Feb 10, 2015

OMB Clears Proposed Rule On Submission Of Evidence

     Just in time for tomorrow's hearing before the Senate Budget Committee, the Office of Management and Budget (OMB) has cleared Social Security's proposed rule requiring the submission of all evidence in Social Security disability claims. We can only hope that the agency made dramatic changes after this was originally published because the original proposal was completely unworkable.
     After OMB clears a regulatory proposal, the Commissioner has to sign off on it before it is published in the Federal Register. Typically, the Acting Commissioner has been taking a few weeks to review these before signing off on them. However, she can sign off immediately if she chooses. So far, the Office of Federal Register doesn't show the receipt of the final regulations. After publication, new regulations typically go into effect in 30 days. 
     I cannot emphasize too much how unworkable the original proposal was. Requiring the submission of "everything" sounds great but imposing this requirement without defining what "everything" means could bring about the collapse of representation of claimants. That would not just be bad for attorneys or their clients. The Social Security Administration is not prepared to cope with hundreds of thousands of unrepresented claimants, nor, for that matter, is Congress since that's where claimants turned before attorney representation of Social Security claimants became widely available. I speak from experience. I was around when there were few other attorneys doing this kind of work.


Anonymous said...

I sure hope they are cutting off the submission of evidence 10 days prior to the hearing as has been proposed.

Anonymous said...

I could not disagree more about closing medical evidence 10 days before. It is near impossible to get some doctors' offices to send medical records. Large bureaucracies are even worse. (Looking at you, VA.) It's an injustice to a claimant to say she can't submit potentially supporting evidence simply because it is too late.

Anonymous said...

Charles, we've been over this--you're concern trolling and/or handwringing because (my guess) you don't like the 10-day closing rule and because you seem to want to carry water for reps who don't submit unhelpful evidence.

We all know with pretty good certainty just what SSA means when it says you must submit all evidence. We definitely know what SSA is going to spend resources going after/evidence SSA will be peeved about not receiving (i.e., unhelpful MER, especially MSSs), and we definitely know what superfluous crap SSA is most definitely not looking for (duplicates, the meaningless nurses notes that accompany ER/hospitalization notes, etc.).

Don't be a troll, use your best judgment. Anyone who knows anything about these new rules knows exactly what prompted these changes and how SSA is going to use the rule.

Anonymous said...

You've had how many months to secure the evidence? To enlist SSA to help you when faced with uncooperative sources? If it's about more recent Tx notes, what does the last month or two of Tx tell us that the rest of the evidence for the bulk of the PIQ doesn't?

I see and sympathize with the few tragic cases that will result from this rule, but the rule will incentivize reps/claimants to have and bring their strongest cases forward on the date of the first hearing and thus prevent a lot of needless and costly remands because a rep suddenly came up with that really good piece of MER or MSS just before/after the hearing (especially the cases where the evidence was submitted with or after the request for review to the AC). Also, the rule will prevent all of the significant amount of proffering ODAR has been doing lately, which REQUIRES another hearing if the evidence didn't come from the claimant/rep and they ask for one (and the ALJ isn't issuing a FF decision).

You all on the rep side don't want to hear it, but at some point SSA's interest in administrative efficiency with regard to multiple hearings (due to proffer issues and remands) outweighs a claimant's right to have a record held open seemingly forever, especially considering there is an already-existing remedy for post-hearing evidence in the form of reopening prior determinations/decisions (imperfect and not ideal as it may be).

Anonymous said...

*a great deal of the proffering, not all. Many times the new evidence was sought out by the ALJ.

Anonymous said...

This is designed to:
1) force reps to submit reports (like IME's) that are unfavorable to the claimant;
2) put a little more resposibility on the rep to obtain and submit evidnece, so SSA is not left to do it all; and
3) eliminate the common practice of withholding evidnece at the hearing level so that I can be used to support an AC remand/determination.

As noted in other comments, we all know what is relevant and what isn't. There may be some room for interpretation on the margins. If you have a question, just submit it and let SSA decide. Knowing about evidnece and not submitting it will get you in trouble. Submitting too much evidnece will NOT get you in trouble.

With the ability to store records electronically, the issue of large file size is moot. Additionally, electronic records allow for quick visual scanning for relevance.

The sky is not falling. This is a reasonable rule and long overdue.

Dan Smith said...

Even if the exact structure of these regulations is imperfect, I believe the underlying problems that spurned them had reached crisis level. Claimants are waiting years at this point for a hearing, and their reps can't even be bothered enough to submit a full evidence file in time for their belated hearings? They need to wait even longer so that their reps can get records after the hearing?

