[Federal Register Volume 79, Number 34 (Thursday, February 20, 2014)]
[Proposed Rules]
[Pages 9663-9670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03426]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404, 405, and 416

[Docket No. SSA-2012-0068]
RIN 0960-AH53


Submission of Evidence in Disability Claims

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: We propose to clarify our regulations to require you to inform 
us about or submit all evidence known to you that relates to your 
disability claim, subject to two exceptions for certain privileged 
communications. This

[[Page 9664]]

requirement would include the duty to submit all evidence obtained from 
any source in its entirety, unless subject to one of these exceptions. 
We also propose to require your representative to help you obtain the 
information or evidence that we would require you to submit under our 
regulations. These modifications to our regulations would better 
describe your duty to submit all evidence that relates to your 
disability claim and enable us to have a more complete case record on 
which to make more accurate disability determinations and decisions.

DATES: To ensure that your comments are considered, we must receive 
them by no later than April 21, 2014.

ADDRESSES: You may submit comments by any one of three methods--
Internet, fax, or mail. Do not submit the same comments multiple times 
or by more than one method. Regardless of which method you choose, 
please state that your comments refer to Docket No. SSA-2012-0068 so 
that we may associate your comments with the correct regulation.
    Caution: You should be careful to include in your comments only 
information that you wish to make publicly available. We strongly urge 
you not to include in your comments any personal information, such as 
Social Security numbers or medical information.
    1. Internet: We strongly recommend this method for submitting your 
comments. Visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Web page's Search function to find docket 
number SSA-2012-0068 and then submit your comment. Once you submit your 
comment, the system will issue you a tracking number to confirm your 
submission. You will not be able to view your comment immediately 
because we must manually post each comment. It may take up to a week 
for your comment to be viewable.
    2. Fax: Fax comments to (410) 966-2830.
    3. Mail: Address your comments to the Office of Regulations and 
Reports Clearance, Social Security Administration, 3100 West High Rise 
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
    Comments are available for public viewing on the Federal 
eRulemaking portal at http://www.regulations.gov or in person, during 
regular business hours, by arranging with the contact person identified 
below.

FOR FURTHER INFORMATION CONTACT: Janet Truhe, Office of Disability 
Programs, Social Security Administration, 6401 Security Boulevard, 
Baltimore, Maryland 21235-6401, (410) 966-7203. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213, or TTY 1-800-325-0778, or visit our Internet site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Background

    The Social Security Act (Act) gives the Commissioner of Social 
Security broad rulemaking authority to issue regulations governing the 
production of evidence that we use to adjudicate disability claims 
under title II and title XVI.\1\ Additionally, the Act provides that we 
will not find that an individual is disabled ``unless [he or she] 
furnishes such medical and other evidence of the existence thereof as 
the Commissioner of Social Security may require.'' \2\
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    \1\ See 42 U.S.C. 405(a) and 1383(d)(1).
    \2\ 42 U.S.C. 423(d)(5)(A). See also 42 U.S.C. 1382c(a)(3)(H)(i) 
(making the provisions of section 423(d)(5) applicable under title 
XVI).
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    There has been recent public and media interest in what our 
regulations require regarding the submission of evidence in disability 
claims, particularly regarding the duty to submit unfavorable evidence. 
There have been allegations that when some representatives submit 
evidence to us, they deliberately withhold evidence they deem 
unfavorable to the claimant. We also know, based on our program 
experience, that we do not always receive complete evidence. This 
public and media interest has drawn congressional attention.\3\ In 
particular, members of Congress have asked about the relationship 
between the Social Security Protection Act of 2004 (SSPA) and the duty 
to submit potentially unfavorable evidence in disability claims. The 
SSPA authorized us to penalize a person who withholds a fact, which the 
person knows or should know is material to the determination of any 
initial or continuing right to benefits. In light of congressional 
interest and our program experience, we have again reviewed our 
regulations that govern the submission of evidence.
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    \3\ See, e.g., The Social Security Administration: Is It Meeting 
Its Responsibility to Save Taxpayer Dollars and Serve the Public?: 
Hearing Before the S. Comm. on Finance, 112th Cong. 18-19, 52-54 
(2012), available at http://www.finance.senate.gov/hearings/hearing/?id=35b30665-5056-a032-52b7-89db5b56d235; Fourth in a Hearing Series 
on Securing the Future of the Social Security Disability Insurance 
Program: Hearing Before the Subcomm. on Social Security of the H. 
Comm. on Ways and Means, 112th Cong. (2012), available at http://waysandmeans.house.gov/news/documentsingle.aspx?DocumentID=326594; 
Minority Staff Report, S. Perm. Subcomm. on Investigations, Social 
Security Disability Programs: Improving the Quality of Benefit Award 
Decisions 5-6 (2012), available at http://www.hsgac.senate.gov/download/report-psi-minority-staff-report_-social-security-disability-programs-improving-the-quality-of-benefit-award-decisions.
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    Our current regulations describe a claimant's duty to submit 
medical and non-medical evidence in several ways. For example, in Sec.  
404.1512(a), we state that you ``must bring to our attention everything 
that shows that you are blind or disabled,'' which may only include 
evidence that is favorable to your claim.\4\ In Sec. Sec.  404.1512(c) 
and 416.912(c), however, we state that you ``must provide evidence, 
without redaction, showing how your impairment(s) affects your 
functioning during the time you say that you are disabled,'' which may 
include evidence that is unfavorable to your claim. Similarly, our 
current regulations governing the conduct of claimants' representatives 
describe their related duty to submit evidence in several ways. For 
example, in Sec. Sec.  404.1740(b)(1) and 416.1540(b)(1), we require 
representatives to ``obtain the information and evidence that the 
claimant wants to submit in support of his or her claim,'' which may 
only include evidence that is favorable to the disability claim. In 
Sec. Sec.  404.1740(b)(2) and 416.1540(b)(2), however, we require 
representatives to assist the claimant in complying ``with our requests 
for information or evidence,'' which may include evidence that is 
unfavorable to the claim.
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    \4\ See also 20 CFR 416.912(a).
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    In reviewing our regulations on the submission of evidence, we also 
considered Congress' actions in enacting the SSPA. When it enacted the 
SSPA, Congress authorized us to impose a civil monetary penalty against 
any person who omits from a statement or representation or otherwise 
withholds disclosure of a fact that is material to the determination of 
any initial or continuing right to benefits or payments, if the person 
knows or should know that omitting or withholding the fact is 
misleading.\5\ The sheer volume of disability claims we decide each 
year makes the need for a complete case record imperative. In fiscal 
year 2012, for example, we completed more than 3.2 million initial 
disability claims and more than 820,000 hearing requests.\6\ Clarifying 
our rules regarding a claimant's duty to submit all

