[Federal Register Volume 80, Number 54 (Friday, March 20, 2015)]
[Rules and Regulations]
[Pages 14828-14838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-05921]
=======================================================================
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are clarifying 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 requirement includes the duty to submit all
evidence that relates to your disability claim received from any source
in its entirety, unless you previously submitted the same evidence to
us or we instruct you otherwise. We are also requiring your
representative to help you obtain the information or evidence that we
require you to submit under our regulations. These modifications to our
regulations will better describe your duty to submit all evidence that
relates to your disability claim and enable us to have more complete
case records on which to make more accurate disability determinations
and decisions.
DATES: This rule is effective April 20, 2015.
FOR FURTHER INFORMATION CONTACT: Janet Truhe, Office of Retirement and
Disability Policy, 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
We published a Notice of Proposed Rulemaking (NPRM) in the Federal
Register on February 20, 2014 (79 FR 9663). The preamble to the NPRM
discussed the changes from our current rules and our reasons for
proposing those changes.\1\ In the NPRM, we proposed 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. We explained that
this requirement would include the duty to submit all evidence from any
source in its entirety, unless subject to one of these exceptions. We
also proposed to require your representative to help you obtain the
information or evidence that we would require you to submit under our
regulations.
---------------------------------------------------------------------------
\1\ The NPRM is available at http://www.gpo.gov/fdsys/pkg/FR-2014-02-20/pdf/2014-03426.pdf.
---------------------------------------------------------------------------
Public Comments
We provided 60 days for the public to comment on the NPRM. We
received 85
[[Page 14829]]
comments. The comments came from members of the public, advocacy
groups, legal organizations, members of the disability advocacy
community, and several national groups of Social Security claimants'
representatives. After carefully considering the comments, we are
adopting our proposed rule revisions, with the changes described below,
in this final rule.
We provide summaries of the significant comments that were relevant
to this rulemaking and our responses to those comments below. Some
commenters supported the proposed changes. We appreciate those
comments, but we have not summarized or responded to them because they
do not require a response.
The Submission of Evidence That Relates to Disability Claims
Comment: Several commenters said our proposal in 20 CFR 404.1512(a)
and 416.912(a) for claimants to submit evidence that ``relates'' to
their disability claims is less clear than our current requirement to
submit evidence that is ``material'' to the disability determination.
Other commenters said the word ``relates'' is too vague and claimants
will not know, for example, if they must inform us about medical
treatment for a physical impairment when they have alleged disability
based solely on a mental impairment. Several of these commenters said
requiring claimants to submit information that ``relates'' to their
disability claims would be an invasion of privacy, as it could include
every matter about a claimant's health history (for example, an
abortion or HIV status). Other commenters said it would be difficult
for claimants to know whether non-medical information, such as from
social media or other types of proceedings (for example, a worker's
compensation claim), ``relates'' to their disability claims.
Response: We disagree with the commenters. Unless the context
indicates otherwise, we generally intend for the words we use in our
regulations to be construed according to their ordinary meaning. In
final Sec. Sec. 404.1512(a) and 416.912(a), we intend for the word
``relates'' to have its ordinary meaning, which is to show or establish
a logical or causal connection between two things. Our current rules
already incorporate this concept in the definition of evidence. Under
our current rules, and under this final rule, we define evidence as
``anything you or anyone else submits to us or that we obtain that
relates to your claim.'' In our experience, neither claimants nor their
representatives have had any difficulty determining whether something
qualified as ``evidence'' under this definition.
Our current regulations, however, describe a claimant's duty to
submit evidence in several ways and suggest that claimants must furnish
medical and non-medical evidence that is ``material'' to the disability
determination. The issue of what is ``material'' involves legal
judgment. As we explained in the NPRM, by requiring claimants to submit
all evidence that ``relates'' to their disability claims, we are
removing the need to make that type of judgment.\2\
---------------------------------------------------------------------------
\2\ 79 FR at 9665.
---------------------------------------------------------------------------
In addition, we expect claimants to exercise their reasonable, good
faith judgment about what evidence ``relates'' to their disability
claims keeping in mind, however, that the meaning of ``relates'' is
broad and includes anything that has a logical or causal connection
whether it is favorable or unfavorable to the claim. It is also
important to note that we consider all of a claimant's impairments for
which we have evidence, not just the ones alleged,\3\ and we consider
the combined effect of all impairments.\4\ We are also required,
subject to certain exceptions, to develop a complete medical history
for at least the 12 months preceding the date of the disability
application.\5\ Therefore, evidence of treatment for conditions other
than the one alleged by the claimant could relate to the disability
claim. For example, if a claimant alleged a back impairment, the
treatment records from health care providers other than the treating
orthopedic surgeon (for example, from a family doctor who has rendered
treatment for a condition other than the one alleged) may contain
related information. Therefore, we may ask the claimant if he or she
saw other providers during the period at issue. In addition, if the
back impairment arose out of an injury at work, we would expect the
claimant, upon our request, to inform us whether he or she filed a
worker's compensation claim. If so, we may obtain the records from that
claim, because they may contain evidence that ``relates'' to the claim
for disability.
---------------------------------------------------------------------------
\3\ See 20 CFR 404.1512(a) and 416.912(a); see also 42 U.S.C.
