TBA Law Blog

Posted by: Christy Gibson on Oct 11, 2012

By David Ettinger[1]

The debate among attorneys representing applicants for Social Security disability benefits over whether there is a duty to disclose unfavorable evidence to the Administration has been vigorous, intense and unending.  The argument in favor of a duty to disclose is extremely well stated by Professor Robert Rains, a highly respected advocate for disability applicants, in his law review article “The Advocate’s Conflicting Obligations Vis-a-Vis Adverse Medical Evidence in Social Security Proceedings” in the 1995 Brigham Young University Law Review.  While I defer to Professor Rains, I will briefly attempt to summarize the argument in favor of disclosure. 

First, Congress has enacted 42 U.S.C. § 1320a-8(a)(1) which states:  “Any person (including an organization, agency or other entity) who (A) makes, or causes to be made, a statement or representation of a material fact, for use in determining any initial or continuing right to or the amount of monthly insurance benefits under title II or benefits under title VIII or XVI, that the person knows or should know is false or misleading, (B) makes such a statement or representation for such use with knowing disregard for the truth, or (C) omits from a statement or representation for such use, or otherwise withholds disclosure of, a fact which the person knows or should know is material to the determination of any initial or continuing right to or the amount of monthly insurance benefits under title II or payments under titles VIII or XVI, 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, shall be subject to, in addition to any other penalties that may be prescribed by law, a civil money penalty of not more than $5,000 for each such statement or representation or each receipt of such benefits or payments while withholding disclosure of such fact.”  (emphasis added).  Equating the failure to disclose unfavorable evidence with the omission of a material fact, proponents of disclose view this federal statute as a mandate to disclose which under the supremacy clause overrides any state law prohibition on disclosure. 

The United States Supreme Court has described Social Security administrative hearings as non-adversarial.  Richardson v. Perales, 402 U.S. 389, 403 (1971).  Historically, in the early years of the disability program very few claimants had representation at their hearings and the Social Security Administration elected not to have a have representation at the hearings, but to instead rely upon the duty of the Administrative Law Judge to inquire fully and to ensure fairness to both the claimant and the Administration.  Although currently the vast majority of claimants are represented, the hearings remain “non-adversarial” because the Administration is not represented.  Proponents of disclosure, with support from several state ethics opinions, argue that Social Security’s non-adversarial hearings are, in fact, ex parte proceedings. In such proceedings, Rule 3.3(a)(2) of the Tennessee Rules of Professional Conduct requires that:  “(a) A lawyer shall not knowingly:...(3) in an ex parte proceeding, fail to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.”

While the above should make clear that the argument in favor of disclosure is substantial, the primary purpose of this article is to demonstrate that the Social Security Administration has consistently and repeatedly declined to interpret the statute as creating an obligation for claimants or their attorneys to submit adverse evidence.

On January 3, 1997, the Social Security Administration published proposed regulations establishing standards of conduct for individuals representing Social Security claimants.  Of note, proposed 20 C.F.R. §§ 404.1740(b)(2)(ii) and 416.1540(b)(2)(ii) required:  “Affirmative duties.  A representative shall:  (2) Comply with our requests for information or evidence at any stage of the administrative review process...This includes the obligation to:  (ii) Provide, upon request, all evidence and documentation pertaining to specifically identified issues which the representative or the claimant either has within his or her possession or may readily obtain, or notification after consultation with the claimant that the claimant does not consent to the release of some or all of the material.”  62 Fed. Reg. 352, 359-360. 

After considering public comments, including comments from the American Bar Association, the Administration removed from the final regulations the requirement that a representative notify the Administration when relevant evidence was not submitted:  “Many of the attorney commentators on the February 1995 draft stated that compliance with proposed...which in the February 1995 draft asked representatives to ‘[p]romptly comply, at every stage of the administrative review process with out request for information and evidence,’ might place them in violation of their own State bar rules requiring zealous advocacy and protection of confidential client information...we modified proposed [regulations]...to permit representatives to protect a client’s confidentiality by notifying SSA that ‘the claimant does not consent to release of some or all of the [requested] material’...[causing] many commentators, including the ABA, to state that the proposed revision would ‘red flag’ this evidence and permit ALJs and SSA to draw adverse inferences....The commentators believed that this issue raised serious ethical concerns and observed that notifying SSA of the claimant’s refusal to submit evidence could subject them to sanction by their State bar association for failing to protect the confidences and secrets of their clients...Because of the confusion and ethical concerns surrounding this proposed language, we have removed it from the final regulations...”  63 Fed. Reg. 41404, 41413 (August 4, 1998). 

The Social Security Administration committed a nearly identical reversal in 2005 and 2006.  On July 27, 2005, the Administration published proposed 20 C.F.R. § 404.1521(c) which required that:  “You must provide evidence showing how your impairment(s) affect(s) your functioning during the time you say that you are disabled, and any other information that we need to decide your claim, including evidence that you consider to be unfavorable to your claim...”  70 Fed. Reg. 43590, 43607.  When a final regulation was published on March 31, 2006, it had been revised to require only that:  “You must provide evidence, without redaction, showing how your impairment(s) affect(s) your functioning during the time you say that you are disabled, and any other information that we need to decide your claim...”  71 Fed. Reg. 16424, 16444.  Responding to comments, the Administration said:  “Finally, we agreed to remove language requiring claimants to submit evidence adverse to their claims because the comments revealed that the requirement was too confusing.  We clarified, however, that when claimants submit evidence, such as a medical report, the evidence must not be redacted.”  71 Fed. Reg. 16424, 16437. 

The latest episode in this continuing controversy was spurred by a December 22, 2011 article in the Wall Street Journal reporting that a volume provider of Social Security representation:  “routinely withheld from government submissions medical records that they believed to be potentially damaging to client claims.”  Asked to comment on the article during a May 17, 2012 hearing before the Senate Finance Committee, Social Security Commissioner Michael Astrue testified:  “But that article was relatively thin in terms of the content of allegations.  There really was not, in my opinion, very much there.  It’s also based in part on the misassumption that there’s a requirement  for all relevant evidence to be provided to the judge.  Right now, that is not the law.  The two previous Commissioners tried to make that the law and my understanding is that they received a lot of opposition and not much support here in Congress for that....First of all, the Wall Street Journal had it dead wrong on what the law is....When you realize, first of all, that there is not a legal obligation to present every bit of evidence to the Agency because out rules are not written that way, there is a factual error underlying the whole article.”  Social Security News, May 17, 2010.  http://socsecnews.blogspot.com/2012_05_01_archive.html

Lest one think this debate has reached conclusion, I note that the Administrative Conference of the United States at the request of the Social Security Administration recently issued a request for proposals for “a research project that will consider the Social Security Administration’s (SSA) statutory authority and current regulations regarding the duty of candor and the submission of all evidence in Social Security disability claims.”  http://www.acus.gov/wp-content/uploads/downloads/2012/07/SSA-Reps-Conduct-Project-RFP-6-21-12.pdf.  A final report is expected to be issued soon. 

This is a contentious issue which does not permit a compromise or middle ground solution.  Either one has a mandatory duty enforceable by criminal penalties to disclose adverse evidence or one is bound to protect the confidentiality of that evidence on pains of disciplinary action. Needless to say, regardless of one’s view, a clear rule is in the interest of all concerned.

[1] David Ettinger was a staff attorney with the Legal Aid Society of Middle Tennessee and the Cumberlands from 1978 until 2008.  Although he is currently an Administrative Law Judge employed by the Social Security Administration, the views expressed in this article are his personal views and do not reflect the views of the Social Security Administration or of the United States.