[[Page 9665]]

evidence that relates to the disability claim would enable us to obtain 
more complete case records and adjudicate claims more accurately.
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    \5\ Social Security Protection Act of 2004, Sec.  201, 42 U.S.C. 
1320a-8.
    \6\ Social Security Administration, Performance and 
Accountability Report, Fiscal Year 2012, at 56, 62, available at 
http://www.socialsecurity.gov/finance/2012/Full%20FY%202012%20PAR.pdf.
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    As part of our reevaluation of the regulations governing the duty 
to submit evidence in disability claims, we also consulted with the 
Administrative Conference of the United States (ACUS) \7\ and requested 
recommendations on how our regulations could better articulate the duty 
to submit all evidence that relates to the disability claim. ACUS 
issued its Final Report in October 2012.\8\ Although the particular 
content of any regulation was beyond the scope of ACUS's Final Report, 
ACUS did identify several principles and options that have guided our 
efforts in this area.
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    \7\ ACUS is ``an independent federal agency dedicated to 
improving the administrative process through consensus-driven 
applied research, providing nonpartisan expert advice and 
recommendations for improvement of federal agency procedures.'' 
About the Administrative Conference of the United States (ACUS), 
available at http://www.acus.gov/about-administrative-conference-united-states-acus.
    \8\ Administrative Conference of the United States, SSA 
Disability Benefits Programs: The Duty of Candor and Submission of 
All Evidence (Oct. 15, 2012) (``ACUS Final Report''), available at 
http://www.acus.gov/sites/default/files/documents/ACUS_Final_Report_SSA_Duty_of_Candor.pdf.
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    First, ACUS recommended that any proposed regulation should place 
disclosure obligations directly on claimants rather than on their 
representatives (if any), just as Federal courts place discovery and 
other evidence-production obligations on civil litigants, not their 
counsel. Second, ACUS recommended that any proposed disclosure 
obligations should apply both to attorney and non-attorney 
representatives. Third, ACUS recommended that we should write any 
disclosure obligations so that they do not intrude on any established 
legal privileges, including the attorney-client privilege or (assuming 
it is applicable in this context) the work-product doctrine. The 
obligations should not, among other things, require a claimant (or his 
or her representative) to disclose his or her subjective opinions 
regarding the evidence. Finally, ACUS recommended that we should write 
any disclosure obligations in a way that would minimize the extent to 
which a claimant and his or her representative must make subjective 
judgments as to the legal relevance of particular evidence. We now 
propose to clarify our regulations regarding the submission of 
evidence, based in part on the recommendations and principles in ACUS's 
Final Report and mindful of the concerns that prompted Congress to 
amend section 1129 of the Act, 42 U.S.C. 1320a-8, as part of the SSPA. 
The modifications we propose to our regulations will provide more 
certainty about the duty to submit all evidence that relates to 
disability claims.

