Mar 4, 2014

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?

24 comments:

Anonymous said...

The answer to your question...ALL of the things you identified are evidence. Submit them. Move on. Let SSA decide how to handle, manage, file, interpret them, etc.

The goal is to allow SSA to have a full picture of the claimant, not one that it curated by a rep.

Anonymous said...

In the current system, the rep is allowed to submit only the evidence that supports their claim for disability while actively hiding or withholding all adverse evidence without any fear of punishment. This is abhorrent. Submit everything we will decide if it's relevant. NOT you. If you'd like to earn your $6000 you will submit it in an organized manner. If you want to just dump everything in a big mess. That's fine too. Just don't complain when the average processing time balloons back to 3 years. And I'm a flaming lib btw so this isn't some political issue.

Anonymous said...

Does anyone doubt that the main impetus for this was the WSJ article that indicated that "America's by-far-and-away most successful disability advocates" apparently had a system in place to identify and withhold unfavorable evidence?

Anonymous said...

@9:18 and 10:17,
It doesn't appear that you have even considered the points that Charles has raised, and, as employees of SSA, you appear to have absolutely no concept of the legal ethics requirements of attorney-client privilege placed on attorneys by state bars. What your comments propose could result in mass disciplinary actions if claimants filed grievances.

I have seen ALJs use most of Charles' listed items, no matter how relevant, in their denials. Many of those items are "moral" deficits which have no bearing on actual disability, but I have seen moralistic ALJs deny cases because of clients' legal but socially offensive lifestyles. Unfortunately, the newer classes of ALJs who've been promoted from the belly of the beast and have never represented a real live client have become so indoctrinated that they also have no sense of ethical duties to clients which they supposedly learned in law school to pass the MPRE. A few years ago, several ALJs in our area began to enforce their own rule like the one proposed. The intention appears to be to turn the rep/attorney into an investigator for the ALJ, and it could result in a direct conflict of interest. I learned long ago NEVER to lie to a judge or hide evidence which one has an ethical obligation to disclose on discovery or at trial--doing so will poison the attorney's relationship with a judge forever more. However, I have a duty to my client to zealously represent his/her interests and to protect privileged information. The term "attorney" means one who is authorized to act in the stead of another (Black's Law Dictionary), and disclosing that laundry list of things that the bureaucrats think that they ought to have access to is a direct conflict of interest. In criminal court, if a suspicious judge asks something which the attorney cannot disclose, the "school" solution is to state that "counsel must stand mute." If this rule is adopted, that is probably what attorneys will be required to do to avoid state bar censure. Lucky non-attorney reps will not have such stringent requirements.

Anonymous said...

@1120
Your post touches on a huge problem with the disability process. It is completely inappropriate to invoke zealous representation in any facet of this process, your role as a rep is to make sure the claimant files all forms on time, shows up at the hearing, and gathers ALL of the medical evidence relevant to the case. Stop characterizing this process as winning/ losing. The key question is are you disabled? Yes, in a real court case, of course the issues of privilege and self incrimination apply. But not here in this non adversarial proceeding. If your client is denied, then invoke your legal training to make legal arguments as to why the decision was legally improper. But to use the excuse that it would be bad representaion to submit docuemtns form treating sources which clearly show that the claimant is a malingerer or liar or can do heavy work, needs to be legislated out of this process,

Anonymous said...

I can picture it now, ALJs will be asking attorneys to turn over their files to them at the hearing so they can determine whether any violation of the rules have occurred.

The obligations under this proposal are limitless and unmanageable. At what point does the ALJ become a fact witness in the claim and they too possess evidence that relates to the disability claim through their observation of the claimant. As representatives we would then need to call the ALJ as a witness to get their testimony on the record as to the nature of their observations. Would this not then disqualify the ALJ from hearing the case?

Anonymous said...

@ 11:20

I'm not sure you actually understand the disability hearing process. At the hearing level, all claimant's are alleging that they are disabled. Therefore, the things you think are irrelevant are VERY relevant. The entire question at the hearing level is "Is the claimant credible." Any evidnece can be used to establish or destroy credibility. It may not deal with their functional abilities, but it deals with whether they are credible.

