Nov 14, 2013

NPRM On Obtaining And Submitting Evidence Coming

     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.

40 comments:

Anonymous said...

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?
If one hasn't ever practiced real law, one may not be aware that real attorneys bear the financial burden of obtaining medical records and deposisitions in real cases. That is why real attorneys make informed decisions before taking every case that walks in the door. They have an "investment" in the case. Now, not only do the claimant's have an entitlement mentality, so do the disability attorneys... Geeesh.

Anonymous said...

Except there are many of us who work in legal services type organizations who do NOT charge fees and do NOT have money to pay for records...

Anonymous said...

9:15, SSDI attorneys are real attorneys. Go home, teabagger.

Anonymous said...

Each of you points make sense. We've had ALJ's tell us we have to submit everything with a capital E, and when pressed if they want hundreds of pages of nursing notes, ekg, etc, just clam up and say "that's your decision, I mean, if you feel it's important...".

Wondered how closely I could guess the opposing comments, but then saw I was the first to comment. To save them the time, let me take a crack at it.

1. You know what "all of the evidence" means. Be reasonable.

2. You know what relates to disability or not. No one's getting busted for ommitting fertility treatment. You're throwing up straw man arguments.

3. How far does the duty extend? Why don't you reps get off your fat, lazy butts and put some thought into it and actually earn a sliver of the the $6,000.00fee?

4. The Disability Determination Service will be glad to tell you exactly what they have. Wait, just the dates and number of pages isn't good enough?

5. Your objections are only so that you can hide the fact that your drug addled good for nothing client's got caught. Your actual concerns are not worth of consideration.

Anonymous said...

I see that, by the time I finished the above, I wasn't the first poster.

Justin

Anonymous said...

Gratified to see number 3 argued already. This is easy.
Justin

Anonymous said...

Except there are many of us who work in legal services type organizations who do NOT charge fees and do NOT have money to pay for records...

And there are many of you that can spend $100,000.00 on advertizing.... I see so many disability ads on TV it makes me sick..

Anonymous said...

I have zero problem with this. This is already and has been my practice since I started representing disability claimants. I see it as required by both my state bar ethical rules towards candor to the tribunal in a non-adversial setting when viewed in the context of the claimant's burden to provide evidence without redaction as set forth at 404.1512. My state bar ethics folks agree with me. The B&B dust-up has given us a black eye, but I think most lawyers are concerned about ethical consequences they face with their state bar if it's discovered their hiding something in a non-adversarial setting. If not, the rule will certainly clear that up. A little guidance from SSA on the hundreds of pages of nurses notes that we routinely omit from hospital records would be helpful. I've been blasted by ALJs for submitting those and have stopped doing so unless I thought the records could be viewed as adverse, in which case I submit them just to be on the safe side.

As for IAs, if you're doing them without getting the medical records yourself already, how exactly are you advancing your client's case? When I do an IA, I am trying to develop the record (including with opinion evidence) to support the claim. I pay for records and submit them even though they may be duplicative of what the DDS got.

As for the comment about earning the $6K fee, the vast majority of cases don't result in a $6K fee. Judges slice and dice back benefits by effectively coercing amended onset dates and when you when at the reconsideration or IA stage, the state agency is often finding alternative onset dates. I walk away with a good number of cases that I win each year with zero fee, but a happy client who doesn't want to appeal to get back benefits. That's just the way it goes in this practice, but no one tells that side of the story.
Anyways, tightening the rules on reps will not protect our clients from shoddy practice by attorneys and non-attorneys. Sure it will be a weapon in the hands of hateful and spiteful ALJ's, but if your minding your P's and Q's as any lawyer should when appearing before a judge, you shouldn't run into trouble.

I hope NOSSCR doesn't oppose this, but instead engages SSA about how the rule should be worded. This rule is good for our clients, good for the bar who practices in this area, and good for the system.

Anonymous said...

The prior post is mine. I left an errant "not" in the second-to-last paragraph. I meant to say: "Anyways, tightening the rules on reps will help to protect our clients from shoddy practice by attorneys and non-attorneys."

Anonymous said...

Unless your client files a complaint with the State bar about you withholding evidence (which would be unlikely since you would only withhold evidence that hurt your client), you have nothing to fear from the State bar.

The attorneys/ALJs are explicitly prohibited by SSA from reporting misconduct by claimant representatives to the State bar.

Anonymous said...

Most lawyers I know don't want to be anywhere near an ethics violation. We are essentially a self-policing profession. That being said, it's ridiculous that misconduct in SSA proceedings can't be reported to the state bars.