Proposed Changes

The Claimant's Duty To Submit Evidence

    We propose to revise Sec. Sec.  404.1512(a) and 416.912(a) to 
require you to inform us about or submit all evidence known to you that 
relates to whether or not you are blind or disabled.\9\ This would 
include evidence that may be either favorable or unfavorable to your 
claim. As part of this proposal, we would remove our current 
requirement in sections 404.1512(a) and 416.912(a) that you ``must 
furnish medical and other evidence that we can use to reach conclusions 
about your medical impairment(s).'' The duty to inform us about or 
submit all evidence that relates to your disability claim would include 
all of the types of evidence we need to determine disability under our 
regulations and would remove the need for you to determine what 
evidence is ``material'' to the disability determination. In addition, 
by requiring you to inform us about or submit all evidence that relates 
to your disability claim, we would clarify that we are not shifting our 
responsibility for developing the record to you. Our disability system 
is non-adversarial, and we assist claimants in developing the medical 
and non-medical evidence we need to determine whether or not they are 
disabled.\10\
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    \9\ Under the Act, a claimant must prove to us that he or she is 
blind or disabled. 42 U.S.C. 423(d)(5)(A) and 1382c(a)(3)(H)(i). A 
claimant is disabled only if he or she is unable to do any 
substantial gainful activity because he or she has a medically 
determinable impairment that can be expected to result in death or 
which has lasted or can be expected to last for a period of at least 
12 continuous months. 42 U.S.C. 423(d)(1)(A) and 1382c(3)(A). To be 
found disabled, a claimant must also be both ``unable to do [his or 
her] previous work'' and unable to do ``any other kind of 
substantial gainful work which exists in the national economy.'' 42 
U.S.C. 423(d)(2)(A) and 1382c(a)(3)(B).
    \10\ For example, consistent with our duty under the Act, we 
must develop a claimant's ``complete medical history,'' generally 
for at least the 12 months preceding the application date. 42 U.S.C. 
423(d)(5)(B) and 1382c(a)(3)(H)(i); 20 CFR 404.1512(d) and 
416.912(d). In addition, at the hearings level, administrative law 
judges have a duty ``to investigate the facts and develop the 
arguments both for and against granting benefits.'' Sims v. Apfel, 
530 U.S. 103, 111 (2000).
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    We also propose to add a new paragraph to current Sec. Sec.  
404.1512(b) and 416.912(b), which would set forth two exceptions to 
what we mean by ``evidence.'' \11\ First, in proposed Sec. Sec.  
404.1512(b)(2)(i) and 416.912(b)(2)(i), we would exclude oral and 
written communications between you and your representative that are 
subject to the attorney-client privilege, unless you voluntarily 
disclose the communication to us. The attorney-client privilege 
protects confidential communications between a client and his or her 
attorney in order to obtain and provide sound legal assistance.\12\ Its 
purpose is to encourage attorneys and their clients to communicate 
fully and frankly.\13\ This privilege does not apply to communications 
with non-attorney representatives, but we would also exclude from the 
definition of evidence communications between claimants and their non-
attorney representatives that would be subject to the attorney-client 
privilege, if the non-attorney representative were an attorney. As 
recommended by ACUS in its Final Report, we believe that any proposed 
disclosure obligations ``should apply both to attorney and non-attorney 
representatives.'' \14\
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    \11\ We describe what we mean by ``evidence'' in current 
Sec. Sec.  404.1512(b)(1)-(8) and 416.912(b)(1)-(8) (proposed 
sections 404.1512(b)(1)(i)-(viii), 416.912(b)(1)(i)-(viii)). We do 
not propose any changes to these sections other than to add the 
phrase ``and other program physicians, psychologists, or other 
medical specialists'' to current Sec. Sec.  404.1512(b)(6) and 
416.912(b)(6) (proposed sections 404.1512(b)(1)(vi), 
416.912(b)(1)(vi)) in conformity with the cross-references that 
appear in these sections. We inadvertently omitted this phrase when 
we last revised these sections.
    \12\ See Upjohn v. United States, 449 U.S. 383, 389 (1981).
    \13\ Id.
    \14\ ACUS Final Report at 38. ACUS made this recommendation 
after consulting with the National Organization of Social Security 
Claimants' Representatives and the National Association of 
Disability Representatives (whose members also include non-attorney 
representatives). Both of these advocate groups recommended that any 
proposed changes to our evidence regulations apply to all claimant 
representatives without distinction between attorneys and non-
attorneys. Id. at A-5 and A-8.
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    The attorney-client privilege ``only protects disclosure of 
communications; it does not protect disclosure of the underlying facts 
by those who communicated with the attorney.'' \15\ For example, if you 
write a letter to your representative disclosing the names of your 
medical source(s), the privilege would preclude disclosure of the 
letter, but not the names of your medical source(s).
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    \15\ Upjohn, 449 U.S. at 395.
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    Second, in proposed Sec. Sec.  404.1512(b)(2)(ii) and 
416.912(b)(2)(ii), we propose to exclude your representative's analysis 
of your claim, unless he or she voluntarily discloses it to us. By 
``analysis of your

