Claimants and their representatives are obligated to submit all "related" evidence to the Social Security Agency. What does this mean- related? How should this be done: should all received evidence be submitted? What about evidence that the claimant did not know existed until sometime in the waiting process? Statements from friends or family members- is this evidence? Related claims such as workers compensation claims or private liability matters involving an accident- is this evidence? SSA's new regulations regarding the submission of evidence have been in effect since April 21, 2015. (80 Fed. Reg. 14828 March 20, 2015) The purported intent of the rules was to clarify and simplify the rules governing submission of evidence for representatives. The regulations were drafted so as to inform representatives and claimants what was to be submitted and to "better describe" the duty to submit all evidence related to a disability claim. The intended result was supposed to be more accurate disability determinations and decisions because these would be based on complete evidence. The previous regulations described the duty to submit evidence based on the "materiality" of the medical and non-medical evidence; "material" involves a legal definition and judgment and presumably a more complicated and difficult standard.

What do the new rules require?

The new rules at Sections 404.1512 and 416.912 require that claimants must submit all evidence received from another source in its entirety; this(presumably) bans any redacting or editing of the evidence and allows the Social Security Agency to see and evaluate all of the evidence related to the claim for disability. [There are two exceptions, namely, attorney client privilege matters and attorney work products, to the broad definition of evidence.] The SSA states that evidence is defined as "anything you or anyone else submits to us or that we obtain that relates to your claim." Therefore, the term "relates" in its ordinary definition would include evidence that shows or establishes a logical or causal connection between two things. In the case of disability, this would include anything linking an alleged symptom, sign or limitation to the claimant's medical condition(s) in general including the alleged disabling impairment and any other medical condition. Moreover, the rules also require that evidence regarding the claimant's medical impairments which are not alleged to be disabling should also be submitted. Whether the material or evidence is favorable or unfavorable to the claim is not to be considered by the representative or claimant in submitting the evidence; the expectation is that claimants ought to exercise good judgment and reasonableness in their decision to submit evidence.

The new rules at Sections 404.1512 and 416.912 require that claimants must submit all evidence received from another source in its entirety; this (presumably) bans any redacting or editing of the evidence and allows the Social Security Agency to see and evaluate all of the evidence related to the claim for disability. [There are two exceptions, namely, attorney client privilege matters and attorney work products, to the broad definition of evidence.] The SSA states that evidence is defined as "anything you or anyone else submits to us or that we obtain that relates to your claim." Therefore, the term "relates" in its ordinary definition would include evidence that shows or establishes a logical or causal connection between two things. In the case of disability, this would include anything linking an alleged symptom, sign or limitation to the claimant's medical condition(s) in general including the alleged disabling impairment and any other medical condition. Moreover, the rules also require that evidence regarding the claimant's medical impairments which are not alleged to be disabling should also be submitted. Whether the material or evidence is favorable or unfavorable to the claim is not to be considered by the representative or claimant in submitting the evidence; the expectation is that claimants ought to exercise good judgment and reasonableness in their decision to submit evidence.

Because the duty to inform and submit to the SSA all evidence related to a disability claim is ongoing, certain sections of the final rule have been modified to clarify that a claimant or his/her representative must disclose any additional evidence related to their disability claim "about that which they are aware." Therefore, a claimant must disclose evidence as they become aware of it even if they did not know of the evidence when they first filed for disability. This ongoing duty to submit evidence applies at each and every level of the administrative process including the Appeals Council if it relates to the period in question at the time of the most recent hearing decision. Evidence includes requests for information from the SSA. For example, the adult disability reports or questionnaires ask questions pertinent to work activities, job history and activities of daily living in addition to questions regarding medical treatment, medications, and providers are made part of the record and may be regarded as "evidence."

Tip: As soon as possible, obtain a copy of the medical records and carefully examine the records for any obvious inconsistencies or discrepancies. Advise your client to keep a journal or calendar in which they note symptoms such as pain, extreme fatigue, dizziness, migraines, etc., and make sure that they take the journal/calendar to their medical provider on a regular basis so that these notations become part of the medical record itself.

Discussions about potential invasions of privacy as raised by the query about HIV status or abortions, for example, were essentially ignored or finessed by the Agency in its response to the commentaries.1 The response repeated the expectation by the Agency that claimants were expected to exercise reasonable and good faith judgment and repeated the admonition that the Agency would consider all of the evidence regarding the claimant's impairments and not just the ones alleged to be disabling. The Agency further responded that it has a duty to develop a medical history for at least the 12 months preceding the date of disability and this would (presumably) include evidence of treatment for other medical conditions that might "relate" to the claimant's overall medical condition.  The Agency states that it expects the adjudicators to, in turn, exercise their good faith judgment and when requesting information from the claimants or their representatives, reiterating that in its concern for program integrity, the new "relates" standard is intended to result in a more complete and accurate case record and thus result in decisions with improved integrity.