423(d)(2)(B) and 1382c(a)(3)(G).
\4\ See 20 CFR 404.1523 and 416.923.
\5\ See 20 CFR 404.1512(d) and 416.912(d).
---------------------------------------------------------------------------
However, we would expect our adjudicators to exercise their
reasonable, good faith judgment when requesting information or evidence
from claimants. For example, we would not require a claimant to
disclose treatment for a health matter such as an abortion, if the
claimant alleged disability based on a genetic disorder.
Comment: Several commenters recommended that we not revise our
regulations regarding the submission of evidence, because they believed
our current rules work well. Several of these commenters said claimants
already have a duty to inform us about all medical treatment received
and submit evidence that is ``material'' to the disability
determination. Some of these commenters also said no change was
necessary regarding the submission of evidence by representatives,
because attorneys have an ethical duty not to withhold evidence. Some
of these commenters said our current ``Rules of conduct and standards
of responsibility for representatives,'' which apply to attorney and
non-attorney representatives,\6\ are sufficient to ensure the
submission of complete evidence on behalf of claimants. One of these
commenters recommended that we impose harsher penalties on
representatives who withhold evidence that is unfavorable to the
disability claim.
---------------------------------------------------------------------------
\6\ See 20 CFR 404.1740 and 416.1540.
---------------------------------------------------------------------------
Response: We did not adopt the comments. As we explained in the
NPRM, our current regulations describe a claimant's duty to submit
medical and non-medical evidence in several ways, and they could be
clearer about the duty to submit all evidence (both favorable and
unfavorable) that relates to the disability claim.\7\ Similarly, our
current regulations governing the conduct of representatives describe
their related duty to submit evidence in several ways; those
regulations could also be clearer.\8\ We provide that greater clarity
in this final rule. The need for greater clarification also implicates
program integrity because, as we explained in the NPRM, we know that we
do not always receive complete evidence from claimants or their
representatives.\9\ Clarifying our rules regarding the duty to submit
all evidence that relates to the disability claim will ``enable us to
obtain more complete case records and adjudicate claims more
accurately.'' \10\
---------------------------------------------------------------------------
\7\ 79 FR at 9664.
\8\ Id.
\9\ Id.
\10\ Id. at 9665.
---------------------------------------------------------------------------
In addition, as we previously stated, our current regulations
suggest that claimants and their representatives must make legal
judgments about what is ``material'' to the disability claim. Our final
rule removes the need to make that type of legal judgment.
Comment: Several commenters questioned how claimants would inform
[[Page 14830]]
us about all evidence that ``relates'' to their disability claims and
asked whether they will have to volunteer this information or simply
respond to our specific requests. Some of these commenters said it
would be burdensome and unrealistic to require claimants, particularly
those who are unrepresented, homeless, or who have mental impairments,
to disclose on a voluntary basis every disability-related statement or
activity. Other commenters asked whether claimants should memorialize,
and then submit to us, all of the disability-related statements they
made to others (for example, to doctors, friends, or family members).
One of the commenters asked whether the duty to submit all evidence
would require claimants to disclose the names of all people with
personal knowledge of the claim. Another commenter asked whether
claimants would have a duty to supplement information they previously
submitted, if they later become aware of additional responsive
information. Another commenter asked if claimants would have to
disclose the existence of evidence, which they were unaware of at the
time of our initial request, but that they became aware of later. One
commenter asked whether the duty to submit all evidence would apply at
the Appeals Council level.
Response: We use a standardized process for obtaining information
and evidence from claimants about their disability claims. For example,
in the adult disability application process, we ask a variety of
questions about the claimant's medical condition, work activity, job
history, and medical treatment.\11\ Under final Sec. Sec. 404.1512(a)
and 416.912(a), we expect claimants to comply with their duty to submit
evidence by providing all information known to them that relates to
these requests. We may also make other types of requests for
information and evidence that we would expect claimants to provide.\12\
---------------------------------------------------------------------------
\11\ See Form SSA-3368-BK, Disability Report--Adult (available
at http://www.socialsecurity.gov/forms/ssa-3368.pdf).
\12\ For example, in some cases, we may want to obtain evidence
about a claimant's ability to function and perform activities of
daily living, and we will ask him or her to complete Form SSA-3373-
BK, Function Report--Adult. We would expect the claimant to provide
all information known to him or her that relates to the requests on
this form.
---------------------------------------------------------------------------
Aside from responding fully to our specific requests, claimants
also submit other evidence to us. 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. Final Sec. Sec. 404.1512(c) and 416.912(c)
require only that claimants submit all evidence ``received'' from
another source in its entirety.
For claimants who need assistance in responding to our requests for
information and evidence, we currently provide that assistance. For
example, when a claimant submits a disability application, we ask the
claimant to provide the name of someone we can contact who knows about
the claimant's medical condition and can help the claimant with his or
her disability claim. We also provide special procedures for obtaining
evidence from homeless claimants \13\ and instruct our adjudicators on
how to assist claimants with mental impairments when requesting
information or evidence from them.\14\
---------------------------------------------------------------------------
\13\ See Program Operations Manual System (POMS) DI 11005.004
(available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0411005004).
