On February 20, 2014, the Social Security Administration (SSA) issued a Notice of Proposed Rulemaking (NPRM) in the Federal Register regarding “Submission of Evidence in Disability Claims.”  According to the NPRM, SSA seeks to “clarify [the] regulations [that] require [claimants] to inform [the agency] about or submit all evidence known to [the claimant] that relates to [the claimant’s] disability claim, subject to two exceptions for certain privileged communications.”

The NPRM, in significant part, relies on a report issued in the fall of 2012 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.  The NPRM notes that the report provided “several principles and options that have guided [SSA’s] efforts in this area,” including that disclosure obligations should:

  • Be placed directly on claimants so that represented and unrepresented claimants have the same obligations;
  • Apply to both attorney and non-attorney representatives equally;
  • Not intrude upon attorney-client privilege or attorney work product; and
  • Minimize the extent to which claimants and/or representatives must make subjective judgments regarding the relevance of evidence, mitigating the burden of deciding whether to submit certain information.

The NPRM proposes several changes to the regulations; the changes include:

  • Requiring claimants to inform SSA about, or provide the agency with, all known evidence.  In the proposed rule, SSA identifies the types of evidence needed from claimants and removes the obligation of claimants to determine what evidence is “material.”  SSA affirms that it is not shifting responsibility for developing the record from the agency to the claimant or representative;
  • Excluding from the definition of “evidence” oral and written communications between claimants and representatives, as well as representatives’ analysis of claimants’ claims (unless the information is voluntarily disclosed by the claimant or representative).  For example, a medical source’s analysis would be included in the definition of evidence; however, a representative’s notes on the medical source’s analysis would be excluded from the definition of evidence;
  • Submitting (or informing the agency about) all evidence in its entirety.  In the proposed rule’s preamble, SSA states that there should be no redactions within a document or among a group of documents;
  • Requiring claimants to inform SSA about their medical sources; and
  • Requiring representatives to help obtain information that claimants must submit.

Comments on the proposed rule are due no later than April 21, 2014, and may be submitted via Internet, fax, or mail (see page 9664 of the Federal Register Notice for instructions on how to submit comments via these three media).

Social Security Administration
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