LIVING WITH A DISABILITY BY JERRY LEVINSON
In February of 2014 the SSA proposed regulations that required disability claimants to inform it about their disability claims. In March, it provided further clarifications.
The Social Security Administration (SSA or “Administration”) believes some (perhaps many) of the individuals who apply to it for disability benefits aren’t being completely candid or forthcoming in the evidence they submit to support their claims. Notably, the SSA finds such submissions are heavily weighted in favor of evidence that is favorable to claims, while evidence that is unfavorable to claims is virtually nonexistent.
The SSA also notes that “there have been allegations that when some representatives [of disability benefit claimants] submit evidence to us, they deliberately withhold evidence they deem unfavorable to the claimant.” And, based on the SSA’s program experience, it says it knows that it “does not always receive complete evidence.”
To fix the obvious shortcomings in the character and reliability of the evidence of disability submitted to the Administration under its then existing rules, in February of 2014 the SSA proposed regulations that required disability claimants to inform it about (or submit all evidence known to the claimants that relates to) their disability claims. The regulations contained exceptions for evidence protected by the attorney-client privilege and work product rule (shielding certain materials prepared for trial by a lawyer). But subject to these exceptions, these regulations included the duty to submit all evidence obtained from any source in its entirety.
The 2014 proposals also required claimants’ representatives to help claimants obtain required information or evidence.
FINAL CLARIFICTIONS
In March of 2015 the SSA released final regulations that adopted the 2014 proposals and also provided the following clarifications:
• Claimants must inform SSA or submit to it all known evidence relating to whether or not they are blind or disabled, specifically including evidence that may be either favorable or unfavorable to their claims;
• “Evidence” does not include oral and written communications between a claimant and his or her representative that is subject to the attorney-client privilege, unless the claimant voluntarily discloses the communication to the SSA;
• The final rules emphasize that it is the claimant’s responsibility to inform the SSA or submit to it evidence relating to whether or not the claimant is blind or disabled. Additionally, when a claimant submits evidence to SSA from another source, they must submit that evidence in its entirety. For example, if a claimant obtains his or her patient files from a medical source, the claimant must submit all of the medical records in that file;
• Although the attorney-client privilege does not apply to communications with non-attorney representatives, the final rules exclude such communications from the definition of evidence provided the communication would be subject to the attorney-client privilege if the non-attorney representative were an attorney.•
Social Security “Clarifies” Rules on Proof of Disability
LIVING WITH A DISABILITY JERRY LEVINSON
In February of 2014 the SSA proposed regulations that required disability claimants to inform it about their disability claims. In March, it provided further clarifications.
LIVING WITH A DISABILITY
This column has a simple purpose, but a difficult goal: discuss issues that affect the lives, well being and state of mind of those who must live and cope with a disability and do so in a humorous way whenever possible. This isn’t an easy thing to do, since there’s certainly nothing funny or humorous about being disabled, or in the difficulties and obstacles that those with chronic disabilities encounter daily. However, I’ve personally found that humor has to a great extent helped me cope with my disability (I’ve had Multiple Sclerosis for 45 years and use a wheelchair), and I hope this column helps others in the disability community do so as well.