\14\ For example, when obtaining evidence from a claimant with a
mental impairment, our adjudicators should consider any request for
accommodation, such as giving additional time to comply. See POMS DI
23007.005 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0423007005).
---------------------------------------------------------------------------
The duty to inform us about or submit all evidence that relates to
the disability claim is ongoing, and we have modified proposed (now
final) Sec. Sec. 404.1512(a) and 416.912(a) to clarify that claimants
must disclose any additional evidence related to their disability
claims about which they become aware. Therefore, after we have made a
request for a particular type of information or evidence, claimants
must supplement their previous response, if they become aware of
additional related evidence. Claimants must also disclose the existence
of evidence that they were unaware of at the time of our initial
request, but become aware of later on. This ongoing duty applies at
each level of the administrative review process, including the Appeals
Council level if relates to the period which is the subject of the most
recent hearing decision.
Comment: Several commenters recommended that we only require
claimants to submit evidence in specific categories (for example,
medical records), which was one of several options suggested by the
Administrative Conference of the United States (ACUS) in its Final
Report.\15\ These commenters said this requirement would be preferable
to the more general requirement we proposed in Sec. Sec. 404.1512(a)
and 416.912(a) (for the submission of all evidence that ``relates'' to
the disability claim), because it would minimize the need for claimants
or their representatives to make legal judgments about whether evidence
is ``material'' or ``relevant.'' One of these commenters also said it
would be difficult for claimants to know what constitutes related
unfavorable evidence.
---------------------------------------------------------------------------
\15\ Administrative Conference of the United States, SSA
Disability Benefits Programs: The Duty of Candor and Submission of
All Evidence, at 40 (Oct. 15, 2012) (``ACUS Final Report''),
available at http://www.acus.gov/sites/default/files/documents/ACUS_Final_Report_SSA_Duty_of_Candor.pdf.
---------------------------------------------------------------------------
Response: We did not adopt these comments. We considered ACUS's
suggestion that we identify a particular category of documents that a
claimant must identify or produce with some reasonable degree of
certainty, but we decided that it was not practical for several
reasons. First, there is a wide variety of evidence that could relate
to a disability claim, and it is difficult to specify all of the
potential categories in a regulation (aside from medical records, which
we need to determine disability in all cases). Second, as we previously
stated, we removed the need for claimants to make any legal judgments
about what evidence they should submit. By requiring the submission of
all evidence that ``relates'' to the disability claim in final
Sec. Sec. 404.1512(a) and 416.912(a), claimants will only have to
inform us about or submit evidence that has a logical or causal
connection with their disability claims; such evidence will necessarily
include both favorable and potentially unfavorable evidence. Thus,
there will be no need for claimants to determine what constitutes
``unfavorable'' evidence.
Comment: Several commenters said we should not require claimants to
submit evidence that relates to their disability claims if it is
unfavorable. For example, some of these commenters said unfavorable
evidence could be inaccurate or unreliable, or it could come from
doctors who are biased against claimants or are not knowledgeable about
certain impairments. Another commenter said the requirement to submit
all evidence that relates to the disability claim would preclude
representatives from exercising their professional judgment about what
evidence they should submit in support of their clients' disability
claims. One commenter expressed concern that the requirement could mean
claimants would have to submit statements by those who have a personal
grudge (for example, a former spouse). Another commenter believed the
requirement to submit unfavorable evidence might deter claimants from
seeking medical evaluations that could lead to helpful treatment out of
fear they might have to disclose this information later in a disability
claim.
[[Page 14831]]
Response: We disagree with the commenters. We proposed to require
claimants to submit all evidence (favorable or unfavorable) that
relates to their disability claims because we believe a more complete
record will give us a fuller picture of the extent of a claimant's
impairments and the limitations they impose. As a result, we expect
that the changes we are making in this final rule will enable us to
make more accurate disability determinations and decisions, consistent
with Congress's intent and our responsibility to ensure the proper
stewardship of the disability program. Allowing claimants (or their
representatives) to inform us about or submit only the evidence that
they would like us to consider would undermine that goal. It would also
be inconsistent with Congress's intent in enacting section 201 of the
Social Security Protection Act of 2004 (SSPA),\16\ which authorizes us
to impose a civil monetary penalty on a claimant who should have come
forward to notify us of changed circumstances that affect eligibility,
but failed to do so. As we previously stated, we expect our
adjudicators to exercise their reasonable, good faith judgment when
requesting evidence from claimants that relates to the disability
claim. Therefore, we do not believe claimants or their representatives
will have to respond to requests for information or evidence that are
burdensome or pertain to unrelated matters.
---------------------------------------------------------------------------
\16\ 42 U.S.C. 1320a-8.
