From the description -- and a short description is all that's available now -- of a Notice of Proposed Rule Making (NPRM) that Social Security has sent to the Office of Management and Budget (OMB) for approval:
We propose to require claimants to inform us about or submit all evidence known to them that relates to their disability claim, subject to two exceptions for privileged communications and work product. This requirement would include the duty to submit all relevant evidence obtained from any source in its entirety, unless subject to an exception. We also propose to require a representative to help the claimant obtain the information or evidence that the claimant must submit under our regulations.This NPRM may be changed as a result as a result of OMB concerns. At best, it will take some months to get this through OMB. OMB has slowed down greatly as a result of the government shutdown and sequestration. If this gets through OMB, it is still just a proposed rule. It would have to be published in the Federal Register. Social Security would have to allow comments on the NPRM and then consider them. My gut feeling is that this proposal will prove to be problematic. Let me list a few concerns that occur to me off the top of my head which may indicate why this is more complicated than it may seem at first:
- What does "all evidence known to them" mean? How far does this extend? A single hospital admission can generate more than a thousand pages of medical records. Does Social Security really want all of these? If Social Security doesn't really mean "all", how are attorneys supposed to decide what to obtain without using their judgment? Once attorneys start using their judgment, is this going to mean anything?
- What does "relate to their disability claim" mean? What if a client has had treatment for infertility or something else probably unrelated to their disabling impairment or impairment that the client may reasonably feel is none of Social Security's business? How does one determine what is "related" to the disability claim?
- How far does the duty to assist a claimant to obtain medical records extend? Medical records can be expensive to obtain. Are attorneys obliged to spend $500 to get medical records that Social Security, itself, declined to obtain? Does the Social Security Act even allow the imposition of this sort of financial burden on attorneys?
- When does an attorney have this obligation? If attorneys have this obligation at the initial level, they're going to be duplicating Disability Determination Services efforts. If attorneys do have this obligation at the initial level, maybe they just won't take on cases at the initial level anymore since the effort and expense will be disproportionate to the potential fees. Does Social Security wants attorneys to withdraw from initial and reconsideration representation?
If Social Security goes ahead with this and it has teeth, expect endless controversies and unintended consequences. I know the Republicans in Congress are howling about Binder and Binder but be careful. This isn't simple. Those Republicans are going to be howling about something no matter what Social Security does.