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May 23, 2012

Commissioner Says Attorneys Have No Obligation To Submit Adverse Medical Evidence In Social Security Disability Cases

     I posted last week about Social Security Commissioner Michael Astrue's testimony before the Senate Finance Committee. I wrote that Astrue said emphatically that attorneys who represent Social Security claimants are under no legal obligation to submit adverse medical evidence. (While I agree that there is no legal obligation, it is my practice to submit adverse medical evidence and I encourage other attorneys to do so but I won't detail my reasons now.)
     I wish I could get a video clip of Astrue's testimony just on this subject but so far I haven't. If anyone has the video editing software and experience to do it, this testimony is about one hour into the hearing. I think a lot of people would find it interesting if it were posted on Youtube. 
     At least, now we have this transcript:
In response to a question from Senator Thune (R-SD) regarding the December 2011 Wall Street Journal article re withholding evidence, the Commissioner responded:
Commissioner Astrue: Senator, I'm afraid I am going to have to disagree with a number of the assumptions of your question. First of all, I am familiar with the Wall Street Journal article. We did not take no action - we did refer that to the Office of the Inspector General. If you have questions about the progress of that, I would encourage you to talk to the Inspector General.
But that article was relatively thin in terms of the content of allegations. There really was not, in my opinion, very much there. It's also based in part on the misassumption that there's a requirement for all relevant evidence to be provided to the judge. Right now, that is not the law. The previous two Commissioners tried to make that the law and my understanding is that they received a lot of opposition and not much support here in the Congress for that.
First of all, the Wall Street Journal had it dead wrong on what the law is. And second, there wasn't much in the way of allegations. Third, it would be unprecedented to go back and review all cases by a law firm on evidence anywhere near this thin. If you had proof of real fraud, and I have no information from the Inspector General that suggests that we have that, then it would be totally unprecedented to do that. Any court that would look at that would throw it out. It would be an enormous waste of the taxpayers' dollars for me to do that.
Sen. Thune asked the Commissioner whether he could summarize the Inspector General's findings. He responded that there is no report yet and he testified:
Commissioner Astrue: I don't have much more than that. But certainly, my expectation ... Again, Senator, read that Wall Street Journal article very carefully. When you realize, first ofall, that there is not a legal obligation to present every bit of evidence to the Agency because our rules are not written that way, there is a factual error underlying that whole article. Past that, there is not very much very specific in terms of evidence: there is unsupported hearsay, that type ... It may be true. But in order for us to take action, we've got to have some proof and evidence. The Wall Street Joumal article did not provide very much for the Inspector General to go on.

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  • 22 Comments:

    Anonymous Anonymous said...

    This is why I love Astrue.

    "The previous two Commissioners tried to make that the law and my understanding is that they received a lot of opposition and not much support here in the Congress for that."

    SUMMARIZED - We told you so!

    3:04 PM, May 23, 2012  
    Anonymous Anonymous said...

    "Asttrue said emphatically"

    astrue spelled wrong.

    4:04 PM, May 23, 2012  
    Anonymous Anonymous said...

    20 CFR 404.1740(c) Prohibited actions. A representative shall not: [....] (3) Knowingly make or present, or participate in the making or presentation of, false or misleading oral or written statements, assertions or representations about a material fact or law concerning a matter within our jurisdiction; [....] or (7) Engage in actions or behavior prejudicial to the fair and orderly conduct of administrative proceedings, including but not limited to: [...] (ii) Willful behavior which has the effect of improperly disrupting proceedings or obstructing the adjudicative process [....]

    4:05 PM, May 23, 2012  
    Anonymous Anonymous said...

    Charles,

    Astrue seems to say no obligation to submit all relevant evidence, but I didn't see where he said no obligation to submit adverse medical evidence in the transcript. Did I miss it? Or was it inferred from the content WSJ article?

    It's certainly wise to submit it anyway. A rep who withheld adverse treating source information would be risking his or her credibility and livelihood, IMO.

    4:51 PM, May 23, 2012  
    Anonymous Anonymous said...

    I can tell you that it has been years since I've seen SSA request any medical evidence at the appeals level. Adverse evidence would always be in the file if SSA bothered to work the files up and contact medical providers. With the budget cuts, the new policy is to make attorneys do what SSA should be doing the whole time.

    7:20 PM, May 23, 2012  
    Anonymous Anonymous said...

    "With the budget cuts, the new policy is to make attorneys do what SSA should be doing the whole time."

    Why should SSA be responsible for making the case for a claimant's disability? The burden is on the claimant to prove disabling limitations.

    7:10 AM, May 24, 2012  
    Anonymous Anonymous said...

    @7:10 -
    The point is that if SSA would bother getting the medical evidence (following the administrative duty to develop each case), they would not have to worry about adverse evidence being withheld.