---------------------------------------------------------------------------
In addition, it is fair to require the disclosure of related but
potentially unfavorable evidence, because claimants (or their
representatives) can explain to us why they believe we should give such
evidence little or no weight. Claimants and their representatives
routinely make arguments for and against certain evidence in other
types of cases, and they can also make these arguments in disability
cases. Moreover, we do not base our determinations or decisions on only
one piece of evidence when we adjudicate a claim. Rather, our
adjudicators must base their determinations and decisions on the
preponderance of the evidence.\17\ Because we base our determinations
or decisions on a preponderance of the evidence, we do not believe the
commenter's concern that unfavorable evidence could be inaccurate or
unreliable, or could come from a medical source who is biased or not
knowledgeable about certain impairments, requires us to make any
revisions to the final rule. In addition, we disagree with one
commenter's suggestion that the duty to submit potentially unfavorable
evidence might deter people from seeking medical evaluations and
treatment out of fear they might have to disclose this evidence in a
future disability claim. We believe that view is speculative and
contrary to how people behave, which is to act in their best interests
by seeking medical treatment when needed.
---------------------------------------------------------------------------
\17\ See 20 CFR 404.902 and 416.1402.
---------------------------------------------------------------------------
Comment: Several commenters said our proposal to require the
submission of all evidence that relates to the disability claim makes
the determination process more formal and adversarial. Some of these
commenters believed this requirement would be inconsistent with our
duty to gather evidence regarding the claim. One of these commenters
said that providing claimants with the protections of attorney-client
privilege and the attorney work product doctrine was inconsistent with
the informal and non-adversarial nature of our current disability
determination process.
Response: We disagree with the commenters. In fact, the non-
adversarial nature of our disability determination process is what
requires us to ensure a high level of cooperation from claimants.
Moreover, we did not propose any change to how we determine disability
at any level of the administrative review process. In the NPRM, we
stated that our disability system is ``non-adversarial,'' and we
reaffirmed our duty to ``assist claimants in developing the medical and
non-medical evidence we need to determine whether or not they are
disabled.'' \18\ The requirement for claimants to inform us about or
submit all evidence that relates to the disability claim does not
change the process for how we determine disability. Rather, as we have
stated repeatedly, this requirement will simply enable us to make more
accurate disability determinations, because we will have more complete
case records on which to make those determinations.
---------------------------------------------------------------------------
\18\ 79 FR at 9665.
---------------------------------------------------------------------------
Comment: Several commenters expressed concern about claimants who
conceal evidence from their representatives, either intentionally or by
mistake, and asked whether we would penalize the representative in
these situations. Some of the commenters also expressed concern about
unrepresented claimants who mistakenly withhold evidence from us that
we believe relates to the disability claim. These commenters believed
it would be unfair for us to penalize these claimants, especially if
their mistakes were due to a cognitive difficulty.
Response: As we previously stated, under our final rule, we expect
claimants to exercise their reasonable, good faith judgment about what
evidence ``relates'' to their disability claims consistent, of course,
with the meaning of the term ``relates,'' which could include
unfavorable evidence. Our final rule does not broaden or otherwise
alter the Commissioner's statutory authority to impose a civil monetary
penalty under the SSPA.\19\ The standard for imposing a civil monetary
penalty under the SSPA requires the Commissioner to find that a person
withheld ``disclosure of, a fact which the person knows or should know
is material to the determination of any initial or continuing right to
. . . [benefits or payments].'' \20\ The Commissioner must also find
that the person ``knows, or should know, that the statement or
representation with such omission is false or misleading or that the
withholding of such disclosure is misleading.'' \21\ Given the standard
set forth in the SSPA, we do not expect that a claimant who mistakenly
withholds evidence due to a cognitive deficit would be subject to a
civil monetary penalty. We also do not expect that a representative
would be subject to a civil monetary penalty under the SSPA if the
representative's client concealed evidence from him or her. It is also
important to note, as we previously stated, that we assist any claimant
who requests help in responding to our requests for information or
evidence, and we have special procedures when requesting information or
evidence from homeless claimants and those with mental impairments.
---------------------------------------------------------------------------
\19\ Social Security Protection Act of 2004, section 201, 42
U.S.C. 1320a-8.
\20\ Id. section 201, 42 U.S.C. 1320a-8(a)(1).
\21\ Id.
---------------------------------------------------------------------------
Comment: Several commenters suggested that rather than revise our
regulations regarding the submission of evidence by claimants and their
representatives, we should instead do more to obtain the evidence we
need to decide disability claims. For example, one of these commenters
recommended that we assign a government representative to work with
claimants (or their representatives) to ensure the development of
needed evidence. Another commenter suggested that we consider expanding
our own obligation to assist claimants in obtaining medical records.
Response: We did not adopt the comments, some of which are outside
the scope of this rulemaking proceeding.
[[Page 14832]]
As we explained in the NPRM, under our current regulations, we assist
claimants in developing the medical and non-medical evidence we need to
determine disability throughout the administrative review process.\22\
Representatives (attorney and non-attorney) also assist claimants in
submitting evidence and in complying with our requests for
evidence.\23\ Therefore, we do not believe it is necessary to assign an
additional government representative to assist claimants or their
representatives in the evidence collection process. In any event, such
a suggestion is outside the scope of this rulemaking proceeding.
---------------------------------------------------------------------------
\22\ 79 FR at 9665. See 20 CFR 404.1512(d) and (e), 416.912(d)
and (e).
\23\ See 20 CFR 404.1740(b)(1) and (2) and 416.1540(b)(1) and
(2).
