Attorney's ethics and disclosure of adverse evidence

The issue is simple to state: Is there a legal obligation on the claimant's attorney, in a social security disability case, to disclose adverse information that has come into the attorney's knowledge?

A social security disability hearing is not the typical trial. It is non-adversarial hearing¹, claimants need not be represented by counsel, there is no separate government attorney to advocate against claimant, and the Administrative Law Judge who proceeds over the matter, questions the claimant, is to be impartial and is the adjudicator the facts.

The claimant carries a burden during the adjudication process of proving that s/he is disabled and qualifies for benefits.² This burden on the claimant does not remove the burden placed upon the ALJ to, under the applicable regulations, to ensure that the claimant’s complete medical history is developed for at least the twelve months preceding the month in which the claimant filed his application. 20 C.F.R. §§ 404.1512(d).³

In representing the claimant and meeting the obligations imposed by regulation, there is a question; under what circumstances does the claimant and their representatives have an legal obligation to disclose adverse evidence to SSA? What if adverse evidence, is an adverse medical report from a personal injury or workers compensation action, or old reports which are counter to the majority of other evidence in claimant's file, does it have to be disclosed?

20 C.F.R. § 1320a-8(1)(C) provides a penalty for anyone who makes a statement for use in determining eligibility for disability benefits and:

“omits...or otherwise withholds disclosure of ...a fact which the person knows or should know is material to a determination of (eligibility for)...benefits...if the person knows or should know, that the statement or representation with such omission is false or misleading or that the withholding of such disclosure is misleading.” (italic added)

The foregoing is the current law, it is not very clear in what is required. Clearly there could have been a regulation put into effect that made a crystal clear requirement on disclosure of adverse information.

The present regulation, in my opinion, is clear that claimant and his/her representative provide evidence that support the disability claim. The claimant carries the burden of coming forth with sufficient evidence to support a claim for benefits. What seems unclear is the same burden placed on the claimant and his/her representative to produce evidence adverse to a finding of disability.⁴

The directive in the regulation that directs that the claimant is to produce “everything that shows that you are blind or disabled”, does not seem to endorse production of adverse evidence. Is there somewhere else to look for assistance?

Further reading of the regulation provides and additional directive to the claimant. A claimant must provide “medical and other evidence that can assist social security in determining “whether you are disabled.” That section of the regulation could be read to mean that the claimant produce adverse information.

The attorney representing a claimant must interpret the regulation in relation to the ethical obligations owed to his client. The attorney has a duty to zealously represent his client to the best of his ability. Disclosure of adverse information could be viewed as a violation of the attorney's (state imposed) ethical obligation to the client, unless there is a direct federal mandate for disclosure.⁵ I found none. Congress adopted the Social Security Protection Act of 2004, unfortunately it did not clearly require an attorney to disclose adverse information. The best that can be said is that the attorney cannot withhold a fact that the attorney knows or should know is material to a determination of whether the claimant is entitled to benefit.⁶

Adverse medical examinations in personal injury and workers compensation cases are not obtained for the claimant's benefit, for his treatment, or care, they are obtained by a representative of an insurance company trying to defend a claim made for injuries suffered by the claimant. Many times the expert's opinion favors the payer of the expert's charges and is in no manner an unbiased report. So such reports always rise questions for an attorney in the social security setting.

SOMETHING NEW!!!!
Social Security has proposed rulemaking @ 79 Fed. Reg. 9663 (Feb.20, 2014) which deals with th subject matter of this blog.

Proposed:  20 CFR §§ 404.1512(a) and 419.912(a) You must 'inform' us about or submit all evidence known to you that relates to whether or not your are blind or disabled.

The current rule requires a claimant "to prove to us that you are blind or disabled."

Apparently social security wanted to emphasize that it is not shifting the responsibility to develope the record to the claimant.

So what is proposed for the claimant's responsibility?  Under the above noted proposed sections under (c) for each is stated that: You must inform us about or submit all evidence known to you that relates to whether or not your are blind or disabled.  When you submit evidence from another source, you must submit that evidence in its entirety. 

Under a proposed change to the rules governing representative's responsibility there is a requirement to help to obtain the information.

This will be an interesting change and one wonders how it will work once put into effect.  We have an ALJ who issues a pretrial order directing that all evidence be submitted before the hearing.