Anonymous said...

Anon at 11:23; Here at SSA, we take protection of the claimant's personally identifiable information very seriously. It would be virtually impossible to report ethical violations to the Bar without violating that protection.

Anonymous said...

Just as an aside, as an ALJ, in certain claims, e.g. one where a claimant was alleging mental impairments so severe as to not be able to attend to ADLs, I would find it relevant that the claimant was trying to get pregnant and would be upset at a representative who sat on those records.

Anonymous said...

I'm sorry, anon 12:15, but what the heck does a claimant "trying" to get pregnant have to do with the ability to perform sustained work activities? Such an assertion in a denial would be an easy ground for AC remand!

Anonymous said...

One is alleging she is so mentally unstable that she cna't take care of herself, but feels that she can take care of children? May go to credibility to say the least.
One problem I have with the system is that the Reps have no investment in the outcome of the case and will take anybody that walks in with the "What do we have to lose?" mentality. I routinely have 25% no show rate and a great many of them had Reps that withdrew within the month of the hearing. This is a waste of time and money. Perhaps if they were paying for records they would realize far earlier than a month per-hearing that they don't have a case..

Anonymous said...

Maybe I don't understand what you mean by "trying" to have children. How would this "activity" hurt someone's credibility? Sounds to me like the ALJ "sit and squirm" test that has been uniformly discounted. What do you mean that a rep has no investment in a case? If you deny our client who is "trying" to have children, we are not paid for the time that we have spent on that case. Enough of these denials and we no longer have a practice.

Now I do agree with you that it is wrong for an attorney to take any case that comes through the door. And it is wrong for a rep to w/draw the month before a hearing. But it sounds like you're painting with a rather broad brush...

Anonymous said...

@ 1:50

the act sex, which is required to get pregnant, is inconsistent with many claims that many claimants make.

Therefore, records from an ob/gyn MIGHT be relevant. If you can't figure that out, you probably shouldn't be an attorney.

Anonymous said...

Come on, the act of sex is NOT relevant to a claimant's ability to perform substantial gainful activity (unless there is PRW as a prostitute, which believe it or not, did come into vocational considerations at a hearing of mine once!). Such a claim by an ALJ would likely result in an AC remand. No need for personal jabs, however.

Anonymous said...

@2:10 - Sure it is. I'm a decision writer, and while it's rarely necessary to address a claimant's sex life in a decision, a person who claims to have 8-9/10 back pain but who has had a child during the period in question and is expecting another is probably, to some extent, full of it. That seems plain. And it's not an all-or-nothing proposition; it speaks to the grey matter inherent in credibility determination. The implication that it ought not even be considered makes very little sense.

Anonymous said...

The ALJ above is not talking about having a child when claiming back pain (which I would still argue is not indicative of the ability to perform SGA). He's specifically mentioning the act of sex, which I fail to see could ever be relevant in a disability claim. Nothing gray about that at all.

Anonymous said...

"One is alleging she is so mentally unstable that she cna't take care of herself, but feels that she can take care of children? May go to credibility to say the least."

If she's so mentally unstable that she can't take care of herself, she's probably so mentally unstable that she thinks having a child is a good idea in her situation.

I don't see how this goes to credibility, expect to the extent that it shows the inability to make rational decisions consistent with reality.

The grandparents end up with these kids.

Anonymous said...

I would also be interested in seeing the neruoscience behind sex in this situation.

Does the act of sex act as a reliever of chronic pain situations such as chronic back pain given the neurochemical cascade that results from it?

People go through surgery to relieve pain, so if sex relieves pain, then it would be an expected attempt at pain relief.

Sounds like a good neuroscience Ph.D. thesis.

Anonymous said...

Or as a Judge friend of mine told me. "This woman is 32 years old and has 10 children. She tells me that there is no position she is comfortable in." "I about screamed out, Baby, I know one position you seem to be pretty damn comfortable in".

Can you see a credibility argument derived from that??

Anonymous said...

Wow. So let me get your argument right, Anon 4:35, 4:27, and 2:28, and take it to its logical conclusion. If a person with a disability has sex during the pendency of a claim, even if only rarely, you are in favor of prying into the intimate details in a disability hearing, something that will embarrass and humiliate the claimant, and perhaps cause them real mental and emotional harm if they have a mental disability and were subjected to non-consensual sex. Then you will persecute the claimant for it by attacking their credibility. The logical conclusion of your argument is a no sex and no children rule if you want to get disability benefits. If you don't see how wrong that is then you've got a problem much worse than the claimants you're critiquing.