---------------------------------------------------------------------------
In addition, we are always striving to find better methods of
obtaining medical and other evidence we need to decide disability
claims. For example, use of health information technology (HIT) enables
us to access and organize a person's complete medical records upon
receipt of a claim. We continue to expand our use of HIT and explore
ways of improving the medical and non-medical evidence collection
process.
Comment: Several commenters expressed concern about our removal of
the term ``relevant'' in proposed Sec. Sec. 404.1512(b)(1)(iii) and
416.912(b)(1)(iii). Sections 404.1512(b)(3) and 416.912(b)(3) currently
refer to evidence of disability-related statements made by the claimant
or others ``or any other relevant statements'' made by the claimant
``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.'' Without the term ``relevant,'' the
commenters asked whether there would be any limit on the scope of these
``other statements,'' which we require claimants to disclose under this
final rule.
Response: We removed the term ``relevant'' in proposed (now final)
Sec. Sec. 404.1512(b)(1)(iii) and 416.912(b)(1)(iii) to avoid
confusion with the standard for submission of evidence in this final
rule, which is the submission of all evidence that ``relates'' to the
disability claim. These sections must still be read, however, in
conjunction with final Sec. Sec. 404.1512(b) and 416.912(b), where we
define the term ``evidence'' as ``anything you or anyone else submits
to us or that we obtain that relates to your claim.'' (Emphasis added).
All of the categories of ``evidence'' that we go on to define in these
sections, such as the ``other statements'' referred to in final
Sec. Sec. 404.1512(b)(1)(iii) and 416.912(b)(1)(iii), are, therefore,
limited in scope to those that relate to the disability claim.
The Privilege and Work Product Exceptions
Comment: Two commenters expressed concern about our extension of
the protections afforded by attorney-client privilege and the attorney
work product doctrine in proposed Sec. Sec. 404.1512(b)(2)(iii) and
416.912(b)(2)(iii) to non-attorney representatives. One of these
commenters said non-attorney representatives have no experience or
knowledge of what these privileges protect; therefore, the claimants
they represent may not have the same protections as claimants who are
represented by attorneys. The other commenter said it was not practical
or reasonable to require non-attorneys to make legal judgments about
what communications would be subject to these privileges. This
commenter also said that extension of these privileges to non-attorney
representatives would cause confusion and uncertainty, resulting in
detriment to claimants.
Response: We disagree with the commenters for several reasons.
First, we defined both types of privileges in plain language and gave
examples of what would and would not be covered by each privilege in
the NPRM and in this final rule.\24\ Second, our current ``Rules of
conduct and standards of responsibility'' apply to all
representatives,\25\ and we do not believe there is any basis to
distinguish between attorney and non-attorney representatives regarding
their duty to help obtain the evidence that claimants must submit. We
would disadvantage certain claimants if we did not apply the
protections afforded by these privileges to non-attorney
representatives. For example, claimants who are represented by non-
attorney representatives would have to disclose information that a
claimant represented by an attorney representative would not be
required to disclose. Finally, as recommended by ACUS, we believe that
any changes to our evidence regulations should apply to both attorney
and non-attorney representatives because, under the Social Security Act
and our rules, a claimant has the right to be represented by either an
attorney or a qualified non-attorney representative.\26\
---------------------------------------------------------------------------
\24\ 79 FR at 9665-66.
\25\ See 20 CFR 404.1740 and 416.1540.
\26\ ACUS Final Report at 38.
---------------------------------------------------------------------------
Comment: Several commenters said the requirement for attorney
representatives to assist claimants in submitting related but
unfavorable evidence would violate their state bar ethics rules
requiring the preservation of client confidentiality and zealous
representation. One of these commenters said this requirement would
also violate state bar rules because it would require the submission of
attorney work product. Some of the commenters expressed concern about
situations where claimants direct their attorneys to withhold
unfavorable evidence, which may leave the attorneys with having to
choose between following their clients' instructions and complying with
a representative's duty to help the claimant obtain the information or
evidence that he or she must submit under the final rule.
Response: We disagree with the commenters. In proposed (now final)
Sec. Sec. 404.1512(b)(2)(i) and 416.912(b)(2)(i), we exclude from the
definition of evidence oral and written communications between
claimants and their representatives (attorney or non-attorney) that
are, or would be, subject to the attorney-client privilege, unless the
claimant voluntarily discloses them to us. In proposed (now final)
Sec. Sec. 404.1512(b)(2)(ii) and 416.912(b)(2)(ii), we also exclude
from the definition of evidence the information that is generally
subject to the attorney work product doctrine.\27\ We drafted the
requirement for claimants to inform us about or submit all evidence
that relates to the disability claim with the attorney client and
attorney work product privileges in mind, and believe that the final
rule does not require an attorney to violate his or her ethical duty to
keep client communications confidential \28\ or require the submission
of attorney work product.
---------------------------------------------------------------------------
\27\ As we explained in the NPRM, this doctrine protects an
attorney's analysis, theories, mental impressions, and notes from
disclosure. 79 FR at 9666 (footnote omitted).
\28\ As we noted in the NPRM, however, the attorney-client
privilege does not protect the disclosure of underlying facts that
the claimant communicates to the attorney; it protects only the
disclosure of the communication, itself. Id. at 9665.