[[Page 9666]]

claim,'' we generally mean the information that is subject to the 
attorney work product doctrine.\16\ This doctrine protects an 
attorney's analysis, theories, mental impressions, and notes.\17\ Its 
purpose is to provide an attorney with a degree of privacy within which 
to carefully and thoroughly prepare his or her client's case.\18\
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    \16\ See Hickman v. Taylor, 329 U.S. 495, 510-12 (1947).
    \17\ Id. at 511.
    \18\ Id. at 510-11.
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    We do not intend, however, to incorporate into these proposed rules 
the full scope of the work product doctrine under Rule 26(b) of the 
Federal Rules of Civil Procedure. Rather, consistent with our broad 
authority under the Act to ``adopt reasonable and proper rules and 
regulations to regulate and provide for the nature and extent of the 
proofs and evidence and the method of taking and furnishing the same in 
order to establish the right to benefits,'' \19\ these proposed rules 
incorporate a more limited version of the work product doctrine than 
would apply under the Federal Rules. Under these proposed rules, your 
representative's ``analysis of your claim'' does not include certain 
material that we may consider in determining whether or not you are 
entitled to or eligible for the benefits for which you have applied. 
For example, if your representative takes notes during a discussion 
with one of your medical sources about your condition, we would 
consider those notes your representative's analysis of your claim, and 
they would be protected from disclosure under these proposed rules. 
However, if your medical source sends your representative medical 
records or a written opinion about your condition, your representative 
could not withhold those records and that opinion based on the work 
product doctrine. Those documents would be subject to the duty of 
disclosure under these proposed rules.
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    \19\ 42 U.S.C. 405(a) and 1383(d)(1); see Heckler v. Campbell, 
461 U.S. 458, 466 (1983) (recognizing the Commissioner's 
``exceptionally broad authority'' under section 405(a) ``to 
prescribe standards for applying certain sections of the [Social 
Security] Act.'' (Alteration in original)).
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    To clarify this point, we provide in proposed Sec. Sec.  
404.1512(b)(2)(ii) and 416.912(b)(2)(ii) that your representative's 
``analysis of your claim'' means information that is subject to the 
attorney work product doctrine, but does not include medical evidence, 
medical source opinions, or any other factual matter that we may 
consider in determining whether or not you are entitled to or eligible 
for benefits. We then provide a cross-reference to new paragraph 
(b)(2)(iv), where we further explain the scope of the privileges within 
the context of these proposed rules.
    Although the work product doctrine applies only to attorneys, we 
also exclude from the definition of evidence documents that would be 
subject to the work product privilege, if the non-attorney 
representative were an attorney, to the same extent that we have 
discussed above.
    We also propose revising Sec. Sec.  404.1512(c) and 416.912(c) to 
clarify that it is your responsibility to inform us about or submit all 
evidence known to you that relates to whether or not you are blind or 
disabled.\20\ In addition, when you submit evidence to us from another 
source, we would require you in proposed Sec. Sec.  404.1512(c) and 
416.912(c) to submit that evidence in its entirety. For example, if you 
obtain your patient file from one of your medical sources, we would 
require you to submit all of the medical records in that file. When we 
last revised Sec. Sec.  404.1512(c) and 416.912(c) to require that you 
provide evidence ``without redaction,'' we explained at the time that 
this means, for example, you must not redact evidence from a medical 
report you submit to us.\21\ As ACUS pointed out in its Final Report, 
however, we did not define ``without redaction'' or fully explain what 
we meant by this requirement.\22\ Therefore, one could interpret 
``without redaction'' to mean either within a document or among a group 
of documents.\23\ We intend our proposed requirement for submission of 
evidence in its entirety to clarify that we mean both types of 
redaction.
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    \20\ In so doing, we would place the disclosure obligation 
directly on claimants rather than on their representatives ``just as 
discovery and other evidence-production obligations in federal 
courts are placed on civil litigants, not their counsel.'' ACUS 
Final Report at 38.
    \21\ See 71 FR 16424, 16437 (2006).
    \22\ See ACUS Final Report at 7.
    \23\ Id.
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    Finally, in proposed Sec. Sec.  404.1512(c)(1) and 416.912(c)(1), 
we would clarify that, if we ask you, you must inform us about your 
medical source(s). We currently request the names and addresses of all 
of your medical source(s) on the adult and child disability 
applications; \24\ such information is within the scope of your current 
responsibility to submit evidence that shows you are blind or 
disabled.\25\ 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 Sec. Sec.  404.1512(c)(1)-(6) and 
416.912(c)(1)-(6).
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    \24\ These are the Form SSA-3368-BK, Disability Report--Adult 
and the Form SSA-3820-BK, Disability Report--Child.
    \25\ See Sec. Sec.  404.1512(a) and (c) and 416.912(a) and (c).
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The Representative's Duty To Submit Evidence

    As stated above, we propose to place the duty to submit evidence 
directly on claimants, not their representatives, if represented. 
Therefore, we propose to revise Sec. Sec.  404.1740(b)(1) and 
416.1540(b)(1) to require that representatives help obtain the 
information or evidence that claimants must submit under our proposed 
regulations. By requiring representatives to help obtain the 
information or evidence that claimants must submit, we would clarify 
that we are not shifting our responsibility to develop the record to 
claimants' representatives.

Other Changes

    We propose to make a number of other non-substantive changes to the 
current rules. We are proposing these changes for clarity and 
consistency and to correct minor grammatical errors. For example, we 
propose to revise some language from passive to active voice. We would 
also make conforming changes to Sec. Sec.  404.900, 405.1, and 
416.1400, which introduce and explain the nature of the administrative 
review process, and Sec. Sec.  404.935, 405.331, and 416.1435, which 
pertain to a claimant's duty to submit evidence at the hearings level.

