Let’s say I’m interviewing a client and ask him or her, “Do you get any exercise? And the client answers, “Yes, I get on my exercise bike for 15 minutes a day.” Does this relate to the disability claim? Is my client obliged to tell this to Social Security? Am I obliged to force my client to tell Social Security such information?
If I am obliged to force my client to reveal such things, have I been turned into Social Security's investigative agent? Should I just stop asking my clients any questions? Can a claimant have effective representation if this is the standard?
22 comments:
What are the claimants's "hypothetical" conditions?
Um, isn't this attorney client privilege? If its not, then we probably need to start never talking to our clients.
Following up on 10:09's thread, whether it "relates to" the disability claim depends entirely on the impairments and functional limitations alleged. If the claimant is alleging physical limitations, then the frequency and duration of exercise is almost certainly relevant. If the claimant is alleging mental limitations that sap him/her of the motivation to do anything, then it's relevant. To borrow a common example, I think most reasonable people would agree that exercising on a bike for 15 minutes each day is relevant in the case of a claimant who alleges that he/she is unable to even get out of bed several days per month.
As to the larger point, the notion that you are "forcing" your client to reveal incriminating information and should stop asking questions is absurd. You are not breaching any professional or ethical obligations by operating within the parameters of the Social Security Administration's rules of representation. As a Social Security attorney, you are judged within the context of the rules that you are bound to follow. Although the system may at times seem adversarial, it is not. Your function is not to "hide the ball" from the big bad agency; it's to take the facts as they are - both good and bad - and use your knowledge of regulations, rulings, and case law to achieve the best possible outcome for your client given those facts. In that regard, "effective representation" in the SSA context means making lemons out of lemonade. It does not mean advising your client to clam up about daily activities, and it certainly does not mean red-flagging unfavorable evidence and removing it from the file.
You can't have your cake and eat it, too. You can't claim the benefit of the ALJ's "duty to develop" (which certainly would not exist in an adversarial system), yet disclaim any and all responsibility to assist in that process. In your scenario, don't try to hide the fact that your client gets on an exercise bike for 15 minutes; instead, try to explain why getting on the exercise bike for 15 minutes doesn't equate to the capacity for full-time work.
From the responses by SSA to comments in the final rule.
" Claimants do not have to memorialize statements made to
others or disclose the names of all
people with personal knowledge of their claims, unless they would like us to consider that information."
I think that answers the question.
Sounds perfectly reasonable
@ 10:53...agreed 1000%
reps are basically assistants to help a claimant through the process. Every time I hear them talk about the "legal" aspects of their job I want to laugh (btw, I am a licensed attorney).
@ 1:15 PM While there are lots of reps out there who are just along for the ride, there are also many of us who do actual legal work, like creating a record for appeal, cross examining experts, presenting legal arguments to the ALJ, AC and federal courts.
If you agree to not lump us all together, I'll agree to not lump you together with all the other trolls on this site.
"reps are basically assistants to help a claimant through the process. Every time I hear them talk about the "legal" aspects of their job I want to laugh (btw, I am a licensed attorney)."
Um, this "process" involves Article III judges.
@ 10:09 and 10:53
You are both confusing relevance with relation. The exercise certainly relates. Indeed, everything the claimant does "relates" to his condition and therefore his claim. It is not limited to medical evidence, nor even relevant evidence.
As to the assertion of 10:53 that "You are not breaching any professional or ethical obligations by operating within the parameters of the Social Security Administration's rules of representation. As a Social Security attorney, you are judged within the context of the rules that you are bound to follow."
Uhhhhhhh, no. There is no such thing as a "Social Security Attorney" there are only attorneys. You are judged by your local bar and rules of professional conduct, which by and large are far more stingent than what SSA requires of reps.
And lastly, if you are not doing every hearing with an eye toward USDC, you should not be practicing SS disability, IMHO.
I think 11:12 AM nailed the answer. The Commissioner's own explanation of the changes in the regulations tells us that claimants do not have to memorialize statements made to others or even disclose the names of all people with personal knowledge of their claims, unless they would like SSA to consider that information.
@ 3:40 PM,
You're splitting hairs on the distinction between "relevant" and "related to." In the examples I gave, the claimant's activities are both related to AND relevant to the hypothetical disability claim. There's no need to get into a lengthy debate about relationship versus materiality versus relevance.
As for your claim that local bars are more stringent than what SSA requires, please show us a case where an attorney was disciplined for eliciting or providing adverse evidence without regard to whether the forum in which he/she was practicing had rules mandating disclosure. I highly doubt you'll find one.
@ 5:16
no I'm not. There is a very real difference between "relevance/materiality" which requires some kind of legal judgment as to the relative probative value of the evidence, and "relates" which does not require any evaluation of the probative value of the evidence. It is the difference between what you get in discovery and what gets into court. Indeed, if this were a distinction without a difference, as you seem to suggest, then why did SSA change the reg to "relates"?
As to the specifics of your second point, you are probably right, and this was not a good example for Charles' point, but the point stands that attorneys have other considerations than just what SSA says.
Here's a better example. C says to his atty: I murdered a man in reno, just to watch him die and never got caught. C applies for disability in part based on his antisocial personality disorder and anger/violence problems. Is the rep compelled to disclose the murder to SSA? It clearly relates to his ASPD and anger problems.
Part II: Then assume the C confesses after getting his decision. SSA finds out. Is the rep in trouble?