Anonymous said...

Every applicant for disability, on day 1, already must sign multiple authorizations allowing SSA to obtain everything and the kitchen sink. This rule broadens the scope to include the toilet and dust bunnies, and changes how SSA will get all that. It seems designed to make representatives the investigative and enforcement arm of SSA, rather than the advocate and protector of their clients' interests. And so the regs which give claimants the right to representation with one hand, now want to take it away with the other. Compliance with the rule will exponentially increase the size of the files, the length of the hearings, and the time for deciding claims. How is that good for ALJs, or for the system generally? More importantly, how is it good for the truly disabled for whom the system was designed?

Anonymous said...

Charles,

You hide behind and wring your hands (for so many, long paragraphs...) about attorney-client privilege and other lawyer ethical concerns, yet lobbied for and enjoy your own State Bar's carve-out exception for candor to tribunals that is premised upon the fact that SS proceedings are not adverse and are different than most legal work and do not involve the same ethical concerns as most normal attorney work.

Go on trying to have your cake and eat it too. It's funny to watch you keep consistent rationale; it's a lot like reading one Scalia opinion on an issue of federalism concerning a behavior/product/etc. he doesn't like, then reading another opinion of his concerning the same federalism issues only applied to things he does like, with the opposite outcome.

Anonymous said...

The rule should simply be written to compel submission (or at least identification in the case where we can't obtain/find the records but believe they may exist) of all relevant medical and vocational documentary evidence known to the claimant and/or the representative related to the period of disability in question. The temporal limitation should be clear so as not to require disclosure of pre-onset records. Such a rule would be crystal clear and everyone would know where the line is drawn.
The rule as written requires that that a rep somehow identify, gather and report all sorts of other non-documentary evidence of varying kinds and is so overly broad it's absurd. If it were the language of a subpoena in a civil action, it would be quashed in a heartbeat. And it's not a question of zealous representation. It's a question of reasonable line-drawing in drafting a regulation. This rule provides no guidance. I don't know what I'm supposed to go out and get, but I do know that if a judge discovers something exists that I didn't think to obtain, I'm at risk of discipline.
The evil trying to be prevented is the practice of removing unfavorable evidence from medical records prior to submission. Requiring that we turn over documents/records that we know of that are on point is not objectionable at all. Many attorneys (including myself) believe it is already part of our ethical obligations under the bar rules regarding candor to the tribunal in non-adversarial proceedings. CTH's post has merit and is not just whining. However, he is not offering a counter-proposal. Clarifying the duty to disclose relevant medical or vocational records for a specified time is not an objectionable burden. If SSA wants us to disclose more, they need to get specific.

Anonymous said...

This is so comical to me.

If you attorneys can't manage to determine what evidence should be submitted as relevant to an ALJ determining your client's disability (while still following your State's rules of professional conduct), you shouldn't be practicing this or any other area of law.

Everyone here knows exactly what this rule is aimed at and how it will be enforced. Do you honestly believe SSA and its components are going to be looking to ring up a claimant or rep for failing to disclose a conversation the claimant once had about his back with a neighbor? Or that he had a DUI 10 years ago?

Give me a break, Charles. You, me, and everyone else with any knowledge of the situation knows this rule is for one thing only--getting reps to send in medical evidence or opinions they have received from treating/examining sources that suggests/states plainly the claimant is not disablingly limited. Period. It's about Binder and everyone else withholding any medical evidence suggesting ability.

Let's quit coming up with thought experiments and handwringing about the friction between zealous advocacy, privilege, and full disclosure that can occur at the theoretical margins of this rule. We all know exactly what SSA is asking for, and how they are going to enforce this. Quit concern-trolling.

Anonymous said...

Pardon me Mr. Judge, but I'd like to hold the record open to contact the neighbors again. It appears as if my client spoke to his neighbor last night and might has complained about his bunion. I'd like to examine the neighbor as a witness. If he does not cooperate with me, I will request a subpoena.

Anonymous said...