Clarity of This Proposed Rule

    Executive Order 12866, as supplemented by Executive Order 13563, 
requires each agency to write all rules in plain language. In addition 
to your substantive comments on this proposed rule, we invite your 
comments on how to make it easier to understand.
    For example:
     Would more, but shorter, sections be better?
     Are the requirements in the rule clearly stated?
     Have we organized the material to suit your needs?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rule easier to 
understand?
     Does the rule contain technical language or jargon that is 
not clear?
     Would a different format make the rule easier to 
understand, e.g., grouping and order of sections, use of headings, 
paragraphing?

[[Page 9667]]

When will we start to use this rule?

    We will not use this rule until we evaluate public comments and 
publish a final rule in the Federal Register. All final rules we issue 
include an effective date. We will continue to use our current rules 
until that date. If we publish a final rule, we will include a summary 
of relevant comments we received, responses to them, and an explanation 
of how we will apply the new rule.

Regulatory Procedures

Executive Order 12866, as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and 
determined that this proposed rule meets the criteria for a significant 
regulatory action under Executive Order 12866, as supplemented by 
Executive Order 13563. Therefore, OMB reviewed it.

Regulatory Flexibility Act

    We certify that this proposed rule would not have a significant 
economic impact on a substantial number of small entities because it 
affects individuals only. Therefore, a regulatory flexibility analysis 
is not required under the Regulatory Flexibility Act, as amended.

Paperwork Reduction Act

    This NPRM imposes no reporting or recordkeeping requirements 
subject to OMB clearance.

References

    We consulted the references cited in the footnotes when we 
developed these proposed rules. We included these references in the 
rulemaking record for these proposed rules and will make them available 
for inspection by interested individuals who make arrangements with the 
contact person identified above.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; and 96.004, Social Security--Survivors Insurance)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Blind, Disability benefits, 
Old-Age, Survivors, and Disability insurance, Reporting and 
recordkeeping requirements, Social Security.

20 CFR Part 405

    Administrative practice and procedure, Blind, Disability benefits, 
Old-Age, Survivors, and Disability insurance, Public assistance 
programs, Reporting and recordkeeping requirements, Social Security, 
Supplemental Security Income (SSI).

20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Public assistance programs, Reporting and recordkeeping 
requirements, Supplemental Security Income (SSI).

    Dated: February 11, 2014.
Carolyn W. Colvin,
Acting Commissioner of Social Security.

    For the reasons stated in the preamble, we propose to amend 
subparts J, P, and R of part 404, subparts A and D of part 405, and 
subparts I, N, and O of part 416 as set forth below:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950- )

Subpart J--[Amended]

0
1. The authority citation for subpart J of part 404 continues to read 
as follows:

    Authority: Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j), 
221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 
U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i), 
425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 
U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 
Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118 
Stat. 509 (42 U.S.C. 902 note).

0
2. Amend Sec.  404.900 by revising paragraph (b) to read as follows:


Sec.  404.900  Introduction

* * * * *
    (b) Nature of the administrative review process. In making a 
determination or decision in your case, we conduct the administrative 
review process in an informal, non-adversarial manner. Subject to the 
limitations on Appeals Council consideration of additional evidence 
(see Sec. Sec.  404.970(b) and 404.976(b)), we will consider at each 
step of the review process any information you present as well as all 
the information in our records. You may present the information 
yourself or have someone represent you, including an attorney. If you 
are dissatisfied with our decision in the review process, but do not 
take the next step within the stated time period, you will lose your 
right to further administrative review and your right to judicial 
review, unless you can show us that there was good cause for your 
failure to make a timely request for review.
* * * * *
0
3. Revise Sec.  404.935 to read as follows:


Sec.  404.935  Submitting evidence prior to a hearing before an 
administrative law judge.

    You should submit information or evidence as required by Sec.  
404.1512 or any summary of the evidence to the administrative law judge 
with the request for hearing or within 10 days after filing the 
request, if possible. Each party shall make every effort to ensure that 
the administrative law judge receives all of the evidence (see Sec.  
404.1512) or all of the evidence is available at the time and place set 
for the hearing.

Subpart P--[Amended]

0
4. The authority citation for subpart P of part 404 continues to read 
as follows:

    Authority: Secs. 202, 205(a)-(b) and (d)-(h), 216(i), 221(a), 
(i), and (j), 222(c), 223, 225, and 702(a)(5) of the Social Security 
Act (42 U.S.C. 402, 405(a)-(b) and (d)-(h), 416(i), 421(a), (i), and 
(j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 
110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 
U.S.C. 902 note).

