule. The new regulations require claimants to “inform us [SSA] about or submit all evidence known to you that relates to whether or not you are blind or disabled,” with two exceptions: (1) material subject to the attorney-client privilege, and (2) the representative’s “analysis of the claim,” a narrow version of the attorney work product doctrine. Both favorable and unfavorable evidence must be submitted. While the duty to inform or submit evidence is on the claimant, the new rule imposes a specific duty on representatives to “act with reasonable promptness to help obtain the information or evidence that the claimant must submit under our regulations.”  

 

While NOSSCR’s comments argued that the proposed rule placed attorneys in potential conflict with State Bar rules, the final rule states that the duty to inform or submit “all evidence” does not pose a problem. Agreeing with the recommendation by the Administrative Conference of the United States, the final rule states that, under the Supremacy Clause, a validly promulgated regulation can impose a duty to disclose.  

 

How can a claimant “inform” SSA about evidence? If the claimant or representative has evidence that is relevant and does not fall into any exceptions, it must be submitted. If the evidence is not in the claimant or representative’s possession, the new regulations state that claimants could satisfy their obligation to inform SSA by providing the information on the disability and appeals forms required for the application or appeal. However, if the claimant becomes “aware of additional related evidence” at any point while the case is being determined, he or she must submit this new evidence as well.  

 

What “evidence” must be submitted? As discussed above, the claimant and representative must inform SSA about “all evidence.” Claimants and representatives must submit everything “relevant” they receive. However, claimants and representatives do not need to request “all evidence.” SSA’s response to comments reiterates the agency’s duty to develop the file. SSA’s response also states that “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.” SSA’s response to comments also notes that medical records for an individual other than the claimant, sent accidentally by a treating source, are not considered relevant.  

 

SSA’s response to comments also address concerns that the new rule would deluge SSA with duplicative evidence. In 20 CFR 404.1512(c) and 416.912(c), the new regulations provide two exceptions to the rule that “evidence from another source must be submitted in its entirety.” First, evidence should not be submitted if an exact duplicate of the document is already in the file. Second, duplicative evidence need not be submitted if an SSA adjudicator directs the claimant or representative not to submit it.  

 

What about opinions from medical providers? In addition to requesting extant medical records, representatives often ask medical providers to write letters or complete questionnaires about a claimant’s impairments. SSA’s response to comments explain that “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.”  

 

The proposed rule is available at 79 Fed. Reg. 9663 (Feb. 20, 2014). NOSSCR’s comments to the proposed rulemaking are available at http://nosscr.org/sites/default/files/NOSSCR%20comments%20evidence%20NPRM%204-21-14%20FINAL_0.pdf.  

 

 

Browning v. Colvin, -- F.3d --, No. 13-3836 (7th Cir. Sept. 4, 2014)

 

The Seventh Circuit (Judge Posner) published another very helpful pro-claimant case this week.

Browning v. Colvin, -- F.3d --, No. 13-3836 (7th Cir. Sept. 4, 2014)  http://tinyurl.com/Posner-vocational

Browning explains in part:

There is more that is wrong with the administrative law judge’s assessment of the jobs that the plaintiff might be able to fill. Remember that “hand packer” comes first in the vocational expert’s list, and in the administrative law judge’s list as well (for he appears to have relied on the vocational expert’s advice), of jobs the plaintiff can fill. The vocational expert did not describe the job of a “hand packer”; she merely cited to a section of the Dictionary of Occupational Titles, a compendium of job descriptions published by the Department of Labor. But the section she cited to, DOT 920.687-030, is not captioned “hand packer,” but “hand bander (tobacco)”—a worker who wraps cigars. Nevertheless the administrative law judge cited the same section in concluding that the plaintiff has the residual functional capacity to be a hand packer. For all we know, the plaintiff could wrap cigars, but needless to say the vocational expert did not indicate how many tobacco hand bander jobs exist in the area, region, or nation.

There is no occupational title “hand packer.” The closest is “hand packager.” U.S. Department of Labor, Dictionary of Occupational Titles, § 920.587-018 (4th ed. 1991). We set forth its description in full in the appendix. It is apparent from the description that many of the jobs are beyond the plaintiff’s capacity to do. And there is no indication that the administrative law judge, or for that matter the vocational expert, was even aware of the DOT’s hand-packager description.

A further problem is that the job descriptions used by the Social Security Administration come from a 23-year-old edition of the Dictionary of Occupational Titles, which is no longer published, and mainly moreover from information from 1977—37 years ago. No doubt many of the jobs have changed and some have disappeared. We have no idea how vocational experts and administrative law judges deal with this problem. We also have no idea what the source or accuracy of the number of jobs that vocational experts (including the one in this case, whose estimates the administrative law judge accepted without comment) claim the plaintiff could perform that exist in the plaintiff’s area, the region, or the nation. There is no official source of number of jobs for each job classification in the Dictionary of Occupational Titles, and while there are unofficial estimates of jobs in some categories, the vocational experts do not in general, and the vocational expert in this case did not, indicate what those data sources are or vouch for their accuracy. And many of them estimate the number of jobs of a type the applicant for benefits can perform by the unacceptably crude method of dividing the number of jobs in some large category (which may be the only available data) by the number of job classifications in the category, even though there is no basis for assuming that there are, for example, as many mophead trimmer-and-wrappers, DOT 789.687-106, as there are fish-egg packers, DOT 529.687-086, or poultry-dressing workers, DOT 525.687-082—all being hand-packager jobs.

