Adverse Evidence

As one legal scholar stated, “the rules [of conduct for representatives] are a model of ambiguity with regard to any duty to disclose adverse evidence.” [1] Last month, the Social Security Administration published a final rule effective April 20, 2015, which clarifies its regulations regarding the submission of evidence, to include all known evidence (favorable or unfavorable) that relates to a disability claim. The final rule intends for the word “relates” to have its ordinary meaning of “to show or establish a logical or causal connection between two things” (80 FR at 14829).

While Social Security Administration specifically excludes from the definition of “evidence” any oral and written communication between claimants and their representatives, at times a medical source may communicate an opinion about what an individual can still do despite their impairments. Such a medical source statement is medical opinion evidence that an adjudicator must consider together will all of the other relevant evidence (SSR 96-5p; See also 20 CFR §404.1512 (b)(2) and §404.1513(a)(6)). Under the final rule, evidence received from a medical source, whether favorable or unfavorable, must be submitted in its entirety subject to two exceptions: (1) when the same evidence (an exact duplicate) has already been submitted, or (2) when an adjudicator instructs you otherwise (80 FR at 14834). Nonetheless, the disability adjudicator is still required to consider all the evidence in its entirety, and a single source statement – adverse or otherwise — should be weighed with the record as a whole (20 CFR §416.920b).

[1] Rains, Robert, Professional Responsibility & Social Security Representation: The Myth of the State-Bar Bar to Compliance with Federal Rules on Production of Adverse Evidence, Cornell Law Review at p.373 (2007)