0
5. In Sec.  404.1512, revise paragraphs (a) through (c) to read as 
follows:


Sec.  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. We will 
consider only impairment(s) you say you have or about which we receive 
evidence.
    (b) What we mean by ``evidence.'' Evidence is anything you or 
anyone else submits to us or that we obtain that relates to your claim.
    (1) Evidence includes, but is not limited to:
    (i) Objective medical evidence, that is, medical signs and 
laboratory findings as defined in Sec.  404.1528(b) and (c);
    (ii) Other evidence from medical sources, such as medical history, 
opinions, and statements about treatment you have received;
    (iii) Statements you or others make about your impairment(s), your 
restrictions, your daily activities, your efforts to work, or any other 
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;
    (iv) Information from other sources, as described in Sec.  
404.1513(d);
    (v) Decisions by any governmental or nongovernmental agency about 
whether or not you are disabled or blind (see Sec.  404.1504);
    (vi) At the initial level of the administrative review process, 
when a State agency disability examiner makes

[[Page 9668]]

the initial determination alone (see Sec.  404.1615(c)(3)), opinions 
provided by State agency medical and psychological consultants and 
other program physicians, psychologists, or other medical specialists 
based on their review of the evidence in your case record (see Sec.  
404.1527(e)(1)(ii));
    (vii) At the reconsideration level of the administrative review 
process, when a State agency disability examiner makes the 
determination alone (see Sec.  404.1615(c)(3)), findings, other than 
the ultimate determination about whether or not you are disabled, made 
by the State agency medical or psychological consultants and other 
program physicians, psychologists, or other medical specialists at the 
initial level of the administrative review process, and other opinions 
they provide based on their review of the evidence in your case record 
at the initial and reconsideration levels (see Sec.  
404.1527(e)(1)(iii)); and
    (viii) At the administrative law judge and Appeals Council levels, 
findings, other than the ultimate determination about whether or not 
you are disabled, made by State agency medical or psychological 
consultants and other program physicians or psychologists, or other 
medical specialists, and opinions expressed by medical experts or 
psychological experts that we consult based on their review of the 
evidence in your case record (see Sec. Sec.  404.1527(e)(2)-(3)).
    (2) Exceptions. Notwithstanding paragraph (b)(1) of this section, 
evidence does not include:
    (i) Oral or written communications between you and your 
representative that are subject to the attorney-client privilege, 
unless you voluntarily disclose the communication to us; or
    (ii) Your representative's analysis of your claim, unless he or she 
voluntarily discloses it to us. Your representative's ``analysis of 
your claim,'' means information that is subject to the attorney work 
product doctrine, but it does not include medical evidence, medical 
source opinions, or any other factual matter that we may consider in 
determining whether or not you are entitled to benefits (see paragraph 
(b)(2)(iv) of this section).
    (iii) The provisions of paragraph (b)(2)(i) apply to communications 
between you and your non-attorney representative only if the 
communications would be subject to the attorney-client privilege, if 
your non-attorney representative were an attorney. The provisions of 
paragraph (b)(2)(ii) apply to the analysis of your claim by your non-
attorney representative only if the analysis of your claim would be 
subject to the attorney work product doctrine, if your non-attorney 
representative were an attorney.
    (iv) The attorney-client privilege generally protects confidential 
communications between an attorney and his or her client that are 
related to providing or obtaining legal advice. The attorney work 
product doctrine generally protects an attorney's analysis, theories, 
mental impressions, and notes. In the context of your disability claim, 
neither the attorney-client privilege nor the attorney work product 
doctrine allows you to withhold factual information, medical source 
opinions, or other medical evidence that we may consider in determining 
whether or not you are entitled to benefits. For example, if you tell 
your representative about the medical sources you have seen, your 
representative cannot refuse to disclose the identity of those medical 
sources to us based on the attorney-client privilege. As another 
example, if your representative asks a medical source to complete an 
opinion form related to your impairment(s), symptoms, or limitations, 
your representative cannot withhold the completed opinion form from us 
based on the attorney work product doctrine. The attorney work product 
doctrine would not protect the source's opinions on the completed form, 
regardless of whether or not your representative used the form in his 
or her analysis of your claim or made handwritten notes on the face of 
the report.
    (c) Your responsibility. You must inform us about or submit all 
evidence known to you that relates to whether or not you are blind or 
disabled. When you submit evidence from another source, you must submit 
that evidence in its entirety. If we ask you, you must inform us about:
    (1) Your medical source(s);
    (2) Your age;
    (3) Your education and training;
    (4) Your work experience;
    (5) Your daily activities both before and after the date you say 
that you became disabled;
    (6) Your efforts to work; and
    (7) Any other factors showing how your impairment(s) affects your 
ability to work. In Sec. Sec.  404.1560 through 404.1569a, we discuss 
in more detail the evidence we need when we consider vocational 
factors.
* * * * *

Subpart R--[Amended]

0
6. The authority citation for subpart R of part 404 continues to read 
as follows:

    Authority: Secs. 205(a), 206, 702(a)(5), and 1127 of the Social 
Security Act (42 U.S.C. 405(a), 406, 902(a)(5), and 1320a-6).

0
7. In Sec.  404.1740, revise paragraphs (b)(1) and (b)(2)(i) through 
(vii) to read as follows:


Sec.  404.1740  Rules of conduct and standards of responsibility for 
representatives.