Most serious, perhaps, as far as we’re able to ascertain there are no credible statistics of the number of jobs doable in each job category by claimants like the plaintiff in this case who have “limitations,” in her case mental retardation, obesity, and the residual effects of her childhood disease of the leg. The vocational expert’s statistics were for all jobs in categories in which some jobs, but clearly not all, might be within the plaintiff’s capacity to perform. For useful discussions of these and other problems encountered in trying to estimate the number of jobs in area, region, and nation that applicants for benefits can perform, see, e.g., Peter Lemoine, “Crisis of Confidence: The Inadequacies of Vocational Evidence Presented at Social Security Disability Hearings,” 2012, www.lemoinelawfirm.com/wp-content/uploads/2012/seminar_materials.pdf; Nathaniel Hubley, “The Untouchables: Why a Vocational Expert’s Testimony in Social Security Hearings Cannot Be Touched,” 43 Valparaiso Valparaiso Law Review 242 (2008), and references cited in these articles.



"Richard Posner at Harvard University" by chensiyuan - chensiyuan. Licensed under Creative Commons Attribution-Share Alike 3.0-2.5-2.0-1.0 via Wikimedia Commons - https://commons.wikimedia.org/wiki/File:Richard_Posner_at_Harvard_University.jpg#mediaviewer/File:Richard_Posner_at_Harvard_University.jpgLink to Lemoine: http://www.lemoinelawfirm.com/wp-content/uploads/2012/seminar_materials.pdf

Hubley Law Note: http://ssaconnect.com/tfiles/LawReviewHubley.pdf

Lemoine and Hubley heavily relied (with citations) to my book, Social Security Disability Advocate’s Handbook,
http://jamespublishing.com/shop/social-security-disability-advocates-handbook/

It was wonderful to see the ideas from my book and those from my friend Attorney Bob Angermeier flowing from Judge Posner's pen.

Other important issues addressed with considerable bite in Browning include the ALJ's playing doctor, unfounded presumptions about mental retardation, boilerplate credibility determinations that invert the credibility process, faulty ALJ logic, physical and mental RFC, obesity, and whether ability to get to work is a factor to be considered when evaluating step five.

The decision is another broadside at SSA, and as such, it should be used with care.  For example, the mental retardation listing does not say what Judge Posner says it says.  Proceed with care when you use Judge Posner's discussion of sarcasm and Chimpanzees. 

In any event, it is another in an unbroken string of published 7th circuit cases in 2014 blasting the SSA.

 

Finally, some hope for our Veterans

 

I promised not to change the front page of this blog until there was some action on the VA mess (long before the "Scandal" broke.)  Now there is hope.  

My additional sugggestion:  Grant every veteran Medicare and Medicaid upon discharge from the military.

 

"Sens. Bernie Sanders and John McCain have struck a deal on legislation to reform the Department of Veterans Affairs to expand veterans’ access to health care and make it easier to fire VA officials for misconduct.

The compromise measure, announced Thursday on the Senate floor, includes pieces of three VA bills that have been introduced in the Senate."

 

Bernie Sanders, John McCain strike VA deal - Jeremy Herb - POLITICO.com http://www.politico.com/story/2014/06/bernie-sanders-john-mccain-va-deal-107491.html

 

Use the Power of Science

If you practice law, use the power of science.  This wonderful quote from deGrasse Tyson describing the scientific method should lead you on the way.

To make this journey we'll need imagination, but imagination alone is not enough because the reality of nature is far more wondrous than anything we can imagine. This adventure is made possible by generations of searchers strictly adhering to a simple set of rules. Test ideas by experiment and observation, build on those ideas that pass the test, reject the ones that fail. Follow the evidence wherever it leads and question everything. Accept these terms, and the cosmos is yours.

Cosmos relaunches with Neil deGrasse Tyson http://hplusmagazine.com/2014/03/10/nerdvana-cosmos-relaunches-with-neil-degrasse-tyson/

 

Epidemic of Veteran Suicides is a National Shame

 Over 1,892 Veterans killed themselves so far this year.

Flag funeral"WASHINGTON — Volunteers in dark green hooded sweatshirts spread out across the National Mall on Thursday, planting 1,892 small American flags in the grass between the Washington Monument and the Capitol. Each flag represented a veteran who had committed suicide since Jan. 1, a figure that amounts to 22 deaths each day.

Civilians stood among the waving flags in solidarity with veterans like Michael Blazer, a former sergeant in the Army who had a friend commit suicide when he got back from Afghanistan.

“He shot himself in the same room as me and a friend of mine,” Mr. Blazer said. “I’ve been diagnosed with PTSD because of that, so a lot of these issues are what I’ve personally been dealing with. But above and beyond, I’m out here in memory of him.”

The event was part of an awareness campaign mounted by members of Iraq and Afghanistan Veterans of America, an advocacy group focused on issues affecting the nation’s newest veterans. They are in Washington this week as part of their leadership development program, Storm the Hill, and to support the introduction of legislation aimed at preventing suicides and providing more mental health resources for service members home from combat.

Event organizers said that the issues were a top priority for veterans and their families, and that they wanted to make them a priority for Congress, too.

Senator John Walsh, Democrat of Montana and the first Iraq war veteran to serve in the Senate, introduced the Suicide Prevention for America’s Veterans Act on Thursday. For Mr. Walsh, the issue is personal: A sergeant who served under him when he commanded an infantry battalion in Iraq in 2004 and 2005 committed suicide after returning home.

“We’ve waited too long to take on this action,” he said. Then, mentioning the 22 veterans who take their lives every day, he added, “That’s an epidemic that we cannot allow to continue.”

. . .

"

Using Flags to Focus on Veteran Suicides - NYTimes.com http://www.nytimes.com/2014/03/28/us/using-flags-to-focus-on-veteran-suicides.html

 

 

 

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