Clearly, under the proposed rule that is an invalid/improper order.  It is not claimant's responsibility nor counsel to obtain records, at most there is an obligation to inform about such evidence.  If counsel has obtained adverse medical information, there appears to be no obligation on him/her to submit the evidence only to inform social security of the author of the records.  If social security does not obtain the records, that is a breach of its duty to develop the record.  It is an all other nothing issue.  If parts of the record are helpful and parts not, if the claimant wants that material submitted, all of the records must be submitted.  If the records are not helpful, a disclosure of the medical source is all that is required of claimant.

I could see some benefit in a close case, in which there is only one source that has any adverse evidence to disclose the source and see if the records are obtained prior to the hearing.  If they are nothing is lost, if they are not, the claimant's case benefits.

 

I had come to the decision to disclose adverse information, now if the new regulation becomes law, the decision may be to disclose but not turn over evidence.

Another reason to consider disclosure but not production is the cost to obtain the medical reports. If social security obtains the records, it does so at its cost.  Lastly,  the proposed regulation removes my prior reason I had settled upon to submit adverse evidence, such as, would a later discovery or disclosure during the hearing (as when the ALJ asks at the hearing if all evidence has been submitted) hurt the client's case? Or, if the ALJ discovers that evidence was available and not presented, it will that adversely affect how the judge views the attorney's presentation? These worries are rendered meaningless under the proposed regulation, since the burden to develop the record is clearly upon social security, disclose of the medical provider(s) is all that is requested of the claimant or counsel.

Under the proposed regulation, clearly support is given to my prior opinion that a pre-trial 'discovery order' by an ALJ, is improper. I had come to that opinion based upon portions of the HALLEX, the regulation and case law, arguing:

First, we have the regulation which describes an administrative hearing, 20 C.F.R. 404.900 --

“(b) Nature of the administrative review process. In making a determination or decision in your case, we conduct the administrative review process in an informal, nonadversary manner. In each step of the review process, you may present any information you feel is helpful to your case...”

The HALLEX, (Hearings, Appeals and Litigation Law Manual) is a publication from the Social Security Administration's Office of Disability Adjudication and Review (ODAR). ODAR administers hearings for people seeking reviews of their applications for disability benefits. HALLEX contains policy statements for carrying out the SSA's guiding principles.

Section I-2-5-14 deals with obtaining Medical Evidence from a Treating Source or Other Medical Source. It provides procedures under which the ALJ or social security staff can request such information from claimant or representative. There is no provision for directing a formal order at the claimant his/her representative to provide such evidence.

Section I-2-5-24 deals with claimant Fails or refuses to submit Evidence or undergo a Consultative Examination or Test. You would think that if there was a desire to use a formal order to facility discovery it would be under the situations covered by this section of the HALLEX, but again, there is no directive to use such a procedure.

There are cases, though directly not on point, do give some guidance. Britton v. Astrue, No. 07-1547(2008 7^th Cir.). The dealt with claimant's counsel's demand for information from the vocational expert. The Court in dicta noted:

“We recognize that the lack of pretrial discovery in Social Security hearings can make the task of cross examining a VE quite difficult....But refuse to endorse a system that drags out every social Security hearing to an interminable length.”

20 C.F.R. 405.334 is a new regulation dealing with prehearing statements, although not specifically on point, this regulation deals with the ALJ requesting that prehearing statements be submitted.  The regulation as drafted has no enforcement provision.  This would seem to enforce the lack of enforcement over an order directing disclosure of all evidence.

The proposed regulation clearly puts the burden on social security to develop the record, i.e. collect the evidence.  Such a pre-trial order is contrary to the regulation.

These are difficult issues and I assume will be dealt with on a case by case basis, because every case is different and presents different challenges for the attorney trying to obtain benefits for a client he believes to be disabled.

1Heckler v Campbell, 461 U.S. 458 @461 (1983); 20 CFR 404.900

220 C.F.R. § 404.1512(a)

3 Hilsdorf v. Commissioner of Social Security, 724 F.Supp.2d 330 (E.D. NY. 2010) citing Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999). An ALJ must engage in a reasonable effort to obtain the treating source records

420 C.F.R. § 404.1512

5Professional Responsibility and Social Security Representation: The Myth of The State-Bar To Compliance With Federal on Production of Adverse Evidence, Robert E. Rains, Cornell Law Review Vol. 92:363

6See footnote #4