* * * * *
    (b) * * *
    (1) Act with reasonable promptness to help obtain the information 
or evidence that the claimant must submit under our regulations, and 
forward the information or evidence to us for consideration as soon as 
practicable.
    (2) * * *
    (i) The claimant's medical source(s);
    (ii) The claimant's age;
    (iii) The claimant's education and training;
    (iv) The claimant's work experience;
    (v) The claimant's daily activities both before and after the date 
the claimant alleges that he or she became disabled;
    (vi) The claimant's efforts to work; and
    (vii) Any other factors showing how the claimant's impairment(s) 
affects his or her ability to work. In Sec. Sec.  404.1560 through 
404.1569a, we discuss in more detail the evidence we need when we 
consider vocational factors;
* * * * *

PART 405--ADMINISTRATIVE REVIEW PROCESS FOR ADJUDICATING INITIAL 
DISABILITY CLAIMS

0
8. The authority citation for part 405 continues to read as follows:

    Authority: Secs. 201(j), 205(a)-(b), (d)-(h), and (s), 221, 
223(a)-(b), 702(a)(5), 1601, 1602, 1631, and 1633 of the Social 
Security Act (42 U.S.C. 401(j), 405(a)-(b), (d)-(h), and (s), 421, 
423(a)-(b), 902(a)(5), 1381, 1381a, 1383, and 1383b).

0
9. In Sec.  405.1, revise the first sentence of paragraph (c)(2) to 
read as follows:

Subpart A--[Amended]


Sec.  405.1  Introduction.

* * * * *
    (c) * * *
    (2) Evidence considered and right to representation. Subject to 
Sec. Sec.  405.331 and 405.430, you must submit evidence and 
information to us (see Sec. Sec.  404.1512 and 416.912). * * *
* * * * *
0
10. In Sec.  405.331, revise the first two sentences of paragraph (a) 
to read as follows:

[[Page 9669]]

Subpart D--[Amended]


Sec.  405.331  Submitting evidence to an administrative law judge.

    (a) When you submit your request for hearing, you should also 
submit information or evidence as required by Sec. Sec.  404.1512 or 
416.912 of this chapter or any summary of the evidence to the 
administrative law judge. You must submit any written evidence no later 
than 5 business days before the date of the scheduled hearing. * * *
* * * * *

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart I--[Amended]

0
11. The authority citation for subpart I of part 416 continues to read 
as follows:

    Authority: Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a), 
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and 
(p), and 1383b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L. 
98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 
note, and 1382h note).
0
12. In Sec.  416.912, revise paragraphs (a) through (c) to read as 
follows:


Sec.  416.912  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. We will 
consider only impairment(s) you say you have or about which we receive 
evidence.
    (b) What we mean by ``evidence.'' Evidence is anything you or 
anyone else submits to us or that we obtain that relates to your claim.
    (1) Evidence includes, but is not limited to:
    (i) Objective medical evidence, that is, medical signs and 
laboratory findings as defined in Sec.  416.928(b) and (c);
    (ii) Other evidence from medical sources, such as medical history, 
opinions, and statements about treatment you have received;
    (iii) Statements you or others make about your impairment(s), your 
restrictions, your daily activities, your efforts to work, or any other 
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;
    (iv) Information from other sources, as described in Sec.  
416.913(d);
    (v) Decisions by any governmental or nongovernmental agency about 
whether or not you are disabled or blind (see Sec.  404.1504);
    (vi) At the initial level of the administrative review process, 
when a State agency disability examiner makes the initial determination 
alone (see Sec.  416.1015(c)(3)), opinions provided by State agency 
medical and psychological consultants and other program physicians, 
psychologists, or other medical specialists based on their review of 
the evidence in your case record (see Sec.  416.927(e)(1)(ii));
    (vii) At the reconsideration level of the administrative review 
process, when a State agency disability examiner makes the 
determination alone (see Sec.  416.1015(c)(3)), findings, other than 
the ultimate determination about whether or not you are disabled, made 
by the State agency medical or psychological consultants and other 
program physicians, psychologists, or other medical specialists at the 
initial level of the administrative review process, and other opinions 
they provide based on their review of the evidence in your case record 
at the initial and reconsideration levels (see Sec.  
416.927(e)(1)(iii)); and
    (viii) At the administrative law judge and Appeals Council levels, 
findings, other than the ultimate determination about whether or not 
you are disabled, made by State agency medical or psychological 
consultants and other program physicians or psychologists, or other 
medical specialists, and opinions expressed by medical experts or 
psychological experts that we consult based on their review of the 
evidence in your case record (see Sec. Sec.  416.927(e)(2)-(3)).
    (2) Exceptions. Notwithstanding paragraph (b)(1) of this section, 
evidence does not include:
    (i) Oral or written communications between you and your 
representative that are subject to the attorney-client privilege, 
unless you voluntarily disclose the communication to us; or
    (ii) Your representative's analysis of your claim, unless he or she 
voluntarily discloses it to us. Your representative's ``analysis of 
your claim,'' means information that is subject to the attorney work 
product doctrine, but it does not include medical evidence, medical 
source opinions, or any other factual matter that we may consider in 
determining whether or not you are eligible for benefits (see paragraph 
(b)(2)(iv) of this section).
    (iii) The provisions of paragraph (b)(2)(i) apply to communications 
between you and your non-attorney representative only if the 
communications would be subject to the attorney-client privilege, if 
your non-attorney representative were an attorney. The provisions of 
paragraph (b)(2)(ii) apply to the analysis of your claim by your non-
attorney representative only if the analysis of your claim would be 
subject to the attorney work product doctrine, if your non-attorney 
representative were an attorney.
    (iv) The attorney-client privilege generally protects confidential 
communications between an attorney and his or her client that are 
related to providing or obtaining legal advice. The attorney work 
product doctrine generally protects an attorney's analysis, theories, 
mental impressions, and notes. In the context of your disability claim, 
neither the attorney-client privilege nor the attorney work product 
doctrine allows you to withhold factual information, medical source 
opinions, or other medical evidence that we may consider in determining 
whether or not you are eligible for benefits. For example, if you tell 
your representative about the medical sources you have seen, your 
representative cannot refuse to disclose the identity of those medical 
sources to us based on the attorney-client privilege. As another 
example, if your representative asks a medical source to complete an 
opinion form related to your impairment(s), symptoms, or limitations, 
your representative cannot withhold the completed opinion form from us 
based on the attorney work product doctrine. The attorney work product 
doctrine would not protect the source's opinions on the completed form, 
regardless of whether or not your representative used the form in his 
or her analysis of your claim or made handwritten notes on the face of 
the report.
    (c) Your responsibility. You must inform us about or submit all 
evidence known to you that relates to whether or not you are blind or 
disabled. When you submit evidence from another source, you must submit 
that evidence in its entirety. If we ask you, you must inform us about:
    (1) Your medical source(s);
    (2) Your age;
    (3) Your education and training;
    (4) Your work experience;
    (5) Your daily activities both before and after the date you say 
that you became disabled;
    (6) Your efforts to work; and
    (7) Any other factors showing how your impairment(s) affects your 
ability to work. In Sec. Sec.  416.960 through 416.969a, we discuss in 
more detail the evidence we need when we consider vocational factors.
* * * * *

