You may have noticed the extensive comments on my post about Social Security's plan to make attorneys responsible for obtaining "all relevant evidence obtained from any source in its entirety" concerning a disability claim. I had posed the hypothetical of a claimant who had received treatment for infertility. Some people thought that was irrelevant to a disability claim. Others felt it was relevant. People had strong opinions of the subject. Let me lay out a few more common situations for people to comment on:
- Claimant had an admission to a detox facility to help him stop drinking. This was two years before his alleged onset date. Claimant denies he is drinking now.
- Claimant has a Functional Capacity Evaluation (FCE) as part of her workers compensation claim. Claimant was represented by a different attorney on the workers compensation claim. Remember, Social Security, itself, says that FCEs are unreliable.
- Claimant claims that he is disabled by arthritis in his knees and back. He is also seeing a dermatologist for eczema which he says is an annoying but not a disabling problem.
- Claimant was hospitalized. Her entire hospital record runs to over a thousand pages. Which of the following should the attorney obtain? 1) Admission summary 2) Discharge summary, 3) Nurses notes, 4) Physician notes, 5) TPR records (that's temperature, pulse, respiration), 6) Lab reports, 7) Imaging reports, 8) Consultant physician notes, 9) Other test reports such as pulmonary function reports, EEG reports, cath reports, etc., 10) Surgery notes, 11) Pathology reports. Does it matter why the claimant was hospitalized? If the obligation on the attorney is to obtain the record "in its entirety", how do you rationalize making exceptions?
- Claimant sees a chiropractor for a few months for treatment for back pain.
- Claimant was in physical therapy for his shoulder pain for three months. He then decided to have shoulder surgery but it didn't help. The alleged onset date is the date of the surgery.
What I'm suggesting is that this proposal may sound good but it's going to be impossible to draft it so that it's enforceable. Taken literally, the "in its entirety" language is unworkable. There is also no way to adequately define "relevant evidence."