---------------------------------------------------------------------------
In addition, while we acknowledge that state bar rules generally
require client confidentiality and zealous representation, we do not
believe state bar rules prevent an attorney from complying with our
Federal rule, which requires a representative to help a claimant
satisfy his or her disclosure
[[Page 14833]]
obligation. As ACUS noted, the American Bar Association's (ABA) 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.'' \32\
---------------------------------------------------------------------------
\29\ ACUS Final Report at 33-34 (citing the ABA's Model Rules of
Professional Conduct section 1.6(b)(6) (2012).
\30\ See Robert Rains, Professional Responsibility and Social
Security Representation: The Myth of the State-Bar Bar to Compliance
with Federal Rules on Production of Adverse Evidence, 92 Cornell L.
Rev. 363, 390 (2007).
\31\ Id. at 392.
\32\ Id.
---------------------------------------------------------------------------
Furthermore, we are unaware of any other forum that permits
attorneys to withhold unfavorable evidence, if it relates to an issue
in the case. Under this final rule, we expect all representatives
(attorney or non-attorney) to inform the claimants they represent that
we do not permit the withholding of any evidence related to the
disability claim, even if it is unfavorable. Accordingly, in the
situation described by several commenters where the claimant directs
the representative to withhold unfavorable evidence, that communication
is privileged, but the evidence would still have to be produced.
Comment: One commenter recommended that we extend the protections
afforded by attorney-client privilege to non-authorized
representatives, such as physicians, licensed clinical social workers,
and other licensed health care providers. The commenter noted that many
of these professionals engage in privileged communications with their
patients, and they sometimes assist patients with their disability
claims. Therefore, the commenter said we should also regard these
communications as privileged.
Response: We did not adopt the comment. When claimants apply for
disability benefits, they sign an authorization form that permits all
medical and certain other sources to disclose all medical records and
other information related to the claimant's ability to perform
tasks.\33\ Therefore, claimants cannot keep these otherwise privileged
communications about their physical or mental condition(s) private.
---------------------------------------------------------------------------
\33\ See Form SSA-827, Authorization to Disclose Information to
the Social Security Administration.
---------------------------------------------------------------------------
Comment: One commenter believed that our exception for privileged
communications between claimants and their representatives, unless
voluntarily disclosed by the claimant, would permit us to communicate
directly and impermissibly with claimants instead of their
representatives.
Response: We disagree with the commenter. In final Sec. Sec.
404.1512(b)(2)(i) and 416.912(b)(2)(i), we exclude from the definition
of ``evidence,'' \34\ oral and written communications between claimants
and their representatives, unless the claimant voluntarily discloses
them to us. The attorney-client privilege belongs to the client, and
only the client can waive this privilege. The exception for voluntary
disclosure of otherwise privileged communications in final Sec. Sec.
404.1512(b)(2)(i) and 416.912(b)(2)(i) is in recognition of this legal
principle; it does not mean we intend to communicate directly with
claimants who have representatives assisting them with their disability
claims.\35\
---------------------------------------------------------------------------
\34\ We describe what we mean by ``evidence'' in final 20 CFR
404.1512(b)(1) and 416.912(b)(1).
\35\ Under our policy, if a claimant appoints a representative,
we make all contacts in connection with that claim or a post-
entitlement issue through, or with the permission of, the appointed
representative. This policy is subject to exceptions when the
representative asks us to deal directly with the claimant, the
claimant alleges blindness or a visual impairment and elects to
receive notices by first class mail with a follow-up telephone call
from us to read the notices, there is an indication that a
representative's appointment may have expired, or the contact
involves a possible violation by the representative. See POMS GN
03910.050A (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0203910050).
---------------------------------------------------------------------------
Comment: Several commenters asked why we proposed a more limited
version of the work product doctrine in Sec. Sec. 404.1512(b)(2)(ii)
and 416.912(b)(2)(ii) than is recognized under Rule 26(b) of the
Federal Rules of Civil Procedure. Several of these commenters said a
more limited version of the work product doctrine would deter
representatives from having candid discussions with a claimant's
medical sources, due to the potential of having to disclose an
unfavorable or inaccurate written report. Some commenters said that
representatives would have to disclose written opinions received from
medical experts, even if the expert was not going to testify. The
commenters recommended we adopt the full scope of the work product
doctrine, so representatives could withhold this type of evidence.
Response: We did not adopt the comments. We proposed a more limited
version of the work product doctrine because we believe program
integrity requires us to obtain complete medical evidence (favorable or
unfavorable) in disability claims. Therefore, we expressly stated in
proposed (now final) Sec. Sec. 404.1512(b)(2)(ii) and
416.912(b)(2)(ii) that representatives could not withhold any medical
evidence or medical source opinions based on the attorney work product
doctrine. As we explained in the NPRM, if a claimant's medical source
sends his or her representative medical records or a written opinion
about the claimant's medical condition, the representative cannot
withhold those records or that opinion based on the work product
doctrine adopted under these rules.\36\ If those records or that
opinion contains an inaccuracy or unfavorable information, then
claimants or their representatives can explain this to us.
---------------------------------------------------------------------------
\36\ 79 FR at 9666.
