All Means All: The Duty to Submit “All Evidence” in Social Security Disability ClaimsMonday, January 8, 2018
(Reprinted with permission by the Nassau County Bar Association.)
Following increased media and political scrutiny, the Social Security Disability claims process came under fire in 2015. As 2016 begins, the fire is still burning and many are left wondering how to control the flames. The predominantly negative attention the Social Security Disability claims process received resulted from reports of fraud by benefit recipients and alleged misconduct by attorneys representing disabled claimants, including one such attorney from Nassau County. 1 Despite the isolated misconduct, the Social Security Administration took widespread action across the country to combat what they perceived to be a greater problem, leading to the new “all evidence” rules.
Effective April 20, 2015, the “all evidence” rules were adopted as a means to clarify what evidence must be submitted in disability claims. 2 The Social Security Administration took action following allegations that when submitting evidence in disability claims, some representatives deliberately withheld evidence they deemed unfavorable to the claimant. 3 The new “all evidence” rules altered the long accepted standard that representatives must submit only evidence they deemed “material” to the disability determination; now they must submit any evidence that “relates” to the determination. 4 A simple change of one word altered the course of how representatives evaluate disability claims going forward. The rules define “relates” as anything that shows or establishes a logical or causal connection between two things. 5 Such broad language creates a troublesome standard, as representatives are now required to submit evidence which is immaterial to the disability determination. This includes evidence prior to the alleged onset date of disability and evidence for impairments other than those alleged by the representative or the claimant.
It is well-known that many claimants applying for Social Security Disability benefits also have concurrent Workers’ Compensation benefits claims, Long Term Disability benefits claims, and/or Personal Injury claims. For those claims, insurance carriers with interests adverse to the claimant use Independent Medical Examinations, or IMEs, to oppose opinions of treating physicians. A negative or unfavorable opinion from an IME physician can lead to reduced benefits or settlements, denial of medical treatment, or both. While these IME reports have often wreaked havoc in Worker’s Compensation, Long Term Disability, and Personal Injury claims, the “all evidence” rules adopted by the Social Security Administration have extended the reach of the IMEs to the world of Social Security Disability.
Under the language of the “all evidence” rules, representatives must now submit IME reports from insurance carriers with interests adverse to the claimant. 6 As this evidence “relates” to the disability determination, the Code of Federal Regulations mandates its submission. 7 Although an experienced representative understands that the Social Security Administration has specific guidelines when evaluating disability, negative or unfavorable IMEs from physicians examining claimants for benefits outside the realm of Social Security Disability now enter the evidentiary record. Despite the advocacy from the representative, Administrative Law Judges who adjudicate Social Security Disability claims now have unfavorable medical opinions from physicians with no knowledge of the Social Security Disability process, paving the way for increased claim denials and more difficult appeals with a lower likelihood for success.
The effect of the “all evidence” rules on Social Security claimants cannot be understated. Moreover, what cannot be overlooked is the far-reaching effect a denial in a claim for Social Security Disability benefits has on Worker’s Compensation, Long Term Disability, and Personal Injury claims. A Long Term Disability carrier can use a Social Security Disability claim denial as a tool to initiate cutting off the claimant from receiving Long Term Disability benefits. A no fault insurance carrier in a Personal Injury claim can similarly use a denial from a Social Security Administrative Law Judge as evidence that the claimant’s injuries are not as severe as alleged. The “all evidence” rules have the potential to harm claimants far beyond their Social Security Disability claim. Now, evidence from a party with interests adverse to the claimant, from a completely separate claim, evaluated under different legal guidelines, must be submitted in accordance with the new rules.
The “all evidence” rules make sure to cover all bases, such that the Social Security Administration is alerted to all evidence in existence regarding the claimant. Should a representative be unable to obtain evidence despite his or her requests, it becomes the obligation of the representative to inform the Administration of the existence of any evidence which “relates” to the claim. 8This caveat extends the duty of the representative, as he or she can no longer satisfy his or her obligation by just requesting evidence; anything not received means it must be brought to the attention of the Administration. This requirement causes Administrative Law Judges to invoke their subpoena power and can lead to longer wait times for hearings, which are already approaching nearly two years from the date of an initial denial of a claim on Long Island.
While the IME reports from other claims can cause great harm to claimants, it is worth noting the “all evidence” rules are not specific to only medical evidence. Once again, they require representatives to submit or inform of “all evidence” which relates to the disability determination. 9 Thus, in a Worker’s Compensation claim, when the employer’s insurance carrier denies certain medical treatment, that evidence must be submitted. Such evidence allows Administrative Law Judges for the Social Security Administration to take into consideration that a claimant was denied treatment, even if the Administrative Law Judge does not have knowledge of the Worker’s Compensation system or treatment guidelines to understand why the denial occurred.
Furthermore, in a Worker’s Compensation claim, if an insurance carrier makes a determination that a claimant “voluntarily withdrew from the labor force,” that arguably “relates” to the disability determination. In such a case, that documentation would be required to be submitted to the Social Security Administration. An Administrative Law Judge could use such a withdrawal as an indictment of a claimant’s credibility, without further explanation of why the withdrawal occurred. The immediate result of the new “all evidence” rules has been and will continue to be increased denials at the Administrative Law Judge level, as claimants suffer at the hands of adjudicators in the Social Security Administration who do not have knowledge of other programs’ disability standards.
Looming over the “all evidence” rules is the fact that the Social Security Administration largely removed legal judgment from the evidence submission process. 10 While the previous rules required the submission of what is “material” medical and non- medical evidence, the Administration identifies judging materiality as a legal question. 11 In making the standard of submission evidence which “relates” to the determination, the Administration admittedly removes the legal judgment previously required by the old standards. 12 In shifting to a “relates” standard which allegedly removes the need for legal judgment, the Social Security Administration creates quite the paradox. As the evidentiary records become significantly more voluminous and the evidence within these voluminous files becomes increasingly more adverse to claimants despite the Social Security Disability system being non-adversarial, now more than ever claimants require competent representation and legal advocacy to combat and distinguish the adverse evidence.
1 William K. Rashbaum & James C. McKinley, 106 Are Charged in Lengthy Fraud Over Disabilities, N.Y. Times, Jan. 8, 2014, at A1.
2 220 C.F.R. §§ 404.1512(a), 416.912(a).
3 Submission of Evidence in Disability Claims, 79 Fed. Reg. 9663, 9664 (Feb. 20, 2014) (to be codified at 20 C.F.R. pts. 404, 405, & 416).
4 Submission of Evidence in Disability Claims, 80 Fed. Reg. 14828, 14829 (Mar. 20, 2015) (to be codified at 20 C.F.R. pts. 404, 405, & 416).
6 See 20 C.F.R. §§ 404.1512(a), 416.912(a).
8 Submission of Evidence in Disability Claims, 80 Fed. Reg. 14828, 14828 (Mar. 20, 2015) (to be codified at
20C.F.R. pts. 404, 405, & 416).
9 20 C.F.R. §§ 404.1512(a), 416.912(a).
10 Id. at 14829.