Does
a Social Security Disability claimants’ representative have a duty to submit
medical records pertaining to his or her client’s intra vitro fertilization
(IVF) treatment during the alleged period of disability? This question recently
came up in a listserv discussion involving Social Security Disability/SSI
attorneys who practice in Connecticut. Following a lengthy exchange it was
determined that under Social Security Ruling (SSR) 00-2p, which addresses fraud
and “similar fault,” submission is required.
If a Social Security
Disability claimant is denied benefits under Title II of the Act or eligibility for disability or blindness payments under Title XVI of
the Act, he or she can eventually request a hearing before an Administrative
Law Judge (ALJ). This is often considered the most important stage of the
adjudicatory process. At a formal hearing, the claimant is given the
opportunity to testify, present witnesses under oath, and cross-examine expert
witnesses.[1]
Prior
to hearing, it is imperative that a claimant’s representative submit any and
all evidence showing the claimant’s medical disability and resultant inability
to work on a regular and continued basis (i.e. eight hours a day, five days
weekly, in an “ordinary” work setting, without excessive absenteeism).[2] All evidence must be
submitted at least five days before hearing, although most ALJ’s are willing to
keep the record open for a reasonable period of time if, for example, an
unusual or exceptional circumstance kept counsel from knowing about or receiving
missing evidence.[3]
The
efficient and thorough collection of evidence by a claimant’s representative is
perhaps the most important part of the job, as the ALJ conducts hearings de
novo under a preponderance of the evidence standard.[4] If the claimant is denied at hearing, it is only
the administrative record presented at hearing that the Appeals Council will evaluate, with a limited
exception regarding new and material evidence that relates to the period on or
before the date of the ALJ decision.[5]
Social Security Disability hearings
are considered non-adversarial and “protective of the claimant.”[6]
Strict rules of evidence are not applied “so as to bar the admission of
evidence otherwise pertinent.”[7]
Obtaining all medical records, including those adverse to the claimant’s
case, during the relevant time period of disability is part of a representative’s
duty of full disclosure under 20 CFR 404.1740(a)(2); 416.1540(a)(2) (2006). Specifically,
a claimant’s representative must bring to the agency’s attention everything
that shows that the claimant is blind or disabled.
“This means that you must furnish medical and other evidence
that we can use to reach conclusions about your medical impairment(s) and, if
material to the determination of whether you are disabled, its effect on your
ability to work on a sustained basis.”[8]
What exactly is material to a finding
of disability? Social Security defines material as follows:
“… a statement of information or an omission from a statement
or information, that could influence SSA in determining entitlement to monthly
benefits under Title II or eligibility for monthly benefits under Title XVI of
the Act.”[9]
No doubt, the ambiguity of that definition
contributed to my colleague’s listserv inquiry about IVF records. In reference
to SSA’s definition of material, Attorney Charles Pirro wrote:
“I cannot conceive of a broader definition. The weather, for
example, ‘could’ influence SSA… The ruling is broad, so that ‘source’ could be
the individual health care provider, or ‘source’ could be the claimant’s
attorney.”[10]
Arguably, the medical procedure of artificial insemination,
in and of itself, has nothing to do with whether or not an individual can
maintain work activity on a regular and sustained basis. Moreover, a woman’s
decision to pursue IVF seems highly personal in nature. This stance is
buttressed by Connecticut’s version of ABA Model Rule 1.6, prohibiting a lawyer
from disclosing privileged or confidential client information without the
client’s consent.[11]
Nevertheless, for any version of MR 1.6 to apply in this situation, the
immateriality of medical records relating to IVF treatment must be a foregone
conclusion. After all, Federal law preempts state law under the Supremacy
Clause, and the rules of the federal tribunal preempt a state’s licensing
requirements.[12]
Conversely, MR 3.3(d) could be argued as
applying to counsel’s duty to submit IVF records (and that rule would also be
discredited under the Supremacy Clause.) MR 3.3 states:
“In an ex parte proceeding, a lawyer shall 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.”[13]
Regardless of the Supremacy obstacle, various state bar opinions have
concluded that Social Security proceedings, while non-adversarial in nature,
are not ex parte within the meaning of that rule.[14]
According to Attorney Pirro, SSR 00-2p could be interpreted
tightly, but it is more likely to be interpreted quite broadly given the
current climate of conservative decision-making at ODARs across the nation.[15]
He therefore advises claimants’
representatives to submit any and all records even remotely related to a
claimant’s healthcare during the period of alleged disability.[16]
This broad approach is consistent with a representative’s obligation to assist
the claimant in providing, upon SSA’s request, evidence about “any other
factors showing how the claimant’s impairment(s) affects his or her ability to
work” under CFR 404.1740(b)(2); 416.1540(b)(2).