---------------------------------------------------------------------------
In addition, representatives may still protect from disclosure
their consultation with any medical source about the claimant's medical
condition. As we stated previously, if a representative takes notes
during a discussion with a claimant's medical source, those notes are
protected from disclosure as work product. Moreover, under the final
rule, the representative does not have to request a written opinion
from any medical source. Therefore, representatives can fully
investigate the merits of any disability claim, and they do not have to
disclose the results of their investigation, unless they obtain a
medical record or a written opinion from a medical source.
The Submission of Evidence In Its Entirety
Comment: Many commenters asked whether our proposal in Sec. Sec.
404.1512(c) and 416.912(c) to require the submission of evidence from a
source in its entirety would create a duty on the part of claimants (or
their representatives) to request and submit all medical records from
all treating sources. Several commenters asked
[[Page 14834]]
whether claimants (or their representatives) should request all records
from a treating source or only those dated after the onset of
disability. Some of the commenters noted that medical records could be
costly and difficult for some claimants to obtain. One of these
commenters said treating sources do not always send all the records
requested, and another commenter noted that sometimes a doctor sends
records for someone other than the claimant by mistake. Another
commenter described the example of a hospital file numbering 1000 pages
or more and asked whether a representative could simply request and
submit the discharge summary. Other commenters asked whether we would
still be requesting and paying for medical records from sources
identified by claimants. One commenter asked whether claimants would
now have to obtain and submit not only all medical evidence, but also
all non-medical evidence that relates to the disability claim. Another
commenter recommended that we lower the burden on claimants to submit
all related non-medical evidence, because its evidentiary value is less
than that of medical evidence. Another commenter suggested we require
claimants to submit only medical evidence in its entirety.
Response: We are modifying proposed (now final) Sec. Sec.
404.1512(c) and 416.912(c) to clarify that claimants must submit
evidence ``received'' from another source in its entirety. We did not
intend in these sections to impose a duty on claimants or their
representatives to request and submit all evidence (medical and non-
medical) from all sources, and we believe this clarification makes that
intent more clear. For example, if claimants or their representatives
request only the discharge summary from a hospital chart, we require
them to submit only what they receive in response to that request in
its entirety. We would not require them to request and pay for all of
the other records from that hospitalization. We would also not require
them to submit any record for a person other than the claimant, sent by
mistake, because it clearly would not relate to the disability claim.
Moreover, as we proposed in Sec. Sec. 404.1512(a) and 416.912(a)
and explained in the NPRM, by requiring claimants ``to inform us about
or submit'' all evidence that relates to the disability claim, we are
not shifting our responsibility for developing the record to claimants
\37\ or their representatives.\38\ For example, we currently request
the names and addresses of medical sources in our disability
application process.\39\ Under the final rule, we expect claimants to
respond fully by providing that information; we will then obtain the
records from those sources. As we previously stated, we also expect
claimants to respond fully to any other requests we make for
information or evidence related to their disability claims.
---------------------------------------------------------------------------
\37\ Id. at 9665 (emphasis added).
\38\ Id. at 9666.
\39\ These are the Form SSA-3368-BK, Disability Report--Adult
(available at: http://www.socialsecurity.gov/forms/ssa-3368.pdf),
and the Form SSA-3820-BK, Disability Report--Child (available at:
http://www.socialsecurity.gov/forms/ssa-3820.pdf).
---------------------------------------------------------------------------
Comment: Many commenters expressed concern about our requirement
for claimants to submit evidence from another source in its entirety,
because it would require the submission of potentially duplicative
evidence. One of these commenters described the example of when a
representative submits medical records from a treating source and then
requests updated records; the source sends everything he or she has
already provided, plus the updated records. Another commenter noted
that our adjudicators sometimes instruct claimants (or their
representatives) not to submit duplicative records. The commenters
recommended we not require the submission of evidence that is already
in the claim file, because that evidence can be costly for claimants to
resubmit and time-consuming for our adjudicators to review. To avoid
duplicative evidence, one commenter recommended that we not require
claimants to submit any evidence previously submitted by them. Other
commenters recommended that we simply not require the submission of any
duplicative evidence.
Response: We partially adopted the comments by clarifying in final
Sec. Sec. 404.1512(c) and 416.912(c) that evidence from another source
must be submitted in its entirety ``unless you previously submitted the
same evidence to us or we instruct you otherwise.''
For example, in the scenario described above about the receipt of
duplicative medical records from a treating source, the representative
is only required to submit the updated records; he or she would not
have to submit any record duplicative of the one previously submitted.
In addition, by ``duplicative,'' we mean an exact duplicate of a
document in the record, and not simply the substance of what is in the
record.
The other exception we provide in final Sec. Sec. 404.1512(c) and
416.912(c) is for when one of our adjudicators directs claimants or
their representatives not to submit duplicative evidence; in that case,
they would not have to submit that evidence under the final rule. We do
not believe it is advisable to preclude the submission of all
duplicative evidence, however, because this would impose a duty on
claimants to review their files before submitting new evidence. For
claimants who do not have representatives, this could be a significant
burden in some cases. Not requiring claimants (or their
representatives) to resubmit the same evidence they previously
submitted is, however, reasonable. We believe the two limited
exceptions for duplicative evidence specified in final Sec. Sec.
