Social Security Disability Insurance claims: the new all-evidence rule

Recently amended Social Security regulations raise new issues about what evidence of disability SSDI claimants are required to submit.

On April 20, 2015, revised federal regulations - known informally as the "all-evidence rule" - took effect. The rule expands the legal duties of Social Security Disability Insurance claimants and their advocates and attorneys to inform the Social Security Administration about evidence, or to submit evidence to it.

The agency says that requiring that claimants submit all evidence that "relates" to their SSDI claims, rather than that which is "material" to it, will make the claimants' files more complete and disability decisions more accurate.

Some advocates, however, are concerned that the expanded requirements may be overreaching, confusing and even potentially invasive of privacy.

As background, in February 2014, the SSA published a notice of proposed rulemaking describing the proposed changes and inviting public comment. The agency said that it was proposing the amendments because:

  • The public, Congress and the media had raised the issue.
  • Allegations were being made that representatives (attorneys and nonattorneys are allowed to advocate for SSDI claimants) were withholding "unfavorable evidence."
  • The SSA knew it was not always receiving "complete evidence."
  • Federal law allows the SSA to levy civil financial penalties against applicants who withhold material facts impacting eligibility.
  • More complete files would result in more accurate decisions.

In response, 85 public comments were submitted. In its explanation of the final rule, the SSA described its reactions to negative commentary, sometimes making corresponding changes and other times rejecting the criticism.

For example, some critics felt that requiring submission of all evidence "related" to the disability claim (rather than "material" to it) was vague and unclear, or could result in submission of sensitive private health care information (such as HIV status) unrelated to the disability claim.

The agency disagreed, stating that a claimant would be expected to use his or her "reasonable, good faith judgment" about what evidence relates to the disability claim. The ordinary meaning of "relates" ("to show or establish a logical or causal connection between two things") should be used and would not be difficult to apply to an analysis of potential evidence, according to the SSA.

In particular, the SSA made it clear that related, but unfavorable evidence must also be submitted. The agency emphatically rejected comments that an SSDI claimant should not have to submit unfavorable evidence that could be biased or inaccurate, noting that the applicant and his or her representative could still tell the agency why the evidence is unimportant or weak.

Concerns were expressed that the broad language of the proposed change would require a claimant to request and pay for voluminous medical records, when, for example, a medical summary would be sufficient. The agency modified the rule in response making it clear that a claimant would not necessarily have to request every medical record, but that everything "received" from a request has to be submitted to the SSA; the claimant cannot pick and choose what he or she will submit from what was received.

However, duplicate evidence does not have to be resubmitted.

The all-evidence rule raises complex legal and practical issues for SSDI claimants and their representatives, especially since it is new and courts and the agency have not had much opportunity to interpret it. Anyone applying for SSDI or appealing an SSDI denial should speak with an experienced SSDI attorney about how the rule impacts the evidence and for representation. A lawyer who regularly advocates for SSDI applicants will understand the new rule and how it is being construed.

From offices in Indianapolis and Lafayette, lawyer Annette Rutkowski of the Law Office of Annette Rutkowski represents SSDI claimants throughout central, western and southern Indiana.

Keywords: Social Security Administration, SSA, all-evidence rule, Social Security Disability Insurance, SSDI, claimant, evidence, disability, regulation, relate, material, comment