The Social Security Administration has proposed changes to rules regarding submission of evidence. In general, the SSA is going to require the claimant inform it about or submit all evidence known that relates to the disability claim, subject to two exceptions for certain privileged communications. This requirement would include the duty to submit all evidence obtained from any source in its entirety, unless subject to one of these exceptions. They also propose requiring the representative to help obtain the information or evidence that required to be submitted.
We propose to revise §§ 404.1512(a) and 416.912(a) to require you to inform us about or submit all evidence known to you that relates to whether or not you are blind or disabled.This would include evidence that may be either favorable or unfavorable to your claim. As part of this proposal, we would remove our current requirement in sections 404.1512(a) and 416.912(a) that you “must furnish medical and other evidence that we can use to reach conclusions about your medical impairment(s).” The duty to inform us about or submit all evidence that relates to your disability claim would include all of the types of evidence we need to determine disability under our regulations and would remove the need for you to determine what evidence is “material” to the disability determination. In addition, by requiring you to inform us about or submit all evidence that relates to your disability claim, we would clarify that we are not shifting our responsibility for developing the record to you. Our disability system is non-adversarial, and we assist claimants in developing the medical and non-medical evidence we need to determine whether or not they are disabled.
We also propose to add a new paragraph to current §§ 404.1512(b) and 416.912(b), which would set forth two exceptions to what we mean by “evidence.” First, in proposed §§ 404.1512(b)(2)(i) and 416.912(b)(2)(i), we would exclude oral and written communications between you and your representative that are subject to the attorney-client privilege, unless you voluntarily disclose the communication to us. The attorney-client privilege protects confidential communications between a client and his or her attorney in order to obtain and provide sound legal assistance. Its purpose is to encourage attorneys and their clients to communicate fully and frankly. This privilege does not apply to communications with non-attorney representatives, but we would also exclude from the definition of evidence communications between claimants and their non-attorney representatives that would be subject to the attorney-client privilege, if the non-attorney representative were an attorney. As recommended by ACUS in its Final Report, we believe that any proposed disclosure obligations “should apply both to attorney and non-attorney representatives.”
The attorney-client privilege “only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.”For example, if you write a letter to your representative disclosing the names of your medical source(s), the privilege would preclude disclosure of the letter, but not the names of your medical source(s).
Second, in proposed §§ 404.1512(b)(2)(ii) and 416.912(b)(2)(ii), we propose to exclude your representative’s analysis of your claim, unless he or she voluntarily discloses it to us. By “analysis of yourclaim,” we generally mean the information that is subject to the attorney work product doctrine. This doctrine protects an attorney’s analysis, theories, mental impressions, and notes. Its purpose is to provide an attorney with a degree of privacy within which to carefully and thoroughly prepare his or her client’s case.
We do not intend, however, to incorporate into these proposed rules the full scope of the work product doctrine under Rule 26(b) of the Federal Rules of Civil Procedure. Rather, consistent with our broad authority under the Act to “adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits,” these proposed rules incorporate a more limited version of the work product doctrine than would apply under the Federal Rules. Under these proposed rules, your representative’s “analysis of your claim” does not include certain material that we may consider in determining whether or not you are entitled to or eligible for the benefits for which you have applied. For example, if your representative takes notes during a discussion with one of your medical sources about your condition, we would consider those notes your representative’s analysis of your claim, and they would be protected from disclosure under these proposed rules. However, if your medical source sends your representative medical records or a written opinion about your condition, your representative could not withhold those records and that opinion based on the work product doctrine. Those documents would be subject to the duty of disclosure under these proposed rules.
To clarify this point, we provide in proposed §§ 404.1512(b)(2)(ii) and 416.912(b)(2)(ii) that your representative’s “analysis of your claim” means information that is subject to the attorney work product doctrine, but does not include medical evidence, medical source opinions, or any other factual matter that we may consider in determining whether or not you are entitled to or eligible for benefits. We then provide a cross-reference to new paragraph (b)(2)(iv), where we further explain the scope of the privileges within the context of these proposed rules.
Although the work product doctrine applies only to attorneys, we also exclude from the definition of evidence documents that would be subject to the work product privilege, if the non-attorney representative were an attorney, to the same extent that we have discussed above.
We also propose revising §§ 404.1512(c) and 416.912(c) to clarify that it is your responsibility to inform us about or submit all evidence known to you that relates to whether or not you are blind or disabled. In addition, when you submit evidence to us from another source, we would require you in proposed §§ 404.1512(c) and 416.912(c) to submit that evidence in its entirety. For example, if you obtain your patient file from one of your medical sources, we would require you to submit all of the medical records in that file. When we last revised §§ 404.1512(c) and 416.912(c) to require that you provide evidence “without redaction,” we explained at the time that this means, for example, you must not redact evidence from a medical report you submit to us. As ACUS pointed out in its Final Report, however, we did not define “without redaction” or fully explain what we meant by this requirement. Therefore, one could interpret “without redaction” to mean either within a document or among a group of documents. We intend our proposed requirement for submission of evidence in its entirety to clarify that we mean both types of redaction.
Finally, in proposed §§ 404.1512(c)(1) and 416.912(c)(1), we would clarify that, if we ask you, you must inform us about your medical source(s). We currently request the names and addresses of all of your medical source(s) on the adult and child disability applications; such information is within the scope of your current responsibility to submit evidence that shows you are blind or disabled.  However, as part of our clarification of your duty to inform us about or submit all evidence that relates to your disability claim, we believe we should expressly list this type of evidence with the other types referenced in current §§ 404.1512(c)(1)-(6) and 416.912(c)(1)-(6).
The Representative’s Duty To Submit Evidence
As stated above, we propose to place the duty to submit evidence directly on claimants, not their representatives, if represented. Therefore, we propose to revise §§ 404.1740(b)(1) and 416.1540(b)(1) to require that representatives help obtain the information or evidence that claimants must submit under our proposed regulations. By requiring representatives to help obtain the information or evidence that claimants must submit, we would clarify that we are not shifting our responsibility to develop the record to claimants’ representatives.
If you need more information about a Social Security Disability/SSI matter, personal injury matter (car wreck, boating accident, slip and fall, etc.), EEOICPA claim, long or short-term disability, VA disability, Railroad Retirement Board disability, or a workers compensation matter, please contact the Law Offices of Tony Farmer and John Dreiser for a free case evaluation. We can be reached at (865) 584-1211 or (800) 806-4611, through Facebook, or through our website. Our office handles claims throughout East Tennessee, including Knoxville, Chattanooga, Kingsport, Bristol, Johnson City, Morristown, Maryville, Rogersville, Dandridge, Tazewell, New Tazewell, Jefferson City, Strawberry Plains, Sevierville, Gatlinburg, Loudon, Kingston, Halls, Maynardville, Crossville, Cookeville, Jamestown, Sweetwater, Lenoir City, Athens, Oak Ridge, Clinton, LaFollette, Lake City, Jacksboro, Bean Station, Cosby, Newport, White Pine, Mosheim, Wartburg, Sunbright, Pigeon Forge, Greeneville, Harriman, Dayton, Spring City, and Deer Lodge.