Tag Archives: duties

Proposed Regulations About Adverse Evidence

[Note: After this post was written, the regulation requiring notice of all evidence, in its entirety, related to whether or not the claimant is blind or disabled became reality. It officially went into effect on April 20, 2015.]


Recently, the National Organization of Social Security Claimants’ Representatives printed an article that detailed regulations being proposed by the Social Security Administration that would require a person applying for disability to disclose all evidence related to the determination of disability. Adverse evidence could not be screened out. While this has been discussed for years, such a regulation seems likely to be adopted in some form in the near future.

The idea behind this is that a person should not be able to pick and choose only the most favorable evidence to submit in a case. If you have applied for disability and provide evidence, you cannot edit what you have submitted under the current regulations. Pulling out only favorable information would not be permitted. If a document with helpful information also contains adverse evidence regarding your claimed disability, you would have to include everything in order to get the favorable facts into your disability file.

What is proposed is that, when you submit evidence from a source, you have to submit all of the evidence from that source. Instead of requiring that each report or medical test be entered into your file without anything edited from it, the new regulations would require that you must introduce everything from that source’s records about you whenever you add evidence from a new source. While the idea is to prevent the hiding of adverse evidence that will have a negative effect on your case, this also opens the possibility that a great deal of irrelevant information will have to be reviewed by the SSA. For example, even the most routine medical tests during a hospital stay would be in your file, which could lead to more important data virtually being buried.

In addition, the proposed regulations would require you, after applying for disability, to either inform the SSA about or actually submit all evidence that you know that exists and relates to whether or not you are disabled. The present regulations state that you have to bring to the attention of the Social Security Administration everything that shows that you are disabled.

The wording of both versions seems to suggest that the SSA will follow up on your information and get the records if you do not. However, nothing in either version states that it has to do this, even though the regulations have included the requirement that the Social Security Administration is to work to develop the record for your case. Will the SSA pursue this obligation more thoroughly when you disclose adverse evidence that may prove that you are not disabled? There is no way to know this at the moment. However, in what is supposed to be a non-adversarial process, the proposed changes would give you the obligation of providing evidence against yourself.

Also, there are changes in the role of an attorney or anyone who is representing you in your case. Your representative would have to help to obtain the information that you would be required to submit under the new regulations. The use of “help” seems to suggest that your representative would have an active role in the development of factors in your favor as well as those that are adverse to you. Potentially, this might lead some claimants to withhold information from representatives in an attempt to prevent adverse evidence winding up in the file. The regulations now state that the representative is to obtain and submit evidence that you want to have in your Social Security file – the proposals would introduce a definite change in the process, and these changes could have unwanted consequences regarding your disability claim.

None of this is to suggest that adverse evidence should be hidden so that individuals who actually do not qualify for disability end up being found disabled. On the other hand, the implications of major changes in any system should receive strong consideration before those changes are put into effect to determine if the “new” system presents an overall improvement upon what currently exists.