Social Security Administration Issues Final Regulations on Submission of Adverse Evidence in Disability Claims

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Last February, the Social Security Administration proposed new regulations requiring disability claimants and representatives to disclose all adverse evidence to their disability case. This week, they finalized those regulations, and now require disability applicants or their attorneys to give the Social Security Administration any and all information regarding their disability — even if the information has the potential to hurt their case. The new regulations will go into effect on April 30, 2015.

There are only two exceptions to this rule. The first is any material subject to attorney-client privilege, and the second is the lawyer’s “analysis of the claim,” which is basically any materials a representative prepares in anticipation of a lawsuit.

While the responsibility to submit this evidence falls on the disability applicant, it also says the attorney must “act with reasonable promptness to help obtain the information or evidence that the claimant must submit under our regulations.”

This also applies to opinions from medical providers. Many attorneys will ask treating doctors to write letters or complete questionnaires about their clients’ impairments. If a doctor sends these documents to an attorney, the representative is required to forward them to the Social Security Administration, even if the doctor doesn’t necessarily support the patient’s disability claim. However, if the attorney verbally consults with their client’s medical provider and takes notes, those notes would be protected from disclosure under attorney-client privilege.

Disability applicants and attorneys don’t necessarily have to gather and pay for records; that responsibility is still the Social Security Administrations’, rather, they must let them know that these records exist on their Social Security disability application, and must submit any documents they have already gathered.

How exactly this will affect Social Security disability cases remains to be seen. Will applicants be punished because they failed to tell the Social Security Administration about something they thought was irrelevant to their case? Will attorneys be subject to State Bar sanctions if they follow the Social Security Administration’s directions instead of their clients’? These are just some of the problems these regulations could present claimants and their representatives during the disability approval process.