The Administrative Conference of the United States (ACUS) Weighs In on Social Security Administration (SSA) Policy

One of the issues that the Social Security Administration (SSA) has faced ongoing criticism for, from Congress and others, is its policy on the submission of adverse evidence. As they’re written, the SSA’s rules require claimants and their representatives to submit evidence to substantiate their disability claims and deal forthrightly with the agency, but do not clearly state an obligation to submit ALL evidence (supportive and adverse) for consideration in disability decisions.

In response to Congressional criticisms of its lopsided policy on the submission of evidence, the SSA asked the Administrative Conference of the United States (ACUS), an independent, consensus-driven collection of experts from the federal government and the private sector dedicated to improving the functions of government, to study the role of candor and ethical obligation in the SSA’s evidence submission policies.

The ACUS report provided a number of recommendations for changes the SSA might implement to accommodate a more inclusive (i.e. of adverse as well as supportive evidence) policy on the submission of evidence. To that end, the report offered a list of guiding principles should the SSA decide to re-write its policy:

1. Charge the claimant, rather than his representative, with the responsibility to provide all relevant evidence, and penalize incomplete submission with termination of benefits. Furthermore, suspend and/or disqualify claimant representatives for knowingly withholding evidence.
2. Both attorneys and non-attorney claimant representatives should be bound by any policy changes.
3. Any new disclosure policies should be ancillary to preexisting legal privileges such as attorney-client confidentiality.
4. Unless the claimant representative is wittingly party to fraud, then any new SSA policies need not trump state laws of professional conduct.
5. Write any new disclosure policies clearly enough to prevent claimants and/or claimant representatives from having to make subjective judgments about what evidence is relevant.

The SSA is in no way obligated to implement any of the ACUS’s recommendations. Whether it will choose to do so remains to be seen.