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What Evidence Must Be Submitted During a Social Security Disability Appeal?

Social Security Administration Enacts New Regulations Concerning the Submission of Evidence in Disability Cases

New federal Regulations were recently enacted that clarify and explain what type of evidence must be disclosed by claimants to the Social Security Administration in social security disability and supplemental security income cases. The Regulations also clarify the role that representatives must play in disclosing and submitting this evidence in such cases. These new provisions, which can be found in sections 404.1512, 404.1740, 416.912 and 416.1540 of part 20 of the Code of Federal Regulations, went into effect on April 20, 2015 and should apply to all future claims as well as any currently pending claims.

What Do the New Regulations Require?

The new rules require claimants to “inform [the Social Security Administration] about or submit all evidence known to you that relates to whether or not you are blind and disabled.” Previously, claimants were only required to inform Social Security about any information if they felt it was “helpful” to their case. The new standard is much broader and requires that any relevant evidence must be submitted. Critically, this means that both favorable and unfavorable evidence about the claimant’s disability must be submitted to the SSA. In other words, claimants and representatives cannot pick and choose which evidence to disclose or to submit—they must disclose or submit it as long as it is relevant to the claim. Evidence “relates” to a claim if shows or establishes that someone is or is not disabled. The duty to disclose information ultimately rests with the claimant; nevertheless, representatives have a duty to “act with reasonable promptness to help obtain the information or evidence that the claimant must submit under [the] regulations.” Although the evidence that must be disclosed encompasses virtually all relevant information, there are some limited exceptions as to what must be disclosed.

These exceptions include: 1) material subject to the attorney-client privilege, 2) the representative’s “analysis of the claim,” also known as attorney work product, and 3) duplicative evidence. 

The Regulations provide guidance on what type of information will be shielded by the privilege or what may constitute “work product.”For example, if an attorney takes notes of a conversation with a doctor, then the notes do not have to be disclosed. However, if the doctor writes a report at the request of the attorney, the attorney is obligated to disclose the report, even if it is unfavorable. The Regulations also instruct that duplicative evidence, or evidence that may already be in the file from another source, need not be disclosed or submitted. A typical example is where hospital records already in the case file are also contained in the treating physician’s file. Those duplicate notes need not be submitted. 

How Can Relevant Evidence Be Disclosed?

Relevant evidence can be disclosed by a claimant in a number of ways. First, when applications or appeals are filed, the claimant can and should provide information about all potential sources that possess information about the disability. Second, when routine forms are filed during the course of an appeal, the claimant can and should provide updated information, if any. Finally, if new information arises during the pendency of a claim (i.e. the claimant becomes “aware of additional related evidence”), the claimant must promptly notify the Administration of that evidence’s existence.

What Are the Consequences if Relevant Evidence is Not Disclosed?

Failure to disclose relevant evidence could result in fines and penalties from the Social Security Administration. The standard for imposing a civil monetary penalty requires the Social Security Administration to find that a person knowingly withheld “disclosure of a fact which the person knows or should know is material to the determination of any initial or continuing right to … [benefits or payments].” The person must have actual or constructive knowledge that the failure to disclose would be misleading. Representatives who fail to comply with the Regulations can also face sanctions ranging from disciplinary action to a prohibition from representing claimants before the Social Security Administration.

What Do These New Regulations Mean To Claimants?

The Regulations confirm claimants’ affirmative obligation to inform the Social Security Administration about all relevant evidence to their claims. It does not matter if the evidence might show that the claimant is actually not disabled; if it relates to the claimant’s case and his or her conditions, then it should be disclosed. Claimants will have to work closely with their representatives to provide complete and thorough information about their disability claims. This duty is continuing, meaning that if new information arises or is remembered at any point during the appeal process, it should be disclosed immediately. Open and honest dialogue between claimants and their representatives will be essential. Even if claimants are reluctant to disclose information due to the belief that some evidence might hurt their case, it should still be disclosed. A skilled representative can help soften the impact that this potentially negative evidence might have on a case. These Regulations are still very new, so it will take time to see just how they impact disability cases going forward. The significance of these Regulations cannot be understated, however. 

Contact Mahon, Quinn, & Mahon, P.C. for a free and confidential consultation if you have questions about these Regulations, or if you need assistance with a social security appeal.

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