5:58,
I didn't say it's a distinction without a difference; I said it's a debate that we don't need to have in the context of Charles' example. If there's even a tenuous relationship to the disability claim, submit it. Argue about its significance at the hearing. Obviously, the regulation is intended to be broad, so comparing it to civil discovery is a pointless exercise. Try moving to strike an administrative record in federal court on the grounds that the documents in it aren't relevant or admissible.
@6:35
5:58 here. Not disagreeing with your ultimate argument (i.e. submit it if related - also agree with one of your original points that reps can't have it both ways in re: developing the record while also arguing about the failure to do so), but isn't that the point? This isn't civil court, but that doesn't mean we want to wade through totally irrelevant evidence. Who does this benefit? I think the point is that this regulation is just ridiculously broad for it's intended purpose.
Charles' example is flawed because, as you note, the evidence is relevant (can we all agree relevant information will always be related information?). A better example would have something irrelevant but related. But that is also the point, there was nothing wrong with the "material" standard. The fact that we have a hard time thinking of an example of something that is related but not relevant only highlights the fact that broadening the regulation was unneeded. If the point was (as I suspect) to force reps to disclose unfavorable evidence (in light of memos opinions that they could do so in some circumstances), all they had to do was make it clear that material evidence includes unfavorable evidence and this needed to be disclosed. I'm not sure broadening the reg to "relates" does anything other than cause confusion about what SSA now expects. Are we going to have to dig around for 20 year old WC, voc rehab, and VA disability files because it "relates"? Who wants that?
3:40 PM: I'm an attorney and the last thing I'm worried about with these rules is that I'm breaching some state disciplinary rule. I think the constitution's supremacy clause will protect attorneys from any problems in that regard.
From a comment response in the rule:
Model Rules of Professional Conduct
permit attorneys to disclose otherwise confidential information if ‘‘other law’’ or a ‘‘court order’’ requires the disclosure.29 These rules would constitute such ‘‘other law.’’ In addition, as one leading legal scholar in this area has noted, ‘‘none of the opinions’’ that
various State bars have issued on a
representative’s duty to submit adverse evidence in connection with a disability claim ‘‘suggests that an attorney may violate federal law because of a state bar ethics rule.’’ 30 Moreover, ‘‘Even if a state’s bar rules did not contain provisions similar to Model Rules 1.6(b)(6) or 8.5(b), the notion that an attorney could be punished by his or her
state bar for complying with federal law in a federal forum is antithetical to the Supremacy Clause’’ of the Constitution
and the Supreme Court’s decision in
Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963).31 In short, ‘‘there is no merit to the argument that an SSA rule mandating that an attorney disclose adverse evidence would subject an attorney to sanctions by his or her state
bar.’’ 3
The problem with the rule is that, in any given claim, there are literally thousands of facts which might "relate to" a disability claim. Add that to the fact that a majority of ALJs go #@$%! if you take more than an hour to present a case and you have a rule that may be genuinely impossible to follow. Don't get me wrong, I don't blame the ALJs for the time pressure given the workload, just stating a well known fact. When you have a rule that is impossible to follow, it is arbitrary.
Don't believe me? Take the case of a simple hand impairment. Think of the hundreds of things you use your hand to do in a given week. For each of those...How fast did you do the task? How long? With how much weight? In what range of motion? Every one of those facts relates to the disability. Does that mean every one of those needs to be reported? Are you committing fraud if you fail to do so?
Obviously, it would be impossible to report all those thousands of facts in the limited time SSA has available to consider a claim. Part of the advocate's job has traditionally been to winnow out of those thousands of facts those which are relevant and present the evidence in the very limited time the agency allows for such. "Relates to" purports to removes that.
It is hard to blame SSA when you have idiots like Johnson from Texas who has bullied his fraud agenda into regulations. Still, what they came up with is basically unworkable (no consensus above) and reveals the brain drain in the agency's policy branch. SSA will have to hit the conference trail with their shills selling this crap. And I am sure we will see SSA videos for reps - probably mandatory viewing next year for non atty reps.
Garbage in from Johnson and his republican ilk, garbage out from the Woodlawn gang. Perfect example of Washington hubris. This will help no one and slow down everyone
Probably overthinking it a little bit.
Related is kind of vague. Pretty sure the SSA is more worried about submitting unfavorable forms from doctors. Not too worried about a claimant disclosing "exercise" or not. But it's a relevant question. So probably have to disclose if asked.
A claimant and representative must inform us about or submit ALL known evidence that relates to whether or not he or she is disabled, subject to two narrow exceptions
• Must submit favorable AND unfavorable evidence, in its entirety, received from ANY source, unless the claimant previously submitted the same evidence or we instruct otherwise.
• The exceptions protect oral and written communications protected by the attorney-client privilege, and documents protected by the attorney work-product doctrine.
• “Relates” has its ordinary meaning -- anything with a logical or causal connection.
One big problem is that the new rule, as written, appears to require total disclosure of all observed actions that relate to the disability. Consider this example. A claimant requires a walker and each day takes 10 minutes to slowly totter one block down a busy city pedestrian sidewalk. In that 10 minutes about 100 people have to slow down, wait, and then part around her to get past. Undoubtedly, each of those 100 people have information that “relates to” the claimant’s disability.
We can all agree that it would be absurd to have to report the hundred people who observed the claimant walking down the street each day. Yet, as written, that is what the rule requires, with serious penalties for failing to do so. That is why, in the absence of better guidance which will hopefully be forthcoming from SSA, claimants and reps should be allowed discretion in how to reasonably present the information.
Agree that it's protected under attorney client privilege. But if you had medical records that included a note by a medical source that "patient reports she gets on her exercise bike 15 minutes a day," you couldn't withhold that page when faxing the evidence into the efile.
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