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Federal Register / Vol. 80, No. 54 / Friday, March 20, 2015 / Rules and Regulations
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City
Airport
FDC Date
Subject
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2-Apr-15 ............
WI
WI
Milwaukee ...................
Milwaukee ...................
General Mitchell Intl ....
General Mitchell Intl ....
5/9537
5/9538
02/11/15
02/11/15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
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WI
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WI
WI
WI
WI
WI
WI
WI
WI
WI
WI
WI
WI
Milwaukee ...................
Mineral Point ...............
Mineral Point ...............
Wausau .......................
Wausau .......................
Reedsburg ..................
Reedsburg ..................
Black River Falls .........
Sparta .........................
Mosinee ......................
Mosinee ......................
Mosinee ......................
Mosinee ......................
Mosinee ......................
Mosinee ......................
Baraboo ......................
5/9539
5/9540
5/9541
5/9550
5/9551
5/9552
5/9553
5/9554
5/9555
5/9556
5/9557
5/9558
5/9559
5/9560
5/9561
5/9562
02/11/15
02/11/15
02/11/15
02/12/15
02/12/15
02/12/15
02/12/15
02/11/15
02/12/15
02/11/15
02/11/15
02/11/15
02/11/15
02/11/15
02/11/15
02/11/15
2-Apr-15 ............
WI
Baraboo ......................
5/9563
02/11/15
LOC/DME RWY 1, Amdt 1A.
2-Apr-15 ............
WI
Baraboo ......................
5/9564
02/11/15
RNAV (GPS) RWY 1, Amdt 1.
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
2-Apr-15
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WI
WI
WI
WI
WI
WI
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NE
NE
NE
NE
NE
NE
NE
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Medford .......................
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Marshfield ...................
Marshfield ...................
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Baraboo Wisconsin
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LOC RWY 25L, Amdt 5.
RNAV (GPS) Z RWY 25L, Amdt
1B.
RNAV (RNP) Y RWY 25L, Orig.
RNAV (GPS) RWY 4, Amdt 1.
RNAV (GPS) RWY 11, Amdt 1.
RNAV (GPS) RWY 13, Amdt 1.
RNAV (GPS) RWY 31, Orig.
RNAV (GPS) RWY 36, Orig.
RNAV (GPS) RWY 18, Orig.
RNAV (GPS) RWY 8, Amdt 1.
RNAV (GPS) RWY 11, Amdt 1.
RNAV (GPS) RWY 26, Amdt 1.
RNAV (GPS) RWY 35, Amdt 1.
RNAV (GPS) RWY 8, Amdt 1.
ILS OR LOC RWY 8, Amdt 13.
ILS OR LOC RWY 35, Amdt 2.
VOR/DME RWY 35, Amdt 9.
RNAV (GPS) RWY 19, Amdt 1.
5/9567
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5/9777
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02/12/15
02/12/15
02/12/15
02/12/15
02/12/15
02/12/15
02/12/15
RNAV (GPS) RWY 9, Orig.
RNAV (GPS) RWY 34, Orig.
RNAV (GPS) RWY 23, Orig.
RNAV (GPS) RWY 5, Orig.
NDB RWY 5, Amdt 14.
RNAV (GPS) RWY 29, Orig.
RNAV (GPS) RWY 11, Orig.
VOR RWY 8, Amdt 6A.
RNAV (GPS) RWY 13, Orig-B.
RNAV (GPS) RWY 26, Amdt 2A.
VOR RWY 26, Amdt 6A.
VOR/DME RWY 26, Amdt 1A.
RNAV (GPS) RWY 31, Orig-A.
RNAV (GPS) RWY 8, Amdt 2A.
VOR/DME RWY 8, Amdt 1A
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[FR Doc. 2015–06251 Filed 3–19–15; 8:45 am]
BILLING CODE 4910–13–P
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404, 405, and 416
[Docket No. SSA–2012–0068]
RIN 0960–AH53
Submission of Evidence in Disability
Claims
ACTION:
We are clarifying our
regulations to require you to inform us
about or submit all evidence known to
you that relates to your disability claim,
subject to two exceptions for certain
privileged communications. This
requirement includes the duty to submit
all evidence that relates to your
disability claim received from any
source in its entirety, unless you
previously submitted the same evidence
to us or we instruct you otherwise. We
are also requiring your representative to
VerDate Sep<11>2014
18:21 Mar 19, 2015
Jkt 235001
This rule is effective April 20,
2015.
