Much has been made of Social Security’s new rules that were put in place in the beginning of 2015. The rules were implemented after notice and comment procedures. The general goal of these rules were to provide clarity that was previously lacking in terms of what evidence a claimant and their representative/attorney must submit. Some attorneys were hesitant or not submitting evidence that was non supportive of disability. The new rules now clarify that all evidence (both supportive and non supportive) must be submitted. There are notable exceptions for attorney work product and attorney client privileged information.
Who is responsible for submitting evidence to Social Security?
The claimant or representative is responsible for obtaining and submitting all evidence to Social Security. This includes at all levels of the appeal process including appeals to the Appeals Council. If the evidence is in a foreign language, the Social Security Office can have it translated. If you have a representative, they will assist in the process of obtaining necessary evidence. The representative is primarily responsible for obtaining evidence at the hearing level, however the administration will primarily gather evidence at the application and reconsideration levels. This is after you have informed them which doctors you have seen so they know where to request them from.
What evidence do I need to submit and when?
In short, pretty much all evidence including evidence that would tend to show that you are not disabled. Attorneys are supposed to inform their clients that they must submit all evidence including evidence that is not supportive of disability. All medical and non-medical evidence that you receive after requesting it must be submitted as evidence. No factual information, medical, or non-medical evidence may be withheld. When you apply for disability, you must identify all medical and non-medical sources related to your disability on the form. The rule also states that you have a continuing duty to inform SSA about any new information that becomes available after you first informed them of sources of medical information/evidence. The records must include everything from the previous twelve months before the date you became disabled.
If your disability does not date back that far, or dates back further, you will be required to submit all relevant evidence dating back to the beginning of your disability. All evidence from these sources must then be submitted to Social Security. In addition, you also have the option of just informing Social Security about any evidence related to your claim. However, you will also be expected to respond to any and all requests for related information, or evidence.
What if I don’t submit evidence or disclose existence of evidence that relates to whether I am disabled?
One could be subject to civil penalty but would not include those persons who have cognitive impairments and do not understand these rules. It would also include instances in which a claimant withheld or concealed evidence from their representative.
Which type of evidence does this rule not encompass?
It does not include “attorney work product” that is commonly defined in state ethics rules such as the mental impressions and attorney theories as to what may happen in case. Such as whether an attorney believes their client is disabled. It also doesn’t include any communications that would be otherwise privileged as attorney client communications.
What happens to the evidence once you submit it? Is it kept confidential?
The evidence obtained by Social Security is kept confidential and is used for purposes of determining your eligibility. You must submit a written request, or visit the local office in order to obtain records from Social Security that you do not have. It may be released to the claimant, parent, or legal guardian with proper identification. It may also be released to an adult who holds legal guardianship over an individual if they have been declared legally incompetent.
Who has to pay to obtain the evidence?
The claimant is responsible for giving all relevant evidence to Social Security and this includes any reasonable cost. This question is not so clear since another rule states that social security will pay for records from non-federal sources. 20 C.F.R. 404.1514. If you reasonably make efforts to find and locate records but there is a problem receiving them it is possible to request that Social Security issue a subpoena.