When must the related evidence be submitted?

The new rules require that all evidence must be submitted and received no later than 5 business days before the hearing date. 20C.F.R.404.949 Failure to submit in a timely manner may result in the ALJ's dismissal or disregard of the "untimely" medical evidence. As a practical matter, the onus is on the representative to make sure that requests for updated medical records are done at least 45-60 days in advance. The ODAR must provide the claimant 75 days notice before the scheduling of a hearing; as soon as that hearing is scheduled, the representative should meet or contact the claimant. This pre-hearing meeting or conference call is the opportune time to ask about any recent or prospective medical appointments or procedures. The request for updated records should be sent out promptly thereafter.

Tip: As soon as a hearing is scheduled, the representative should schedule a meeting or conference call with the claimant and send requests for updated records immediately.

Types of Evidence That Win Disability Claims

The key to a successful social security disability claim including SSDI or SSI is preparedness of the file, clients' compliance, advocates' knowledge of rules, regulations, and awareness of the judges' patterns and preferences. Anticipating potential pitfalls is crucial: careful reading of the file and a thorough interview with the claimant are essential elements of a case. There are three critical components to success: compliance, credibility, competence. Claimants bear the primary responsibility for compliance, credibility is shared between advocate and claimant, and competency is solely within the domain of the advocate.

At the onset, it is important for the claimant to understand that compliance is within their control; it means that they should follow medical providers' advice, suggestions or prescriptions as best as they can.2 Claimants need to know that they must attend scheduled appointments, call when they cannot make a medical appointment, and continue to be in treatment. Claimants must also be advised that certain suggestions made by a medical provider should be followed, especially if the suggestion is directly related to the medical condition that they are alleging is keeping them from work. Thus, the COPD sufferer or asthma patient should quit smoking or seriously attempt to stop smoking (enroll in a program, use patches, etc.) because failure to do so may result in a seriously weakened claim or no viable claim at all. The diabetes patient should be encouraged to talk to their provider and explain why they are unable to obtain their prescriptions. [If possible, the advocate may provide the client with a list of potential sources for reduced prescriptions.] The client who tells his doctor about his inability to pay for certain drugs or preference for one treatment over another and this conversation is noted in the medical record has ameliorated some of the damage of "noncompliance."

The mentally ill claimant may be viewed differently by a judge if you, the advocate, can provide the ALJ with literature or articles that explain why a claimant with diagnosed schizophrenia may not be able to comply with a medication regime or why a bipolar individual may periodically go "off" his or her medications asserting that this is part of their medical condition and should not be viewed as "noncompliance." The claimant who adamantly refuses to follow medical advice or take medication or attend therapy or stay in treatment with no reasonable explanation may have critically or fatally damaged their case. Depending on the circumstances surrounding the noncompliant behaviors or the nature of the refusal for treatment, a case may be so weakened as to result in a potential withdrawal of the claim. Can a weakened claim be revitalized? Perhaps. But, the burden will be on the claimant to remain in treatment and be as compliant as possible in future treatment recommendations. The advocate should monitor the record and discuss with the client any potential behavior(s) that would lead to a conclusion of noncompliance.

Tip: It is the advocate's duty to the claimant to fully explain what could happen when there is noncompliance with medical treatment; it is the responsibility of the client to be compliant.

The representative should ask for the medical records to be obtained from the SSA as quickly as possible once an appeal (especially if the claimant is at the hearing level) has been filed. This is the first step in gathering the necessary evidence in preparation for a hearing. For example, a client may have been diagnosed with Major Depressive Disorder, is treated by a psychiatrist, sees a therapist regularly, has a list of medication (and has been compliant), and has well-documented records of periods of therapy and office visits. This type of evidence would potentially support a claim based on Affective Disorders and that may meet the Listing 12.04 A & B criteria; obtaining this medical record may improve the likelihood of a favorable decision.

Review of the record is critical. A claimant may have filed an initial claim stating that his/her disability is based on chronic back pain. The claimant may insist that this is the reason why he or she is no longer able to work. However, a review of the record may reveal that the claimant has chronic obstructive pulmonary disease with significantly impaired pulmonary function tests that affect his or her breathing, climbing of stairs or other activity. As the representative who has reviewed the medical record, you may be in a position to advise the claimant that the COPD may be the most disabling condition and that this is the impairment that may be determinative in the disability hearing. The medical record is singularly important in your review of the impairments; the claimant's description of the symptoms he or she experiences must also be considered as well. It is the sum of the medical evidence and the claimant's symptoms that provides for a complete and well-reasoned determination of "disability."  The claimant's symptoms and the physician's signs as documented in the record must "dovetail"; your role as the representative is to make sure that there is sufficient evidence so support a listing impairment, if possible. Alternatively, if there is no "one" listing that can be identified, that there is medical evidence for the ALJ, for example, to consider the totality of the alleged medical impairments, including both the severe and non-severe medical conditions.