It is not difficult to conceive of instances where IVF
records could be material to a case. If a claimant with lupus becomes pregnant
after IVF treatment, flare ups of that disease could occur with greater
frequency necessitating maternal immunosuppressive intervention.[17]
On the other hand, some medical conditions, including psoriasis, multiple
sclerosis and rheumatoid arthritis, can improve during pregnancy.[18]
In most cases, such issues cannot be discovered until after the evidence is
turned in to the tribunal.
Under SSR 00-2p, an attorney risks being involved in “fraud
or similar fault” if IVF records are not submitted. Fraud usually applies to
financial deceit.[19]
“Similar fault” is defined as follows:
(i)
an incorrect or incomplete statement that is
material to the determination is knowingly made; or
(ii)
information that is material to the determination
is knowingly concealed[20]
Social Security lawyers have a very low rate of disciplinary
action and I have personally never heard of an attorney facing civil monetary
penalty due to the omission of evidence.[21]
That said, when your license and your reputation with the tribunal are at
stake, it pays to err on the side of caution. Under SSR 00-2p, all health-related
evidence pertaining to the time period in question, however trivial, and even
if adverse to the claimant, should be obtained by counsel and turned over to
the court.
[1]
http://www.ssa.gov/appeals
[2]
Social Security Regulations (SSR) 96-8p (2006)
[3] 20
CFR 405.331(2006)
[4] 20
CFR 404.929
[5] 20
CFR 404.970; A Federal court can also subsequently review the administrative
record established at hearing under the “substantial evidence” standard. See Consolidated
Edison Co. of NY v. NLRB, 305 US 197 (1938)
[6] Heckler
v. Day, 467 US 104 (1984)
[7] Richardson
v. Perales, 402 US 389, at 400 (1971)
[8] 20
CFR 404.1512 (a)
[9]
HALLEX (Hearings, Appeals & Litigation Law Manual), I-1-3-15, last updated
May 13, 2014. Visit
http://www.ssa.gov/OP_Home/hallex/1-01/1-1-3-15.html
[10]
Charles Pirro, Attorney at Law (personal communication, May 23, 2014) Attorney Pirro
previously prepared a presentation on SSR 00-2p for a NOSSCR conference in DC.
[11]
Model Rules of Prof’L Conduct, R 1.6(a) (2006); for Connecticut’s version,
visit: http://www.jud.ct.gov/publications/PracticeBook/PB.pdf
(2014).
[12]
Rains, Robert E. “Professional Responsibility and Social Security
Representation: The Myth of the State-Bar Bar to Compliance with Federal Rules
on Production of Adverse Evidence.” Cornell Law Review, Vol. 92:363 at 394.
[13]
MR 3.3 (d)
[14]
See Rains, “Professional Responsibility” Vol. 92, 363(2006) at 383, citing Ala.
State Bar Ass’n Disciplinary Comm’n, Op. RO-93-06 (1993); and N.C. State Bar,
98 Formal Ethics Op. 1 (1999), reprinted in The North Carolina State Bar Lawyer’s
Handbook 229 (2000).
[15]
Pirro, May 23, 14; On the issue of ODARs nationwide becoming
increasingly “conservative” with respect to decision-making, see http://www.northjersey.com, “Four Social Security Judges Accused of Rubber Stamping
Claims for Disability Benefits”, AP (June 10, 2014) stating that, overall,
grant rates are the lowest in years. In 2013, 56% of cases at all levels of SSA
were granted, down from 72% in 2005.
[16]
Id.
[17] http://www.emedicine.medscape.com/
“Systemic Lupus Erythematosus and Pregnancy” Khurana, Ritu, MD (April 29,
2014).
[18] http://www.babycenter.com, “Strange but
True: Pregnancy Can Improve Chronic Health Conditions” Lack, Evonne, MD.
[19]
Rains, at 376, 377
[20]
42 USC section 1383 €(7)(B)(2000)
[21]
Swank, Drew A, “Non-Attorney SSD Representatives and the Unauthorized Practice
of Law” Southern Illinois Law Journal, Vol. 36, at 151 (2012), referencing
SSA’s list of sanctioned representatives (April 11, 2011) available at http://odar.ba.ssa.gov/odarweb/oac/scsrep.cfm.
According to Swank, since 1980, when records began, a total of 178
representatives have been suspended or disqualified from representing claimants
before SSA. Of the 178, 101 have been non-attorney representatives.