It made no sense when I was an associate at a volume practice and it makes no sense now. (In fact, my complaints about our inability to update records in time for hearings was a big reason i didnt last long at said volume practice).

This is an issue I've been passionate about for a long time and I've blogged about it multiple times. ( http://dansmithattorney.com/2014/11/01/194/ ) I was hoping this was something reps could straighten out amongst themselves, but frankly any action is welcome at this point. Considering the complete market over-saturation of disability reps, I'm not concerned about unrepped claimants (though i can't speak for every region).

Annie42 said...

Really, you think reps withhold evidence so they can submit it to the AC? This old canard has been discredited many times in many ways. No one with any level of competence does that. Stop saying things that are just not true.

Anonymous said...

As y'all portray it, it WOULD be reasonable. But, you bureaucrats need to develop consistent rules across all agencies. ODARs need only give claimants and reps 20 days notice of a hearing date. HIPPA allows a treating source to take 30 days to fork over records. More and more clinics and hospitals are stubbornly waiting until 30 days before they send us copies. Thus many copies don't arrive until the day or two just before the hearing.

We can probably get all records if given 70-90 days notice of hearings.

If you can issue a subpoena with teeth, it could help the situation.

Anonymous said...

I have to ditto 2:08. It also appears SSA would have to make a statutory change to forbid claimants from submitting evidence at the hearing. If any pre-hearing evidence production deadline in included in the new rules, it is likely to be shot down in court.

Anonymous said...

@ 1:53...unfortunately, PII issues prevent me from giving you specific information. But I assure you, I have seen files where evidnece is withheld and then submitted to the AC.

@ 2:08...I don't think this is really a big issue. If you arrive at a hearing and note that you requested records two weeks ago and would like the record held open for 2 weeks, I have yet to meet an ALJ that would deny that request.

Anonymous said...

I don't see where this is the doomsday scenario that Charles describes. Why would this prevent attorneys from representing claimants? The 10-day rule could be problematic, but as long as the ALJs have wriggle room to allow exceptions where the attorney can show that meds were indeed ordered at a reasonable time before the hearing, then it shouldn't be an issue. The only problem I see is if a treating doc throws their patient under the bus and returns a check-the-box RFC form with no limitations. The attorney or rep would then have the obligation to submit this form. With many ALJs just looking for reasons to deny cases, this would kill the case.

Anonymous said...

Anything can happen, including late submission of evidence that could have been submitted earlier. But no sane person would decide it is better to submit evidence where the odds of it resulting in benefits is almost nil when he could have submitted it when the odds are over 40%. No one can make a living being that stupid.

The comments in favor of the proposed rule are misguided. First, a decision denying benefits is binding through the date it is issued. Don't you see a due-process issue with saying you can't submit any evidence that you have been disabled, or become worse, during the 9 months it is taking me to issue a decision? So a decision precludes you from ever submitting any evidence for that period, and you can never seek benefits for that period again? Second, you have never actually tried to get medical records and opinions if you think that trying is the only thing required. Many times it takes numerous attempts to obtain it. Third, the posters have perhaps forgotten that claimants may get only 20 days notice. If they rush to get evidence, then don't get a hearing for 2 years, the ALJ will complain it is all too old to be useful. But you won't be getting many responses within 10 days.

But that isn't the biggest problem. While posters above seem to believe that they know what "all" evidence is, but what they believe they know won't matter. In my nearly-40 years at this, I have seen that you cannot be too paranoid when looking for possible misinterpretation of rules by angry people.

Anonymous said...

1:53 PM,

I'm not sure what percentage of attorneys are doing it, but there are some who have turned sandbagging into an artform. They submit evidence to the AC that the ALJ did not have an opportunity to review - often a medical source statement that purports to relate back to the time period before the ALJ. If the AC does not order remand based on the new evidence, then it's on to federal court, where some jurisdictions are more receptive to this tactic than others.

Anonymous said...

1) ALJs can always make exceptions to the 10-day rule (whether they are supposed to or not; once they hold a record open, SSA is surely not going to step in an undo that)

2) That comment about only 20 days notice of hearings...yeah, sure--that's the regulatory minimum. But I'm sure a quick glance over the data on the subject will show, as is usually the case, the vast majority of hearings are scheduled (at least the first time, but don't even get me started on all the postponements we give out because of REPS' unavailability!) MONTHS in advance. Also, what, are you worried you aren't going to get a hearing at all and don't bother to start tracking down evidence until you've gotten your hearing date set? Are you afraid the records are from MI5 and will self-destruct before the hearing if you get them too early? tl;dnr, you are using the rare circumstance vis-a-vis time between scheduling hearing and holding hearing to cover up for plain and simple lazy representation wherein the rep doesn't bother to get evidence until the last minute.