The paralegal may, at the initial meeting with the client or at a later stage in the process, request that the treating physician or specialist complete a questionnaire or residual functional capacity form (RFC) that specifically addresses functional limitations associated with the client's medical condition. These questionnaires are to be completed by a physician (or a Ph.D. therapist) and indicate physical or mental health limitations that are deemed by the physician or therapist to be present. There may or may not be a need to do additional testing or procedures in order to complete the questionnaire. Occasionally, a physician will refuse to complete the form or will ask to be compensated for his/her time in completing the form. The questionnaire may provide critical information about the client's functional limitations; decisions about including the information, obtaining further documentation or asking for additional testing or procedures are done on an ad hoc basis by the attorney reviewing the file.

The primary source of medical evidence is the medical notes; laboratory results or MRI or EMG findings are part of the medical record but these are usually uncontroverted. That is, these findings are not disputed by the providers or physicians who read and interpret the results. An MRI finding that the claimant has severe disc herniations that impinge a nerve root will be read in the same way by any radiologist even if they attribute the finding to different causes. However, the medical notes dictated by a provider can be a treasure trove to the advocate who is seeking to strengthen their client's case. Unfortunately, inconsistent provider notes can so damage a medical record so as to make it non-persuasive at best and useless as worst. It is the responsibility of the advocate to read and reread the medical record in its entirety and discover any inconsistencies before they become the focus of an ALJ's unfavorable decision.

The advocate has a duty to inform the claimant that assertions made by the client to the health providers (and to the SSA) must be truthful and that misrepresentation may weaken a case. The client may want to provide information about their symptoms and limitations and, thus, may exaggerate or inflate the symptoms. For example, the claimant with chronic intractable migraines may tell you that he or she has daily headaches measuring 9 on a 1 to 10 scale with no real relief despite medication. It may be true that the claimant has daily headaches but, are these so severe so as to necessitate emergency room treatment? Can the client function at home, prepare meals, take care of their children, etc., despite the headaches? The client is not lying, but he or she is simply trying to inform you of the seriousness of their condition. The client may have also relayed the same information to their medical provider about his/her symptoms and intensity. Unfortunately, the physician or health provider may have noted in the record a statement such as, "the patient exaggerates the symptoms" or worse yet, "there are no objective medical findings that support the patient's description of his/her condition."

Physicians and medical providers rely almost exclusively on electronic record keeping. The "cut and paste" approach for medical data entry may result in a medical note that appears contradictory to what the patient/client may be reporting. Consider the client who says to his physician, "Well not too bad. I guess okay-well, maybe better than before" in response to, "How are you doing today?" But later on in the course of the appointment, tells the physician that, in fact, his pain is worse, he is having dizzy spells, and is tired, "all the time" and this too may be entered into the record. The medical note may then appear to be inconsistent even though the client correctly, albeit imprecisely, relayed his symptoms and the physician entered the information he was told. Patients, our clients, often under report their symptoms: consider the scenario where a client may complain of knee pain (because that is the acute presenting symptom at the time of the office visit) but, the underlying condition, the basis for his disability claim, is a traumatic brain injury which affects his memory. Will this be an inconsistent medical note? Will it weaken the case or affect the claimant's credibility?

Some inconsistencies cannot be avoided, as noted above, but the advocate should be aware of these and either explain them in their pre-hearing brief or outline or ask the claimant at a hearing to clarify what he might have said at a particular office visit. Inconsistencies that include a misstatement of facts should be addressed and not be ignored. For example, the medical note that contains a statement such as, "Mr. Doe was helping his mother moved and injured his shoulder while lifting a refrigerator," cannot be ignored if Mr. Doe is alleging disability due to degenerative disc disease with radiating pain to his arms and shoulders. Similarly, statements that refer to the patient's activities of daily living (ADL's) should be carefully reviewed by the advocate/lawyer. Imagine that the patient is alleging disability due to an autoimmune disorder such as lupus with flare-ups that cause the patient to be extremely fatigued, make it difficult for the patient to concentrate, and result in joint pain.

Proving pain is especially difficult because it includes credibility as a significant factor. Credibility is a shared responsibility between the client/claimant and the advocate. If credibility is not present or has been so contaminated so as to lack any potential ability to repair, a claim may be weakened or impossible. The definition of credibility for purposes of social security is based on more than simple truth: credibility involves truth and evidence to support it.

Tip: If possible, read and reread the medical evidence and note potential problem areas such as lack of doctor visits, failure to show for appointment, breach of narcotic records, and incomplete medical notes or findings from lab or other objective tests. Keep the client informed and remedy these deficiencies in advance of the hearing. Make sure that the records are submitted 5 business days ahead of a hearing.