All Relevant Evidence From Any Source In Its Entirety

     You may have noticed the extensive comments on my post about Social Security's plan to make attorneys responsible for obtaining "all relevant evidence obtained from any source in its entirety" concerning a disability claim. I had posed the hypothetical of a claimant who had received treatment for infertility. Some people thought that was irrelevant to a disability claim. Others felt it was relevant. People had strong opinions of the subject. Let me lay out a few more common situations for people to comment on:

• Claimant had an admission to a detox facility to help him stop drinking. This was two years before his alleged onset date. Claimant denies he is drinking now.
• Claimant has a Functional Capacity Evaluation (FCE) as part of her workers compensation claim. Claimant was represented by a different attorney on the workers compensation claim. Remember, Social Security, itself, says that FCEs are unreliable.
• Claimant claims that he is disabled by arthritis in his knees and back. He is also seeing a dermatologist for eczema which he says is an annoying but not a disabling problem.
• Claimant was hospitalized. Her entire hospital record runs to over a thousand pages. Which of the following should the attorney obtain? 1) Admission summary 2) Discharge summary, 3) Nurses notes, 4) Physician notes, 5) TPR records (that's temperature, pulse, respiration), 6) Lab reports, 7) Imaging reports, 8) Consultant physician notes, 9) Other test reports such as pulmonary function reports, EEG reports, cath reports, etc., 10) Surgery notes, 11) Pathology reports. Does it matter why the claimant was hospitalized? If the obligation on the attorney is to obtain the record "in its entirety", how do you rationalize making exceptions?
• Claimant sees a chiropractor for a few months for treatment for back pain.
• Claimant was in physical therapy for his shoulder pain for three months. He then decided to have shoulder surgery but it didn't help. The alleged onset date is the date of the surgery.

     What I'm suggesting is that this proposal may sound good but it's going to be impossible to draft it so that it's enforceable. Taken literally, the "in its entirety" language is unworkable. There is also no way to adequately define "relevant evidence."

Astrue Trashes Democratic Candidate At House Hearing

     Former Commissioner of Social Security, Michael Astrue, testified before some House subcommittee yesterday. The article I'm getting this from says it was the "Health Subcommittee" but the House Ways and Means Committee site doesn't show its Health Subcommittee having a hearing this week. Anyway, Astrue was there to trash Donald Berwick, who is running for governor of Massachusetts. Berwick used to be head of the Centers for Medicare and Medicaid Services (CMS). Astrue was blaming Berwick for the terrible rollout of the Affordable Care Act.

     The big problem with Astrue's criticism of Berwick is that Berwick left his position as head of CMS twenty-three months ago. Maybe the early planning for the Affordable Care Act rollout was lacking but most of the rollout preparation happened after Berwick left office. How much of the responsibility can one legitimately lay on Berwick? It's also clear from the description of Astrue's testimony that Astrue simply has a personal distaste for Berwick. I don't know whether Astrue's feelings are justified but they are irrelevant to the question of responsibility for the rollout of the Affordable Care Act or Berwick's qualifications for governor of Massachusetts.

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.

Why Eliminating The Cap On Earnings Taxed By FICA Is A Great Idea In One Chart

Effect of eliminating  cap on wages subject to FICA. From Office of Chief Actuary, SSA

Why Chained CPI Is Almost Pointless In One Chart

Effects of beginning chained CPI in December 2014.  From Office of Chief Actuary, SSA

Veterans Day

Fee Payment Update

Social Security has issued updated numbers on payments of fees to attorneys and some others for representing Social Security claimants. These fees are withheld and paid by Social Security but come out of the back benefits of the claimants involved. The attorneys and others who have their fees withheld pay a user fee for this privilege. Since these fees are usually paid at the same time that the claimant is paid, these numbers show how quickly or slowly Social Security is able to get claimants paid after a favorable determination on their claims.

Month/Year	Volume	Amount
Jan-13	32,663	$96,690,734.65
Feb-13	35,508	$102,242,540.93
Mar-13	45,189	$130,690,281.94
Apr-13	33,178	$92,566,832.32
May-13	42,841	$122,781,135.03
June-13	33,954	$97,627,420.68
July-13	35,221	$103,494,644.97
Aug-13	46,695	$129,774,228.90
Sept-13	33,295	$93,251,401.56
Oct-13	31,811	$87,109297.64

NADE Issues Newsletter

     The National Association of Disability Examiners (NADE), a membership organization of state agency personnel responsible for making initial and reconsideration determinations on Social Security disability claims, has issued its Fall 2013 newsletter.