Dan Smith said...

It's frankly embarrassing that we as reps have neglected this aspect of our respective practices so much that the administration has to step in with a rule to keep us honest.

I have a warranty in my fee agreements (with a few qualifiers) that if my client's updated medical records aren't submitted in time for their hearing, I forfeit half my attorney fee. Any atty that does their due diligence could incorporate the same warranty into their fee agreements and render this whole issue moot.

Anonymous said...

Complete evidence is going to greatly affect processing times. More documentation means more review of the medical record, which means longer processing time. Regardless if a rep is part of the process or not, examiners are going to get data dumps. I have seen medical records that can run thousands of pages long. The folks that wrote this appear to have no operational experience.

I guess they are hoping to get what they pay for. I wonder if the DDSs with end up paying more for larger documents.

The unexpected side effect of this rule will be examiners not reading all the MER and ordering CEs.

Anonymous said...

If only you were real attorneys. In Big Boy Court, if the evidence isn't in prior to the hearing that is what we call T.S. You are screwed. We have to get the same records from the same sources for personal injury cases and guess what? We get off our butts and get them.. I hope the Agency is allowed to use Agency Attorneys to represent their side in the hearings. Wow, the reps will have to sharpen their game then as it will their "Burden" of proof, just like it says in the Regulations..

Anonymous said...

First, haven't read the latest version of this rule, but if it cannot stop N & M material from going to the AC (and how could it?), then what is the point? A better rule would be to require all reps to be attys licensed in Fed court in the jurisdiction where they rep claimants. Bye bye volume firms, who care nothing for making a record (or really the claimant for that matter).

Second, @ Dan Smith, bless your heart. You seem like a straight up dude, but maybe a bit naive. First, high volume + low overhead = more profit, pretty easy to figure out. As for "why wouldn't you submit the favorable MSS?" Well if you draw ALJ Pays 20% and doesn't give a turd about your MSS, then why submit it when you can get another bite at the apple and maybe draw ALJ Pays 70% on the next go round (yeah I know first remand goes to the same ALJ, but you never know). Also, ever hear of EAJA? Between EAJA and 406B fees there is more money in Federal court work than at ODAR (if you are not doing volume and are in a good circuit), often regardless of the merits of the actual case. Now is any of this very ethical, no but I don't see much happening to reps who play these games, so they will continue.

Anonymous said...

The rule says you have to inform SSA or submit "all evidence".

If you have unfavorable evidence, you need to submit under this rule. But you don't have to order and pay for evidence that you think is not relevant. The duty imposed is to "inform" and the ALJ can get it if he/she wants it. I don't see where this is going to be much of an increase burden for local reps.

§ 404.1512 Evidence.
(a) General. In general, you have to
prove to us that you are blind or
disabled. You must inform us about or
submit all evidence known to you that
relates to whether or not you are blind
or disabled.

Anonymous said...

I would note that the federal register states that: "However, as part of our clarification of your duty to inform us about or submit all evidence that relates to your disability claim, we believe we should expressly list this type of evidence with the other types referenced in current §§ 404.1512(c)(1)-(6) and 416.912(c)(1)-(6)."

Thus assuaging any fears that the definition of "everything" would be broader than it currently is.


Anonymous said...

5:16: I disagree that there is more money in federal court than ODAR. While we take some cases to federal court (although we are a high volume regional firm, we are licensed in the fed courts in which we have hearings), it is often better for the claimants and for the business to arrange new applications for our denied clients. Our fee contract allows us to petition a 25% fee with no $6K cap if the claim is remanded by the AC. Otherwise, we have many new claims awarded on new claims due to our clients' worsening conditions or advancing ages through the Grids. Even putting the ethical considerations aside, I see no good reason to w/hold a good RFC form to submit to the AC. This must be an urban myth or a tactic not normally used by the vast majority of reps.

Anonymous said...

5:16, concur wholly.

Anonymous said...

As 20 CFR 404.1512 is currently written, evidence includes "(3) Statements you or others make about your impairment(s), your restrictions, your daily activities, your efforts to work, or any other relevant statements you make to medical sources during the course of examination or treatment, or to us during interviews, on applications, in letters, and in testimony in our administrative proceedings;"

So now claimant's are going to have to inform SSA every time they write a letter to Mom telling her about how hard it is do do the laundry, cut the grass, and how depressed they are feeling. Or if Mom writes a letter to Aunt Judy telling her about all the hardships the claimant is having, that will now have to be disclosed.