The proposed rule change is a stepping stone to making it an adversarial process. I think it is inevitable and Obama (who is with Reagan as the most anti-disability Presidents we've had) wants it that way.

Anonymous said...

@ 9:13 AM. If its going to become an adversarial system, so be it. We just need to have a fair set of rules for all to play by. If it goes adversarial then we have discovery, etc. Claimant's reps would not be the investigators for the Commissioner.

The proposal being made don't seem to be pushing it toward an adversarial system, they are just making things more adversarial!

Anonymous said...

@ 9:51
no, you wouldn't have to be an investigator. But you would still have the burden of proving disability.

In doing so, you'll obtain medical records. Those will be open to discovery and will have to be disclosed, regardless of whether they support disability or not.

Anonymous said...

A very simple solution is to fire all the ALJs. They are bloated overpaid judicial wannabees anyway. It is comical they wear robes. I say fire them all and have bench trials at district court. Heck, fire the Appeals Council too. Fire everyone at ODAR.

I hope someone at Fox News reads this. Get rid of the overpaid fat ALJs and save America some taxpayer dollars and have "real" Judges hear the cases

Anonymous said...

I will start an open petition on the White House website to fire all the ALJs. Lets call it the "return America to common sense petition". Really, ALJs get paid $165,000 a year! They aren't judges! They get paid more than magistrate judges at district court!

Anonymous said...

Seriously, fire them all. We can have hearing officers instead, pay them $60,000 year rather than $165,000 for an ALJ, save $100,000+ per year in taxpayer waste per overpaid ALJ.

Anonymous said...

Fire all the ALJs! Oh, wait. Somebody else said that already, and somebody else said that already, and somebody else said that already...

"Fire everyone at ODAR" was an especially inspired recommendation.

Bitterness, whining, chips on shoulders, etc. don't accomplish anything. Feel free to also say something constructive next time...

@4:46 may have been terse, but he/she probably made the most pragmatic point in this thread.

There is no perfect fix for the current situation, and I think we can all agree to that. The proposed rule, as written, has problems. But the current scenario in which reps can (and often do) simply (and dishonestly) keep quiet about unhelpful evidence doesn't work, either. Something's gotta give, somewhere.

Anonymous said...

You have no idea how often Reps keep quiet about unhelpful evidence. So stop pretending

Anonymous said...

On the other hand, if the civilian disabled were military veterans, they would get paid extra to submit a "Fully Developed Claim."

http://www.dav.org/learn-more/news/2013/retroactive-benefits-reward-veterans-filing-fully-developed-claims/

Imagine getting an extra year of SSDI.

"Veterans filing an original fully developed claim (FDC) for service-connected disability compensation may be entitled to up to one year of retroactive benefits."

Anonymous said...

The suggestion by bureaucrats to replace ALJs by hearing officers is laughable and would be a bigger waste of taxpayer money. Hearing officers are in the system for cessation cases and children's SSI cases. In 24 years, I have yet to see a hearing officer award disability--they can be replaced by a word processor spitting out denials. Put them back to work at some productive part of the system.

Anonymous said...

Interestingly enough I was recently chastised by an ALJ for submitting the Agreed Medical Evaluations from the claimant's worker compensations case. Judge informed me they weren't relevant and I shouldn't submit them. Excuse me, the 50 page report of a neutral doctor that reviews every medical record on the person for the last 10 years isn't relevant?!!! Judge only wanted the treater reports.

@greenspaceguy said...

I know of one case where an ALJ referred to the fact that the claimant went fishing one day. We appealed saying that this activity has no bearing on the claimant's function level or ability to perform substantial gainful activity. The decision maker makes reference twice to the claimant going fishing in an effort to show the claimant is capable of substantial gainful activity. We live on a lake and this activity consists merely of walking out our back door, grabbing a fishing rod from the porch, and walking 50 feet to the shoreline. He is still in full view of his family. The nature of this activity is mostly therapeutic and sheds no light on the claimant's ability plan, organize, or focus on work type activities. We believe that mentioning this activity twice sets a tone that is similar to using emotionally charged words like " malingerer” and “hypochondriac,” which is prohibited by Hallex I-2-8-25.