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."
13 comments:
My two cents. An attorney has an obligation of "candor toward the tribunal". Withholding any records could be construed as violating that rule.
A second approach that I (an attorney) take is this. While SSA may not be able to file an ethics complaint, there is no restriction on the client to do so. If the client is denied, they may begin looking for a reason why.
When they find out evidence was withheld, and IF a ethics complaint is filed, I would find myself in the unenviable position of proving a negative with the Bar. That is, the evidence withheld would not have led to a favorable decision.
Finally, I am always concerned that if I get a reputation as an attorney that withholds evidence, the ALJ's will always be wondering what is missing from the medical record. As a rule, I send in everything.
In our office--I can attest from slogging through volumes of unhelpful tomes--many reps are consistent about submitting everything. And despite having the arduous task of analyzing all of these records, I'm glad they send them all in. I'd rather KNOW what is and isn't relevant than have to wonder. One of our sharper judges recently asked an attorney if there were any additional records available that hadn't been submitted, and he brilliantly (cough) said something to the effect of, "Oh, I didn't think I had to submit anything that wasn't helpful to my client's case." That kind of crap is probably more common than any of us care to realize, and despite the arguably unworkable nature of SSA's proposal in its current form, at least it would seem to help clarify things for the nimrods among us. That's not to say that I support it, but at least it wouldn't be without *some* benefit...
all are relevant.
You may not like it, but they MIGHT all possibly include evidence that goes to credibility.
I'm a claims rep. I see claims approved for thing other than what the claimant claims their condition is regularly. Someone may claim they have a bad back but get approved for depression. I would tend to believe it's good practice to provide all medical docs to broaden the scope of the findings. Maybe I'm wrong, but I see it quite a bit.
I have no problem with a general duty to submit all evidence known, favorable or unfavorable. But when the Feds decide to do a formal rulemaking, bad things can happen. So here's another hypo: Cl's ex-wife calls your office. She rants at you that your client is a "bum." He is a "lazy slob." He was physically abusive. There is "nothing wrong with him."
Are these statements "evidence?" Indisputably yes. Are they "privileged", or work product? Probably not. Are they material? Therein lies the rub. Ranging from allegation #1, to allegation #4, the materiality test goes up.
So assume it's evidence, assume it's not exempt because of work product or privilege, and assume it's material. It's in an oral form. Is the rep obligated to make notes and send them to ODAR? Is the rep obligated to obtain a written statement from the ex-wife and submit that?
Any written rule that goes as far as SSA apparently wants this rule to go is a prescription for trouble. The current duty not to redact is objective. This proposed rule would be too subjective to be practically enforceable.
All good points.
As an attorney and former journalist, I always side with disclosing everything. Let the chips fall where they may if medical records are unfavorable.
I am torn when it comes to our own RFC forms filled out by doctors. If an RFC is totally unfavorable, not sure why the duty to advocate zealously represent your client's interest does not dictate withholding that evidence. I see that as my own attorney produced evidence not medical records. But I can see both sides.
As an attorney, I'm happy that we will finally have clarity on this issue. I have no problem with a duty to disclose all relevant evidence. On the other hand, as recent events have shown, there is a big difference between a general idea and the implementation of that idea. I will be paying close attention to the exact wording of these regulations.
I can remember an ALJ springing an ah hah! moment on me because I had not furnished the second page of records that were faxed to me. Thuis was an ALJ who actually counted pills. The page I didn't bother sending along was my client's authorization to release the records. What a tool! I send everything relevant -- broadly interpreted. I don't fill the record with garbage, although I did make an exception with that particular ALJ. He got it ALL. I also draw the line at chasing after stuff like an insurance co IME report for a comp claim. If I have it, I send it in and make argument about why it's trash, but I'm not wasting time looking for it.
Max:
The proposal says the claimant will have to inform about or submit evidence. So if there is an IME that is not in the claimant's possession, claimant's duty is simply to inform SSA that it exists. You don't have to provide something you don't have but you cannot hide its existence. At least that is the way I read it now.
If I leave some irrelevant garbage out, I always send in a cover letter saying what I am leaving out and that I would be glad to submit it upon request. Typically, that's stuff like patient consent forms, copies of authorizations for release of records, my own letter requesting the records, etc.
Every so often I get a 1,000+ page production from a hospital. I typically ask the ALJ what he or she wants. Some are pragmatic enough to limit it (usually admit and discharge summaries, test and examination results, operative reports). If no response they get it all.
There's a tension here between using limited resources (SSA staff time) versus making sure all the records are considered. Everyone agrees that reps should not intentionally leave out relevant evidence that they obtain, and the rules should reflect that.
However, if they go overboard with the rule and require mass production of obviously irrelevant records, then they will add some big bales of straw on an already overburdened camel's back.
Doesn't this seem most likely related to the statements from former employees of the biggest rep firm - who said the company's policy is to hide or ignore anything that might not be totally favorable to the claimant?
Me thinks so!!
What is relevant all depends on the particulars of the case. And I often find seemingly benign treatments notes - dicta, as it were - of a non-severe impairment that cast light on the alleged severe impairments
"Anything and everything" is unnecessary. When I ask my female clients what doctors they see they often give me the name of their gynecologist. I ask them if there is anything abnormal or anything that could potentially impair the ability to work..... painful fibroids, excessive bleeding, etc. I am not going to waste my time or SSA's time getting a record of a routine pap smear.
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