Proposed Regulations On Duty To Submit Or Notify -- Unworkable

     I have been taking some time to review Social Security's proposed regulations that would impose a duty on disability claimants to either submit or notify Social Security of all evidence that relates to their disability claims and, if they do obtain medical evidence, to submit the evidence in its entirety. I've already posted about the problems involved in demanding that medical evidence be submitted in its entirety.  I'll come back to that subject in another post but I'm writing today about the proposed duty to either submit or notify Social Security of all evidence. It's amazing.

     The problem with this proposal is that it's completely open ended. All that is said is that "You must inform us about or submit all evidence known to you that relates to whether or not you are blind or disabled." What does "all evidence" mean? What does "relates to" mean? The proposal says that "Evidence is anything you or anyone else submits to us or that we obtain that relates to your claim." That's not helpful since it only discusses evidence that Social Security already has, not evidence that Social Security doesn't even know about. However, the proposal goes on to say that "Evidence includes, but is not limited to" and then gives a list of certain things such as medical reports or statements that the claimant has made about his or her medical condition without any limitation as to whom the statement may have been made to.

     Immediately, there's a problem with this definition of evidence, to the extent that it is a definition. The average claimant will have talked to many people about his or her medical condition and not just doctors -- family members, friends, neighbors, co-workers, strangers met in a doctor's waiting room, a pastor, etc. When people talk they constantly make statements. On its face a requirement that the claimant, without being asked, reveal anything that he or she has ever said to anyone about his or her medical condition or anything else that might relate in any way to their disability claim is impossibly overbroad. No one can possibly comply with this.

     But the proposal is even broader than this. The "definition" of evidence says that it isn't limited to statements the claimant has made. It extends to knowledge that the claimant has. If the claimant knows something that "relates" in any way to their disability claim, they must, without being asked, disclose that knowledge to Social Security. Let me list some pieces of knowledge that a claimant might possess and ask which of these you think the claimant should be required to reveal to Social Security without even being asked:

• Claimant was convicted of driving while impaired eight years before becoming disabled.
• Claimant alleges disability due to depression. Claimant was sexually abused as a child. She has not revealed this fact even to her psychiatrist.
• Claimant was sent for a Functional Capacity Evaluation (FCE) by the insurance company defending his workers compensation claim. (Different vendors have tried to sell Social Security on their FCE products. Social Security has always declined and has explicitly said that it regards FCEs as unreliable.)
• The claimant goes to a new age healer who uses crystals to adjust the claimant's chakras. 
• Water aerobics were recommended by one of the claimant's physicians. Claimant attended briefly.
• Claimant had some massages in hopes of easing her back pain. It helped a little but it was too expensive to do regularly.
• The claimant had a conversation with her doctor about whether she should stop work. The doctor encouraged the claimant to keep working, saying that he thought she would get better. The claimant decided to stop work anyway. There is nothing about this conversation in the doctor's records. (Is this a patient-physican privilege issue? Can there be any right to patient-physican privilege in a Social Security disability claim?)
• The claimant has a meeting with his pastor and reveals his anguish about why God has afflicted him with so much pain. He wonders whether he is being punished for his past sin of drug dealing. The pastor says he doesn't think that God is punishing him and urges him to pray for forgiveness of his sins. (We have pastor-penitent privilege as well as self-incrimination involved if the claimant has to reveal this.)
• On some days the claimant feels like he could work but most of the time he feels like he can't.
• The claimant does some babysitting for her grandson but not on a regular basis.
• The claimant, who has a bad knee, occasionally tries to take a walk. He doesn't get far.
• The claimant suffers from bipolar disorder. Sometimes he goes out to eat with his father and mother.
• The claimant is taking an online class in hopes of becoming a computer programmer eventually.
• Claimant smokes marijuana from time to time.
• Ten years ago, the claimant was accused of abusing her infant son. Ultimately, the charge was dismissed.
• The claimant visits his sick mother on a regular basis. He helps with some of her housework.
• The claimant went bowling once since becoming disabled.
• The claimant went to the emergency room after accidentally cutting his hand. The wound was sutured and healed without incident.
• In the course of an argument, the claimant's father in law said "You're not sick. You're just lazy. What kind of man won't even try to support his wife and child?"
• The claimant recently baked a cake to help celebrate her daughter's birthday.

     To be honest, though, your opinion or mine on whether any one or all of these should be revealed is irrelevant. There is always someone who will think that any one or all of these must be revealed sua sponte, to use a legal term. As long as anyone thinks they're relevant, the claimant is at risk of civil penalty or criminal prosecution for failing to reveal any one of these. It puts the onus on the claimant to identify anything that might affect his or her chances of being approved for Social Security disability benefits and to reveal that information to Social Security even without being asked.
     In ordinary civil litigation, there is discovery. In discovery, the party you're suing or who is suing you has the right to ask you questions or to ask you to produce documents in your possession that relate to the case. However, your adversary has to pose the question or make the request for some specific document or category of documents before you have an obligation to respond. There is no open ended, undefined responsibility to identify and turn over everything that might conceivably relate to the lawsuit. Here, Social Security is making an amorphous demand that the claimant identify anything which could affect their case and turn it over. If the claimant fails to identify something or thinks it's irrelevant when Social Security thinks otherwise, the claimant may be punished.

     There is a special problem for claimants represented by an attorney. The proposal says that it is not intended to abrogate the attorney-client privilege. The problem is that while I, as an attorney, cannot reveal a confidence given to me by a client, I also cannot continue to represent a client who is engaging in continuing illegal behavior related to the representation. If the claimant's duty is to reveal anything that anyone might conceivably consider relevant to consideration of the disability claim, the claimant must reveal to Social Security anything that he or she tells me, since, clearly, either I or the claimant considered the information I received to be relevant to the case. If the claimant refuses to turn over to Social Security whatever they have told me, I have no alternative but to withdraw from the case since otherwise I am participating in what is arguably an ongoing fraud. As Social Security correctly points out in this proposal, merely telling an attorney something doesn't exempt a client from ever having to reveal that information. Under this proposal, telling it to an attorney just identifies it as something that should be revealed to Social Security sua sponte. My opinion is that this proposal effectively removes not just the attorney-client privilege but any meaningful right to legal representation.
     You may rightly say that Social Security couldn't possibly have intended anything as extreme as what I'm describing and you'd be right. They just never thought through what they were proposing. Their only real goal was to get Republicans in the House of Representatives off their back. Unfortunately, it doesn't matter what Social Security thought it was doing. Regulations can have unintended consequences. Anyone considering this proposal, including Social Security, has to do a worst case analysis since no one can now know how such an expansive set of regulations would be interpreted.

     Social Security could try to limit a claimant's duty to reveal statements or facts but they actually say in the notice in the Federal Register that they wished to do the exact opposite because they wanted to "minimize the extent to which a claimant or his or her representative must make subjective judgments as to the legal relevance of particular evidence." They did this by making the obligation limitless. The lack of limits isn't an accident; it's intrinsic to the design of the proposal.
     If Social Security does think up some limits on the duty to reveal, is it appropriate to just go immediately to final regulations without allowing the public to comment on the limitations first? Aren't those limitations so integral to the proposal that it is impossible to offer fully meaningful comments on the proposal without knowing what those limitations are?