[[Page 9670]]

Subpart N--[Amended]

0
13. The authority citation for subpart N of part 416 continues to read 
as follows:

    Authority: Secs. 702(a)(5), 1631, and 1633 of the Social 
Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub. 
L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

0
14. Amend Sec.  416.1400 by revising paragraph (b) to read as follows:


Sec.  416.1400  Introduction

* * * * *
    (b) Nature of the administrative review process. In making a 
determination or decision in your case, we conduct the administrative 
review process in an informal, non-adversarial manner. Subject to the 
limitations on Appeals Council consideration of additional evidence 
(see Sec. Sec.  416.1470(b) and 416.1476(b)), we will consider at each 
step of the review process any information you present as well as all 
the information in our records. You may present the information 
yourself or have someone represent you, including an attorney. If you 
are dissatisfied with our decision in the review process, but do not 
take the next step within the stated time period, you will lose your 
right to further administrative review and your right to judicial 
review, unless you can show us that there was good cause for your 
failure to make a timely request for review.
* * * * *
0
15. Revise Sec.  416.1435 to read as follows:


Sec.  416.1435  Submitting evidence prior to a hearing before an 
administrative law judge.

    You should submit information or evidence as required by Sec.  
416.912 or any summary of the evidence to the administrative law judge 
with the request for hearing or within 10 days after filing the 
request, if possible. Each party shall make every effort to ensure that 
the administrative law judge receives all of the evidence (see Sec.  
416.912) or all of the evidence is available at the time and place set 
for the hearing.

Subpart O--[Amended]

0
16. The authority citation for subpart O of part 416 continues to read 
as follows:

    Authority: Secs. 702(a)(5), 1127, and 1631(d) of the Social 
Security Act (42 U.S.C. 902(a)(5), 1320a-6, and 1383(d)).

0
17. In Sec.  416.1540, revise paragraphs (b)(1) and (b)(2)(i) through 
(vii) to read as follows:


Sec.  416.1540  Rules of conduct and standards of responsibility for 
representatives.

* * * * *
    (b) * * *
    (1) Act with reasonable promptness to help obtain the information 
or evidence that the claimant must submit under our regulations, and 
forward the information or evidence to us for consideration as soon as 
practicable.
    (2) * * *
    (i) The claimant's medical source(s);
    (ii) The claimant's age;
    (iii) The claimant's education and training;
    (iv) The claimant's work experience;
    (v) The claimant's daily activities both before and after the date 
the claimant alleges that he or she became disabled;
    (vi) The claimant's efforts to work; and
    (vii) Any other factors showing how the claimant's impairment(s) 
affects his or her ability to work. In Sec. Sec.  416.960 through 
416.969a, we discuss in more detail the evidence we need when we 
consider vocational factors;
* * * * *
[FR Doc. 2014-03426 Filed 2-19-14; 8:45 am]
BILLING CODE 4191-02-P