Social Security Administration.
Final rule.
SUMMARY:
help you obtain the information or
evidence that we require you to submit
under our regulations. These
modifications to our regulations will
better describe your duty to submit all
evidence that relates to your disability
claim and enable us to have more
complete case records on which to make
more accurate disability determinations
and decisions.
DATES:
AGENCY:
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FDC No.
FOR FURTHER INFORMATION CONTACT:
Janet Truhe, Office of Retirement and
Disability Policy, Social Security
Administration, 6401 Security
Boulevard, Baltimore, Maryland 21235–
6401, (410) 966–7203. For information
on eligibility or filing for benefits, call
our national toll-free number, 1–800–
772–1213, or TTY 1–800–325–0778, or
visit our Internet site, Social Security
Online, at http://
www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
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Background
We published a Notice of Proposed
Rulemaking (NPRM) in the Federal
Register on February 20, 2014 (79 FR
9663). The preamble to the NPRM
discussed the changes from our current
rules and our reasons for proposing
those changes.1 In the NPRM, we
proposed to clarify our regulations to
require you to inform us about or submit
all evidence known to you that relates
to your disability claim, subject to two
exceptions for certain privileged
communications. We explained that this
requirement would include the duty to
submit all evidence from any source in
its entirety, unless subject to one of
these exceptions. We also proposed to
require your representative to help you
obtain the information or evidence that
we would require you to submit under
our regulations.
Public Comments
We provided 60 days for the public to
comment on the NPRM. We received 85
1 The NPRM is available at http://www.gpo.gov/
fdsys/pkg/FR-2014-02-20/pdf/2014-03426.pdf.
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Federal Register / Vol. 80, No. 54 / Friday, March 20, 2015 / Rules and Regulations
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comments. The comments came from
members of the public, advocacy
groups, legal organizations, members of
the disability advocacy community, and
several national groups of Social
Security claimants’ representatives.
After carefully considering the
comments, we are adopting our
proposed rule revisions, with the
changes described below, in this final
rule.
We provide summaries of the
significant comments that were relevant
to this rulemaking and our responses to
those comments below. Some
commenters supported the proposed
changes. We appreciate those
comments, but we have not summarized
or responded to them because they do
not require a response.
The Submission of Evidence That
Relates to Disability Claims
Comment: Several commenters said
our proposal in 20 CFR 404.1512(a) and
416.912(a) for claimants to submit
evidence that ‘‘relates’’ to their
disability claims is less clear than our
current requirement to submit evidence
that is ‘‘material’’ to the disability
determination. Other commenters said
the word ‘‘relates’’ is too vague and
claimants will not know, for example, if
they must inform us about medical
treatment for a physical impairment
when they have alleged disability based
solely on a mental impairment. Several
of these commenters said requiring
claimants to submit information that
‘‘relates’’ to their disability claims
would be an invasion of privacy, as it
could include every matter about a
claimant’s health history (for example,
an abortion or HIV status). Other
commenters said it would be difficult
for claimants to know whether nonmedical information, such as from
social media or other types of
proceedings (for example, a worker’s
compensation claim), ‘‘relates’’ to their
disability claims.
Response: We disagree with the
commenters. Unless the context
indicates otherwise, we generally intend
for the words we use in our regulations
to be construed according to their
ordinary meaning. In final
§§ 404.1512(a) and 416.912(a), we
intend for the word ‘‘relates’’ to have its
ordinary meaning, which is to show or
establish a logical or causal connection
between two things. Our current rules
already incorporate this concept in the
definition of evidence. Under our
current rules, and under this final rule,
we define evidence as ‘‘anything you or
anyone else submits to us or that we
obtain that relates to your claim.’’ In our
experience, neither claimants nor their
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18:21 Mar 19, 2015
Jkt 235001
representatives have had any difficulty
determining whether something
qualified as ‘‘evidence’’ under this
definition.
