(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/
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/