Monday, March 30, 2015

New Duty to Submit Adverse Evidence

On March 20, 2015, the Social Security Administration published a "final" rule regarding the duty of Social Security Disability Lawyers to submit all relevant evidence pertaining to a disability claim. These new regulations are available at at 80 Fed. Reg. 14828 (Mar. 20, 2015).  For a PDF version of the rule click here.
Many lawyers expressed concern regarding this new rule because it erodes the attorney-work product privilege that protects certain documents created by lawyers during the course of a judicial or administrative proceeding.  Specifically the new rule states that claimants and their lawyers must "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. Therefore, both favorable and unfavorable evidence must be submitted.
What “evidence” must be submitted?  The claimant and his or her lawyer 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. 
What about opinions and questionnaires generated by doctors during a disability claim? 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.”  Therefore, these questionnaires have to be turned over to the SSA even when they are not favorable to a claimant's case.