Our current regulations, however,
describe a claimant’s duty to submit
evidence in several ways and suggest
that claimants must furnish medical and
non-medical evidence that is ‘‘material’’
to the disability determination. The
issue of what is ‘‘material’’ involves
legal judgment. As we explained in the
NPRM, by requiring claimants to submit
all evidence that ‘‘relates’’ to their
disability claims, we are removing the
need to make that type of judgment.2
In addition, we expect claimants to
exercise their reasonable, good faith
judgment about what evidence ‘‘relates’’
to their disability claims keeping in
mind, however, that the meaning of
‘‘relates’’ is broad and includes anything
that has a logical or causal connection
whether it is favorable or unfavorable to
the claim. It is also important to note
that we consider all of a claimant’s
impairments for which we have
evidence, not just the ones alleged,3 and
we consider the combined effect of all
impairments.4 We are also required,
subject to certain exceptions, to develop
a complete medical history for at least
the 12 months preceding the date of the
disability application.5 Therefore,
evidence of treatment for conditions
other than the one alleged by the
claimant could relate to the disability
claim. For example, if a claimant alleged
a back impairment, the treatment
records from health care providers other
than the treating orthopedic surgeon (for
example, from a family doctor who has
rendered treatment for a condition other
than the one alleged) may contain
related information. Therefore, we may
ask the claimant if he or she saw other
providers during the period at issue. In
addition, if the back impairment arose
out of an injury at work, we would
expect the claimant, upon our request,
to inform us whether he or she filed a
worker’s compensation claim. If so, we
may obtain the records from that claim,
because they may contain evidence that
‘‘relates’’ to the claim for disability.
However, we would expect our
adjudicators to exercise their
reasonable, good faith judgment when
requesting information or evidence from
claimants. For example, we would not
require a claimant to disclose treatment
for a health matter such as an abortion,
if the claimant alleged disability based
on a genetic disorder.
Comment: Several commenters
recommended that we not revise our
regulations regarding the submission of
evidence, because they believed our
current rules work well. Several of these
commenters said claimants already have
a duty to inform us about all medical
treatment received and submit evidence
that is ‘‘material’’ to the disability
determination. Some of these
commenters also said no change was
necessary regarding the submission of
evidence by representatives, because
attorneys have an ethical duty not to
withhold evidence. Some of these
commenters said our current ‘‘Rules of
conduct and standards of responsibility
for representatives,’’ which apply to
attorney and non-attorney
representatives,6 are sufficient to ensure
the submission of complete evidence on
behalf of claimants. One of these
commenters recommended that we
impose harsher penalties on
representatives who withhold evidence
that is unfavorable to the disability
claim.
Response: We did not adopt the
comments. As we explained in the
NPRM, our current regulations describe
a claimant’s duty to submit medical and
non-medical evidence in several ways,
and they could be clearer about the duty
to submit all evidence (both favorable
and unfavorable) that relates to the
disability claim.7 Similarly, our current
regulations governing the conduct of
representatives describe their related
duty to submit evidence in several
ways; those regulations could also be
clearer.8 We provide that greater clarity
in this final rule. The need for greater
clarification also implicates program
integrity because, as we explained in the
NPRM, we know that we do not always
receive complete evidence from
claimants or their representatives.9
Clarifying our rules regarding the duty
to submit all evidence that relates to the
disability claim will ‘‘enable us to
obtain more complete case records and
adjudicate claims more accurately.’’ 10
In addition, as we previously stated,
our current regulations suggest that
claimants and their representatives must
make legal judgments about what is
‘‘material’’ to the disability claim. Our
final rule removes the need to make that
type of legal judgment.
Comment: Several commenters
questioned how claimants would inform
2 79
6 See
3 See
7 79
FR at 9665.
20 CFR 404.1512(a) and 416.912(a); see also
42 U.S.C. 423(d)(2)(B) and 1382c(a)(3)(G).
4 See 20 CFR 404.1523 and 416.923.
5 See 20 CFR 404.1512(d) and 416.912(d).
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14829
20 CFR 404.1740 and 416.1540.
FR at 9664.