Anonymous said...

Forget about credibility, having children you can't care for should be a criminal offense punishable by law.

Anonymous said...

I am the ALJ at 12:15 who indicated that, in a claim involving allegations of an inability to attend to ADLs, the claimant's attempt to get pregnant is relevant. It is not because she's having sex. It is because her allegations of not being able to take care of herself are inconsistent with wanting to, or believing she can, take care of a newborn infant. As another poster pointed out, it may be evidence of a lack of insight into her condition or a lack of judgment, or ideas of grandiosity that are a part of her condition. We don't know. It doesn't mean I am going to deny the case. it doesn't mean I'm goint to pay the case. In and of itself, it is not dispositive, but is going to be a part of the credibility determination. Clearly,(to me anyway)it opens up avenues of inquiry that need to be explored and, no matter what the representatives posting on this thread think, that makes it relevant. A good representative would know that and would address it via testimony and, one would hope, a medical source statement.

Anonymous said...

OK, I'll play along, since I'm the rep posting that my client's sex life isn't relevant. Since every time the client has sex it is an "attempt to get pregnant" as you state, as a "good rep" I'm supposed to elicit testimony about this fact? And to go even further, you want me to get a medical source statement from a doctor explaining my client's desires to "attempt to get pregnant?" Again, what does my client's "attempt to get pregnant" have to do with her ADLs? I stand by my point that not only is this irrelevant, it would be humiliating to my client, as mentioned by a previous poster. Not to mention, it's a bit creepy.

Anonymous said...

If you don't understand the difference between having sex and attending medical appointments to address fertility, then I suggest you find a different line of work.

Anonymous said...

Ok, pass a rule that treats sex and pregnancy like DA&A. Have decision that read that, while the claimant is continuing to engage in occasual sexual acts, these acts are determined not to be material to the performance of SGA. Right? Yeah, that was sarcasm.

To those who say sex and attempts at pregnancy are relevant and should be explored, do you expand your line of inquiry to the claimant's cultural systems? Do you make an analysis that the Yemini woman in front of you would face harsh social and emotional repercusions if she has the ability to have children but refrais because of pain? Do you inquire into their religious beliefs regarding children? Do you ask them what positions they use to minimize the pain?

Probably not. But all of those things would be relavant to their credibility if you put the issue on the table. Go all in or stay out of the water, no dipping a toe. Best to keep your feet dry.

Justin

Anonymous said...

This whole line of comments is pretty ridiculous. I work for SSA. While I have no desire to know anything about the sex life of any of the claimants I encounter, I think almost any aspect of the claimant's life could be potentially important to credibility. My personal feeling, right or wrong, is when you are asking for the government to support your inability to work, you need to be prepared to have your daily practices put under a microscope. Is someone's sex life relevant? In some cases it may shed light on an issue, in others it may not - who can make an "informed" decision without all the information?

Anonymous said...

So, because you're asking for the govt "to support your inability to work" SSA is allowed to ask anything of you, no matter how irrelevant, shameful, or embarrassing? Got it.

Anonymous said...

ANON 10:45 -- have you ever attended a disability hearing or read through medical records and disability paperwork. Claimants quite often freely share a lot of personal and potentially embarrassing information on their own; there have been numerous occasions where I have read or heard things I would rather not have known.

I am not saying the government should or has the right to pry into a person's most intimate details, but there are situations where it is necessary to ask deeply personal questions; for example, about abuse history. I would never ask about a claimant's sex life unprompted, but if there are comments in the file that suggest activities or subjective beliefs that seem inconsistent with the alleged disabilities, it is fair to ask, if only to give the person a chance to explain the discrepancy.

Anonymous said...

Yes, ANON 10:59, I've attended thousands of SSD hearings over my career. I, too, am surprised and often saddened by the intimate details I read in my clients' medical records. And you are correct in saying that sometimes testimony is needed at a hearing to clear up discrepancies in the record, even concerning embarrassing events. That's why my client hired me to represent him/her. However, a line of common decency needs to be drawn. I'm protective of my clients and have had hearings where questioning from ALJs and MEs were clearly meant to demean them. As their attorney, I don't stand for those questions.

Anonymous said...