    9:15 AM, May 24, 2012  
    Anonymous Anonymous said...

    @ 9:15...

    Here's the problem, SSA doesn't have the ability to just seek out all medical evidnece. We can't just say to the world, give us all the evidnece you for claimant X. Instead, we have to rely on the claimant's telling us who they treat with.

    In practice, many claimant's can't remember the name of their doc, much less teh address of the clinic or the phone number. This makes the task of "develop[ing] each case" quite complicated.

    10:05 AM, May 24, 2012  
    Anonymous Anonymous said...

    In my experience, much of the medical evidence in the file is requested by ODAR. In fact, there are several local claimant's representatives who routinely ask our office to obtain medical records for their clients (because they do not want to pay for the records).

    10:55 AM, May 24, 2012  
    Anonymous Anonymous said...

    I love it. As usual, reps talking out of both sides of their mouths. The agency has the burden to obtain med evidence to develop a full record. Reps meet their client in the lobby and only have a responsibility to cherry pick any favorable evidence they want submitted. Then they pick up a check for up to 6 grand.

    Nope, nothing wrong with this system at all.

    11:25 AM, May 24, 2012  
    Anonymous Anonymous said...

    Well, the medical evidence had better be developed at the appeals level, because it sure isn't that complete at the IC level. as a former CR, with an hour for DIB appointments, I struggled with getting all that info down, and with either a faulty memory on the claimant's part (very common) or a gazillion medical sources to get on the record, it was nearly impossible. And "self-help", which was pushed by SSA, was even worse.

    1:59 PM, May 24, 2012  
    Anonymous Anonymous said...

    I have practiced in many states and never seen ODAR request evidence. I have heard ALJs complain because the evidence I supply was not submitted until 2 weeks before the hearing. I consider it my duty to provide the evidence.

    There may have been a surge recently when some ALJs could visit Face book, but that evidentiary foray has been halted.

    Astrue really deconstructed the myths Republican committee members tossed his way. This I will miss in the Commish.

    2:21 PM, May 24, 2012  
    Anonymous Anonymous said...

    There may be no obligation to be provide such evidence, but there is an obligation to be truthful. So I always ask, on the record, if the rep is aware of any other information that is relevant to the case.

    5:25 PM, May 24, 2012  
    Anonymous Anonymous said...

    ANON 2:21 PM. If you really submit records two weeks or more before the hearing, then Thank You. Because it is very common in my ODAR office to see sizeable stacks of records arrive the day before or the day of the hearing despite considerable efforts to get the representatives to submit records earlier.

    6:27 PM, May 24, 2012  
    Anonymous Anonymous said...

    You reps seem to have a very interesting view of "non-adverse" and "ex parte proceedings." On the one hand, the ALJ is supposed to be a completely neutral finder of fact and decisionmaker, an employee of SSA but with such independence that he or she does not represent the Agency's interests. There is supposed to be no fighting the claimant in his pursuit of benefits (at least not until the Federal Court level when OGC steps in). This non-adverse hearing smells an awful lot like an ex parte proceeding where the SSA is left out in the cold.

    But then, because it suits you, you also steadfastly claim that building up the record, ensuring that all evidence is there for a decision, etc. is SSA's job. You all, as attorneys with an ethical charge (See NC Bar Ethics Opinion), cannot possibly be expected to present unfavorable evidence -- even if, realistically, there is no way for SSA to ever get this evidence.

    How do you expect ODAR to have the time and money to double back and request all evidence (even evidence already submitted by reps for fear that unfavorable portions were omitted)? With regard to MSSs and other statements, how is ODAR to know such a statement even exists to request it? What if privilege is asserted (an expert opinion created for litigation, sounds like privilege may apply, folks)?

    If it is truly the case that SSA has to do all the work in developing the record to make sure all relevant evidence is there, and if SSA isn't being adverse, then why exactly are reps needed? What exactly are you being paid for?

    9:56 AM, May 25, 2012  
    Anonymous Anonymous said...

    Lot of jaded folks on this comment board, I see.

    As a rep, I consider it my duty to submit all evidence I receive that is freely available to any requesting party. That means if I get a stack of records from a primary doctor and he says on a few of the reports, "patient can do sedentary work," I submit them. No need to hide evidence that an ALJ can seek freely, as is his duty.

    If I specifically request an RFC form to be prepared, and pay for it on the claimant's behalf, and said report is unhelpful, I don't feel an obligation to submit it. That evidence was created specifically for my request and paid for with my money, and therefore cannot be freely accessed. Maybe that's right, maybe that's wrong, but such is the way the CFR is written and interpreted.

