Monday, October 9, 2017

New Social Security Ruling (SSR 17-4p) is Not Practicable For Social Security Lawyers

A few days ago, the Social Security Administration promulgated a new ruling regarding the duty of Social Security Lawyers to submit evidence in a timely fashion. Unfortunately, the ruling does not provide practicable guidance to Social Security Lawyers or their clients. SSR 17-4p states in part:
[W]e expect representatives to submit or inform us about written evidence as soon as they obtain or become aware of it. Representatives should not wait until 5 business days before the hearing to submit or inform us about written evidence unless they have compelling reasons for the delay (e.g., it was impractical to submit the evidence earlier because it was difficult to obtain or the representative was not aware of the evidence at an earlier date). In addition, 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. Simply informing us of the existence of evidence without providing it or waiting until 5 days before a hearing to inform us about or provide evidence when it was otherwise available, may cause unreasonable delay to the processing of the claim, without good cause, and may be prejudicial to the fair and orderly conduct of our administrative proceedings. As such, this behavior could be found to violate our rules of conduct and could lead to sanction proceedings against the representative. ...  (For a copy of SSR 17-4p click here.)
In response to this ruling, the National Organization of Social Security Claimant's Representatives (NOSSCR) has submitted a letter to Commissioner Berryhill that states in part: 
In many situations, it is not practicable for “representatives to submit or inform us about written evidence as soon as they obtain or become aware of it.” During the lengthy wait from request for an ALJ hearing to receipt of a determination on the claim (the current national average processing time is 627 days), claimants may have dozens or even hundreds of medical appointments, tests, treatments, and hospitalizations. Requesting records each time a claimant with kidney failure receives dialysis or a claimant with schizoaffective disorder sees a psychiatric social worker could require numerous requests per week. In some states, disability claimants are entitled to one free copy of their records but must pay for subsequent requests. In other states, the first few pages of medical records cost more than subsequent pages. Therefore, making frequent requests to providers months or years in advance of the hearing is not just aggravating to the providers, unlikely to be successful in obtaining evidence, and unnecessary given the long delays before ALJs review the file, but also impossibly expensive for many claimants.  (For a full copy of the letter click here.)
As a sustaining member of NOSSCR, I share the same concerns. Evidently, many at the SSA are working hard to make life miserable to those who represent disability claimants. Instead of helping reduce the agency's backlog and provide a fair adjudication process, this new ruling will lead to more delays and unnecessary appeals.