Posted on March 28th, 2017

For years a debate existed in SSA claims as to what evidence had to be submitted to SSA.  The burden of proof has always been on the claimant and counsel to prove the claimant was “disabled”.   A claimant is presumed to be “not disabled” until he or she proves to SSA’s satisfaction that disability exists.  There was no single pronouncement, be it by SSA,  state bar rules, etc. whether a claimant must also, as appropriate, prove he or she in not disabled.

To no one’s huge surprise, in April 2015, SSA ended all the debate and ruled that the claimant and/or counsel must submit ALL evidence. “Relevance” was deleted from the equation.  “Work product” was deleted from the equation.  State bar rules as to evidence and ethics were deleted.  As simply concluded by SSA all or everything had to be submitted.  This rule also applied to unrepresented claimants so not having representation or firing representative after harmful evidence was discovered does not “save” the claim.

SSA, in its public comments associated with this new regulation, admitted these new provisions would lead to more denial of claims.  It would then be up to the skills of a claimant’s representative to argue why SSA or the ALJ should not give greater weight to the more harmful evidence.

There are still ways to deal with this issue.  It is incumbent upon claimants to provide much greater detail as to their medical treatment, both doctors, clinics, and hospital, etc.  Saying I don’t remember the doctor’s name, the address, periods of treatment, complicates the task of the representative and could adversely affect your ability to win a claim.  Virtually every ALJ, at the beginning of a hearing will ask if the record is now complete.  In combination with another new rule requiring the submission of all evidence 5 days before the hearing, your representative might no longer be able to submit helpful evidence you neglected to talk about or forgot.

It is now even more critical that you have a candid conversation with your doctor(s) as to whether they believe you are “disabled” or not.  Do not innocently believe every doctor is supportive of every patient as being disabled.  Claimants that are naive will either buy my share of the Brooklyn Bridge or suffer the denial of their claim. Even if doctors think you are “disabled”, some will elect to not get involved in SSA claims at all.

The process of obtaining medical records is becoming more complex and expensive.  SSA does not have the manpower or financial appropriations to obtain all the records from all of the sources identified to it.  I understand the intent of this rule but believe it is misguided in its implementation.  SSA allows us to either provide the records or identify the source(s) so SSA can obtain them over time, hopefully, the diversion of resources to obtain all of this evidence might cause SSA to revisit this issue.  Claimants and representatives do not have the funds to obtain all of this evidence.


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