Ambiguities Surrounding the Social Security Administration’s (SSA) New Regulations on the Submission of Evidence

In our last entry, we explored the SSA’s new regulations on the submission of evidence (hereafter the “all evidence” rules) that took effect on April 20, 2015. Now, we will consider some of the ambiguities surrounding their implementation, interpretation, and impact.

According to attorney Eric Schnaufer, who has written about and presented on the new regulations, all claimant representatives will likely have to revise, to a greater or lesser extent depending on the nature of their prior practices, the way they keep records and advocate for their clients due to the ways in which the new “all evidence” rules have changed the scope of submission requirements for disability claims.

One important note about the new “all evidence” rules is that they require representatives to submit all evidence they have received, but do not require representatives to obtain all evidence. Rather, under the new rules, a representative must submit all evidence received and inform the SSA of any additional evidence that is known to exist but that the representative does not possess.

Schnaufer also suggests that the new rules might cause some friction between Administrative Law Judges (ALJ) and claimant representatives due to the responsibility the “all evidence” rules bestow on the latter to do everything within reason to ensure that claimants submit all relevant evidence promptly. Schnaufer predicts that some ALJs will use that directive to require representatives to collect evidence that the SSA has been made aware of but that has not been furnished due to reasonable objections made on the claimant’s behalf, such as the cost of obtaining certain types of evidence.

Medical source statements (SSA-approved medical opinions about what a claimant’s limitations are, due to his impairment) are required submissions under the new rules. However, while completed opinion forms must be submitted, a representative need not disclose any unwritten communications with a medical source about the claimant’s impairment. Nor is he required to request a written opinion from a medical source.

Finally, the “all evidence” rules do not provide any information about the closing of a hearing at the ALJ level or about any kind of time frame for submitting additional evidence while a claimant is waiting on a pending request for review of an ALJ’s decision from the Appeals Council. Schnaufer argues that, regarding the issue of a time frame, the “all evidence” rules and those of the Appeals Council are difficult to reconcile, and that the “all evidence” rules go even so far as to provide a basis for disregarding the Appeals Council’s time limit rules.

These are only a few of the unknowns surrounding the new regulations. Schnaufer estimates that it could take up to a year, if not longer, for their full impact to become apparent.