On March 25, 2015, the Social Security Administration issued Final Rules that dramatically change a claimant’s duty to produce evidence in connection with his or her disability claim. Before these new rules, a claimant and his or her representative only had to provide medical evidence that established the existence of an impairment and its severity. They were prohibited from redacting evidence, but they did not have to produce evidence that tended to weigh against a finding of disability.
The new rules change that. Now the claimant (or representative) must produce, “all evidence known to you that relates to whether or not you are blind or disabled.” This includes potentially negative evidence. There are only two narrow exceptions. These are for any materials related to the representatives “analysis of your claim.” Although this is somewhat akin to a work product privilege, it is much narrower. Social Security considers this exception to include notes that a representative might take in talking to a witness, but it does not include any reports prepared by a medical expert hired by the representative, even if the representative did not intend to use the expert as part of the claim. The other exception is for materials protected by the traditional attorney-client privilege, such as correspondence between the attorney and client.
During the comment period, many people objected to the new rules on numerous grounds. These objections included fears that the new rules undermined the attorney’s ethical duty to provide zealous representation; that they did not give the claimant or representative the flexibility to withhold evidence that was clearly wrong or biased; and that they would make the claims process more adversarial. By and large Social Security brushed aside all objections, saying that the rules were needed to enhance its ability to reach the right decision in each case.
Clearly by reaching the right decision, Social Security means denying more claims. Over the past ten years it has been making a concerted effort to do just that. In 2006 it implemented a program in New England called “Disability Service Improvement” that was supposed to enhance Social Security’s ability to reach the right decision more quickly by imposing hard deadlines for the submission of evidence, making it harder to reopen prior applications, and appointing a “Federal Reviewing Officer” who could act as an advocate against granting benefits. The Federal Reviewing Officer has been scrapped, but many of the restrictive evidentiary and procedural rules have remained in effect in New England. Meanwhile grant rates have plummeted around the country. From 2000 to 2014, the percentage of applications that were ultimately granted shrunk from 46.72% to 32.16%, even as the number of applications has started to fall since its height during the peek of the Great Recession. See SSA Statistics. While this strategy may succeed in saving money for the Social Security Trust Fund, only time will tell whether it succeeds for America, or whether we will see deeper and prolonged poverty among Americans suffering from disabilities.