Sure we can all sit here and say we know what the information the Agency wants is but there is nothing to stop the Agency or rogue ALJs from trying to push the new rule to the limit and make trouble for reps and claimants by enforcing the absurdity within it.

Anonymous said...

You think an ALJ trying to be that obstinant is going to get support from his or her HOCALJ, RCALJ, or Bice when you and your claimant buck up? The concern trolling from reps is reaching epic heights these days.

Anonymous said...

11:52, another insider here. You must be joking because everyone knows that HOCALJs don't do anything to line ALJs who act up. The only time HOCALJs will do something to a line ALJ is when they not producing enough.otherwise they look the other way in 99.9 percent of the cases.

Anonymous said...

@ 1:10

I hope you're not a line judge relying on this old practice continuing. Bice's (ODAR-wide) swift response to Zahm's email, coupled with a few new memos and mgmt calls, as well as recent anecdotal experience, all suggest SSA is: 1) being more careful about its HOCALJ hiring in an effort to make sure HOCALJs are going to toe the agency line; 2) talking a lot about backing up writers/mgmt when ALJs' instructions, etc. are not policy compliant (even merely saying these things signifies a huge departure from past practice) and actually doing it in practice.

SSA is finally standing up to ALJs on some of the long-standing...discretion, we'll call it...they've improperly been afforded for so many years.

Anonymous said...

4:25, 1:10 here, No I am not an ALJ and I hope that you are correct that long due change is coming down the pike. But I have been around a long time and, while the window dressing looks good, the ALJs all protect each other, even when their brothers/sisters in black are in the wrong. Think of the thin blue line. The actions either have to be truly egregious or the bad actor is a low producer. That's my story and I'm sticking to it.

Anonymous said...

Isn't a HOCALJ just an ALJ who doesn't want to be on production anymore?

Anonymous said...

just because they aren't under strict production requirements doesn't mean they won't enforce them if they are told to do so and their office is suffering because of the poor performer. But frankly, even then there are a lot of HOCALJs who don't berate their line ALJs for anything. It is the thin black line mentality and they blame everyone but the ALJs for the office problems. There is not a lot that is going to be done to a HOCALJ because the positions are sometimes very hard to fill depending on how difficult the office is and where it is located. It is a problem that will never be completely resolved.

Anonymous said...

In 38 years, I have NEVER had an ALJ get off his duff and obtain any medical records, even though a release is required to be submitted to them.

I have never had a hearing in which I was not called on the carpet if every remotely mentioned record was not obtained at the expense of my impoverished client to satisfy the curiosity of the ALJ.

If we have a record, it is submitted. The problem we all encounter is when records are not produced to the client or us in a timely manner. No amount of bureaucracy paranoia by SSA can fix that.

While new rules are being made for the convenience of the almighty, perhaps there should be one providing reimbursement for costs incurred in obtaining and updating records DDS neglected to get.

Or, perhaps interest to the clients on the back due money wrongfully withheld by DDS rubber stamp denials.

Anonymous said...

We are routinely developing records DDS failed to even request despite those being disclosed by the claimant.

We have more and more "fishermen" ALJs these days who love to go on fishing expeditions through claimant's records and are now requesting that we chase down otherwise irrelevant or untimely records just so they can comb through them to try to find a nugget of information to discredit the claimant with.

The Agency has become incredibly paranoid as of late. Just look at all the fraud notices that are now appearing on nearly every document sent out.

Dan Smith said...


I don't think I've ever had an ALJ ask to obtain a record that wasn't clearly relevant to one of the claimant's case theories. (Although as with everything at ODAR, maybe that's just a result of different tendencies at different ODAR offices). It doesnt make mich sense why they would either, since doing so would throw the case into post-hearing development and add a delay to the decisions they're pressured to churn out.


Why do you expect the ALJ to order records for you? We reps are the ones collecting fees after all, the least we can do is obtain a complete medical record prior to the hearing. As for doctors who are obstinate with their records, that's never been a problem for me so long as i notify the judge as such well ahead of the hearing. They'll either issue a subpoena ahead of time or decide the records themselves arent crucial. If you wait until the day before the hearing to tell them about the doctor whose records are missing, they tend to be, well, less helpful....
I agree that there should be consequences/remedies when DDS fails to obtain medical records at the inital level. Some states' DDS office are worse than others. I've confronted a few adjudicators in particularly egregious cases and none seemed concerned about their responsibilities as per the regs.

Greg said...

This last minute approval regarding the SS ruling on submission of all evidence has the makings of a bureaucratic nightmare. Although they claim that with electronic transmissions, etc, they can handle the increased workload, these were the same types of claims made by the Obamacare supporters before that infamous rollout.