@11:19, I'm the 2:28 decision writer from yesterday. I don't think a view that sexual activity could be relevant is tantamount to crossing a "line of common decency." I understand your predisposition to read some of the above comments in that light; you're a claimant rep, and you rightly think as one. However, as noted by the ALJ above, sexual activity is not a dispositive consideration. It's merely one item on a very long list of items that could potentially, depending upon the circumstances of a case, be relevant in reaching an informed, reasonable decision. I virtually never have occasion to reference a claimant's sexual activities, though they are often reflected in medical records, sometimes quite extensively. I can't tell you how many times I've completely ignored a man's documented E.D. or a lady's menopausal complications because they simply didn't matter--this is the norm. On rare occasions, however, it's relevant. Is that a private matter? As a general social topic, sure. But this is a narrow universe in which we all exist, and some social norms take a backseat to the necessities of the process. I'm frankly a little surprised at the caustic presumptuousness and interpretive liberties taken in response to mine and other comments. Clearly, bearing in mind the larger issue Charles raised, there is no clear "right" or "best" solution, and I'll be the first to agree that this proposal is probably too vague to work well, as written.

Anonymous said...

Correct.

Anonymous said...

The fact that credibility is such a large issue in many ODAR hearings means that certain information of a personal nature may become relevant when ordinarily it is not. As an attorney or representative, you are free to instruct your client not answer any question which you deem unnecessarily intrusive or irrelelevant. Hearings are recorded. If you think an ALJ or expert is pursuing a line of questioning in order to demean your client rather than to flesh out issues, you are also free to make that case to the powers that be.

Anonymous said...

Sex has absolutely nothing to do with disability, zero, and zilch. What in the world is this thread about? The definition of disability is inability to engage in any substantial gainful activity because of a medically-determinable physical or mental impairment(s) that is expected to result in death, or has lasted or is expected to last for a continuous period of at least 12 months. Yes that involves a universe of work and medical specifics, but not equating disabled individuals who engage in human behavior as somehow not “credible.”
Where in the world do you find sex in that definition? And if you do, you have lost perspective of the process. I agree, should any ALJ take a line of questioning about a claimant’s sex life, a representative should take the complaint process and expose the inane, intrusive and irrelevant not too mention unprofessional behavior in a non-adversarial hearing concerning benefits. I find it disgusting that the issue is actually argued by someone in adjudicative position. Only someone numbed by bureaucracy or embittered by others receiving benefits could argue they have any right to ask or inquire into the sex lives of claimants, beneficiaries and recipients.

Anonymous said...

3:34, take a breath, go back and read some of the more measured comments above, and you'll see that your indignant questions have actually been addressed already. As I read them, no one's comments indicate that "sex = not credible." Nor has anyone suggested that it's some sort of default part of their analysis. But I can see where somebody claiming disabling osteoarthritis of the hips and degenerative disc disease of the lumbar spine may seem a little suspect when producing copious offspring during the same period. It's not about sex, per se, but about the performance of, well, repetitive physical activities on an ongoing basis. Your pronouncements that someone who disagrees with you has "lost perspective of the process," been "numbed by bureaucracy," or been "embittered by others receiving benefits" is presumptuous and baseless.

Anonymous said...

If I were a decisionwriter or ALJ, I'd focus my credibility analysis on addressing the factors in Social Security Ruling 96-7p rather than going down this tangential "sexual activity or getting pregnant as indicative of greater capability than alleged" line of inquiry. Too many decisions don't even address the factors required by the regs and Rulings and focusing on these types of prurient issues is just asking for trouble. Unless a person is having sex or trying to get pregnant 8 hours a day, 40 hours a week on a sustained basis, these activities are just inconsequential to whether that person could perform gainful, competitive full-time work. In the vast majority of cases, there is more than enough in the record from which to glean credibility as contemplated by the regs and Rulings without having to subject a claimant to this kind of questioning. On the duty of candor, having a regulation that requires it would make it easier to prosecute those who knowingly breach it if SSA discovers it, while for many reps, it will not change what they've already been doing if they are acting ethically.

Anonymous said...

Re ANON 5pm
Of course the above discussions infer that sex plays some role in credibility. That is flat wrong in my opinion. And yes people with DJD can be disabled and have sex. “repetitive physical activities on an ongoing basis” – do you really want to go there, should you? If so, I suggest that is demeaning. And, my pronouncements are neither presumptuous nor baseless because I have seen adjudicators at all levels engage in this type of behavior, including questioning claimants at hearings about their sex lives, number of partners, etc. when the issue was immaterial and the intent was prurient and condescending. My point remains, if a disabled individual has sex it is not the business of an adjudicator or anyone reviewing a SSA claim or appeal. Period.