The Social Security Administration (SSA) recently submitted a proposed rulemaking package on “Submission of Evidence in Disability Claims” to the Office of Management and Budget for regulatory review. These proposed rules are aimed at providing clarity on the need to submit all non-privileged, written evidence related to Social Security disability claims. Once cleared, these rules will be published as a Notice of Proposed Rulemaking in the Federal Register.
SSA’s proposed rules follow up on a report issued last fall by the Office of the Chairman of the Administrative Conference examining evidentiary submission in disability claims, SSA: Disability Benefits Programs: The Duty of Candor and Submission of Evidence. SSA commissioned this study for suggestions on how the agency might better ensure complete evidentiary records, thereby enhancing the fairness and accuracy of the disability adjudication process. The report briefly reviewed and summarized relevant portions of the Social Security Act, as well as SSA’s current regulations and practices. It also reviewed requirements governing other tribunals and analyzed ethical standards concerning disclosure of information by representatives. Based on the research conducted, the report presented guiding principles and regulatory options SSA should consider “if it wishes to expressly impose an affirmative obligation on claimants (and, derivatively, their representatives) to submit all documentary evidence related to their disability claims,” with the aim of compiling an adequate record on which adjudicators may base their decisions. Among other things, the guiding principles included recommendations to place a disclosure obligation on claimants (representatives’ obligations being derivative of their clients’ obligations), identify and describe, with a reasonable degree of specificity, the evidence the agency desires from the claimant, as well as exempt disclosure of items protected by attorney-client privilege and work-product doctrine.
In the 2013 Spring Unified Agenda, SSA described its proposed rule as follows: “We propose to require claimants to inform us about or submit all evidence known to them that relates to their disability claim, subject to two exceptions for privileged communications and work product. This requirement would include the duty to submit all relevant evidence obtained from any source in its entirety, unless subject to an exception. We also propose to require a representative to help the claimant obtain the information or evidence that the claimant must submit under our regulations.”
Such a goal to require a duty of candor and submission of all evidence (subject to appropriate exceptions) promises to ensure a complete record, which in turn, as we noted in our report, will “lead to better, and more fair, adjudication.”