    Moreover, I only turn to ODAR for assistance in procuring records when I have difficulty doing it myself; for example, a source does not respond to my requests, or fails to send me an invoice, or simply does not comply with my requests in some way. Then, I will ask the ALJ for a subpoena. If there is outstanding evidence post-hrg that the ALJ wants, I will do my best to get it myself and will only ask for a subpoena if, as above, I am unsuccessful. I will not do a half-assed job and then call the ALJ out in my AC brief for failing to develop the record.

    Of course, there are many firms out there that do engage in such practices, and one particularly large firm comes to mind. Perhaps other small firms do it too. But I have to disagree with that practice and will only call out an ALJ for failure to develop when it was clearly his duty and he clearly failed to do it (say, on pro se cases I pick up for AC, or where I rightfully request a subpoena and it is never issued).

    So don't paint all reps with the broad stroke of the BAD brush.

    10:15 AM, May 25, 2012  
    Anonymous Anonymous said...

    "If I specifically request an RFC form to be prepared, and pay for it on the claimant's behalf, and said report is unhelpful, I don't feel an obligation to submit it. That evidence was created specifically for my request and paid for with my money, and therefore cannot be freely accessed. Maybe that's right, maybe that's wrong, but such is the way the CFR is written and interpreted."

    So you admit you withhold very relevant info (an opinion regarding the claimant's functioning from a [presumably] treating source), but say it's ok because of your reading of one reg from the CFR (when at least three others seem to suggest you should be submitting it).

    A treating source's opinion is the most important evidence a claimant can have. Although oftentimes misinterpreted, there is a treating source rule, which basically states that unless there is significant inconsistent evidence, a treating source opinion is to be given controlling weight. Yet, it's perfectly ok to withhold such evidence if it hurts your case because you paid for it and because of a selective intepretation of one out of a few conflicting regs? Get outta here.

    10:28 AM, May 25, 2012  
    Anonymous Anonymous said...

    20 CFR 404.1470(b) Affirmative duties. A representative shall, in conformity with the regulations setting forth our existing duties and responsibilities and those of claimants (see § 404.1512 in disability and blindness claims):
    (1) Act with reasonable promptness to obtain the information and evidence that the claimant wants to submit in support of his or her claim, and forward the same to us for consideration as soon as practicable. In disability and blindness claims, this includes the obligations to assist the claimant in bringing to our attention everything that shows that the claimant is disabled or blind, and to assist the claimant in furnishing medical evidence that the claimant intends to personally provide and other evidence that we can use to reach conclusions about the claimant's medical impairment(s) and, if material to the determination of whether the claimant is blind or disabled, its effect upon the claimant's ability to work on a sustained basis, pursuant to § 404.1512(a).

    Note that reps must provide the evidence that the claimant wants to submit in support of his/her claim, and bring to SSA's attention everything that shows that the claimant is disabled.

    Doesn't sound like reps need to submit adverse medical source statements that they paid for, considering the claimant would not want to submit it and it does not support their claim for disability.

    The regs trump all, as far as I'm concerned, unless an SSR comes out later to modify the regs. Unless I'm mistaken, no SSR has been produced which modifies, changes, expands, or further expounds upon this reg in any way.

    It may not seem right, but those are the rules, the same as how the grids just don't seem right but those are the rules.

    10:58 AM, May 25, 2012  
    Anonymous Anonymous said...

    Take the program back to where it started. Use the CAL list as the guide. Pay only those that have a condition that will end in death. They did not kick Grandma Walton off the mountain when she had a stroke, they took her home and took care of her. It is the responsibility of the family to take care of itself not the state.

    Oh yeah, sorry, this is the USA and we dont do that anymore, all for one and the one is me!

    11:21 AM, May 25, 2012  
    Anonymous Anonymous said...

    Is there a link to the total transcript or is it just the video?

    11:23 AM, May 25, 2012  
    Anonymous Anonymous said...

    that reg also imputes 404.1512 to reps.

    404.1512 says:

    In general, you have to prove to us that you are blind or disabled. Therefore, you must bring to our attention everything that shows that you are blind or disabled [this sounds like you only have to submit the good stuff]. This means that you must furnish medical and other evidence that we can use to reach conclusions about your medical impairment(s) and, if material to the determination of whether you are blind or disabled, its effect on your ability to work on a sustained basis [uh oh, this doesn't].

    your contention that only the favorable stuff needs to be submitted is not so clear.

    11:29 AM, May 25, 2012  
    Anonymous Anonymous said...

    No one has explained why withholding evidence does not satisfy the definition of "actions or behavior prejudicial to the fair and orderly conduct of administrative proceedings," including "willful behavior" that has the effect of improperly "obstructing the adjudicative process" (20 CFR 404.1740(c)(7)).

    Anyone? Anyone?

    12:25 PM, May 25, 2012  

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