404.1512(c) and 416.912(c) will underscore the importance of submitting
evidence received from another source in its entirety and better ensure
our goal of having more complete case records on which to make more
accurate disability determinations and decisions.
Comment: One commenter believed the proposed revisions to our
regulations governing the submission of evidence would require
claimants to get representatives.
Response: We disagree with the commenter. We did not propose any
change to our regulations that would require claimants to get
representatives. In addition, by stating that the claimant's duty to
submit evidence now includes the option to simply ``inform us about''
evidence that relates to the disability claim,\40\ we believe it will
be easier for claimants to comply with their duty to submit evidence.
Our responsibility to assist claimants in developing the record also
remains unchanged.
---------------------------------------------------------------------------
\40\ See final 20 CFR 404.1512(a) and 416.912(a).
---------------------------------------------------------------------------
Comment: Many commenters said our requirement in proposed
Sec. Sec. 404.1512(c) and 416.912(c) for claimants to submit evidence
from another source in its entirety would burden our adjudicators with
an excessive amount of potentially irrelevant evidence. Several of
these commenters noted, for example, that medical records from some
sources (such as the Department of Veterans Affairs) can be voluminous,
and the time spent reviewing those records would cause delays in the
adjudication of disability claims. Several of these commenters said a
provider's medical records could include evidence that is unrelated to
the disability claim. Other
[[Page 14835]]
commenters expressed concern about whether our adjudicators would
carefully review voluminous records submitted by claimants (or their
representatives). Several commenters said it would be preferable for
claimants or their representatives to exercise their own judgment and
submit only those records or other evidence that they think is
relevant.
Response: We disagree with the commenters. We do not believe the
requirement to submit all evidence received from another source in its
entirety will burden our adjudicators with having to review unnecessary
evidence in most cases. First, as we previously stated, we did not
intend in proposed (now final) Sec. Sec. 404.1512(c) and 416.912(c) to
require claimants (or their representatives) to request and submit all
medical and non-medical evidence from all sources, and we modified
these sections to clarify that claimants must only submit evidence
``received'' from another source in its entirety. We did not adopt the
comments recommending that we permit claimants or their representatives
to decide what evidence they would like to submit from these other
sources, because this would undermine the purpose of the final rule,
which is to enable us to have more complete records on which to
adjudicate claims more accurately.
Second, as we previously stated, we modified proposed (now final)
Sec. Sec. 404.1512(c) and 416.912(c) to require the submission of
evidence received from another source in its entirety, unless
previously submitted by the claimant or otherwise instructed by us in a
particular case. We believe these exceptions to the general requirement
for submission of evidence in its entirety will reduce the receipt of
duplicative and, therefore, unnecessary evidence.
Finally, we do not share the concerns of the commenters who said
the submission of voluminous documents by claimants or their
representatives would burden our adjudicators and delay the
adjudication of disability claims. For example, when a claimant has had
extensive medical treatment, it is already our practice to request
complete medical records, unless we can decide the claim based on
minimal objective medical evidence, as in the case of a compassionate
allowance.\41\ Our program experience shows that our adjudicators have
little difficulty reviewing medical and other evidence expeditiously to
find the information they need to decide the claim. We also continue to
expand our use of HIT, which enables us to speed our review of medical
records, even when they are voluminous. We intend to take full
advantage of this technology as it becomes more widespread in the
medical community.
---------------------------------------------------------------------------
\41\ For more information about compassionate allowances, see
www.socialsecurity.gov/compassionateallowances.
---------------------------------------------------------------------------
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 final 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 final 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
These rules do not create any new or affect any existing
collections and, therefore, do not require Office of Management and
Budget approval under the Paperwork Reduction Act.
(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).
Carolyn W. Colvin,
Acting Commissioner of Social Security.
For the reasons stated in the preamble, we 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
[[Page 14836]]
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. This duty
is ongoing and requires you to disclose any additional related evidence
about which you become aware. This duty applies at each level of the
administrative review process, including the Appeals Council level if
the evidence relates to the period on or before the date of the
administrative law judge hearing decision. 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 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 received from another source, you
must submit that evidence in its entirety, unless you previously
submitted the same evidence to us or we instruct you otherwise. 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:
[[Page 14837]]
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
(vi) and add paragraph (b)(2)(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).
Subpart A--[Amended]
0
9. In Sec. 405.1, revise the first sentence of paragraph (c)(2) to
read as follows:
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 of this
chapter). * * *
* * * * *
Subpart D--[Amended]
0
10. In Sec. 405.331, revise the first two sentences of paragraph (a)
to read as follows:
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. This duty
is ongoing and requires you to disclose any additional related evidence
about which you become aware. This duty applies at each level of the
administrative review process, including the Appeals Council level if
the evidence relates to the period on or before the date of the
administrative law judge hearing decision. 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. 416.904);
(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
[[Page 14838]]
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 received from another source, you
must submit that evidence in its entirety, unless you previously
submitted the same evidence to us or we instruct you otherwise. 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.
* * * * *
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
(vi) and add paragraph (b)(2)(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. 2015-05921 Filed 3-19-15; 8:45 am]
BILLING CODE 4191-02-P