8 Id.
9 Id.
10 Id.
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at 9665.
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us about all evidence that ‘‘relates’’ to
their disability claims and asked
whether they will have to volunteer this
information or simply respond to our
specific requests. Some of these
commenters said it would be
burdensome and unrealistic to require
claimants, particularly those who are
unrepresented, homeless, or who have
mental impairments, to disclose on a
voluntary basis every disability-related
statement or activity. Other commenters
asked whether claimants should
memorialize, and then submit to us, all
of the disability-related statements they
made to others (for example, to doctors,
friends, or family members). One of the
commenters asked whether the duty to
submit all evidence would require
claimants to disclose the names of all
people with personal knowledge of the
claim. Another commenter asked
whether claimants would have a duty to
supplement information they previously
submitted, if they later become aware of
additional responsive information.
Another commenter asked if claimants
would have to disclose the existence of
evidence, which they were unaware of
at the time of our initial request, but that
they became aware of later. One
commenter asked whether the duty to
submit all evidence would apply at the
Appeals Council level.
Response: We use a standardized
process for obtaining information and
evidence from claimants about their
disability claims. For example, in the
adult disability application process, we
ask a variety of questions about the
claimant’s medical condition, work
activity, job history, and medical
treatment.11 Under final §§ 404.1512(a)
and 416.912(a), we expect claimants to
comply with their duty to submit
evidence by providing all information
known to them that relates to these
requests. We may also make other types
of requests for information and evidence
that we would expect claimants to
provide.12
Aside from responding fully to our
specific requests, claimants also submit
other evidence to us. Claimants do not
have to memorialize statements made to
others or disclose the names of all
people with personal knowledge of their
claims, unless they would like us to
consider that information. Final
11 See Form SSA–3368–BK, Disability Report—
Adult (available at http://www.socialsecurity.gov/
forms/ssa-3368.pdf).
12 For example, in some cases, we may want to
obtain evidence about a claimant’s ability to
function and perform activities of daily living, and
we will ask him or her to complete Form SSA–
3373–BK, Function Report—Adult. We would
expect the claimant to provide all information
known to him or her that relates to the requests on
this form.
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§§ 404.1512(c) and 416.912(c) require
only that claimants submit all evidence
‘‘received’’ from another source in its
entirety.
For claimants who need assistance in
responding to our requests for
information and evidence, we currently
provide that assistance. For example,
when a claimant submits a disability
application, we ask the claimant to
provide the name of someone we can
contact who knows about the claimant’s
medical condition and can help the
claimant with his or her disability
claim. We also provide special
procedures for obtaining evidence from
homeless claimants 13 and instruct our
adjudicators on how to assist claimants
with mental impairments when
requesting information or evidence from
them.14
The duty to inform us about or submit
all evidence that relates to the disability
claim is ongoing, and we have modified
proposed (now final) §§ 404.1512(a) and
416.912(a) to clarify that claimants must
disclose any additional evidence related
to their disability claims about which
they become aware. Therefore, after we
have made a request for a particular
type of information or evidence,
claimants must supplement their
previous response, if they become aware
of additional related evidence.
Claimants must also disclose the
existence of evidence that they were
unaware of at the time of our initial
request, but become aware of later on.
This ongoing duty applies at each level
of the administrative review process,
including the Appeals Council level if
relates to the period which is the subject
of the most recent hearing decision.
Comment: Several commenters
recommended that we only require
claimants to submit evidence in specific
categories (for example, medical
records), which was one of several
options suggested by the Administrative
Conference of the United States (ACUS)
in its Final Report.15 These commenters
said this requirement would be
preferable to the more general
requirement we proposed in
§§ 404.1512(a) and 416.912(a) (for the
13 See Program Operations Manual System
(POMS) DI 11005.004 (available at: https://
secure.ssa.gov/apps10/poms.nsf/lnx/0411005004).
14 For example, when obtaining evidence from a
claimant with a mental impairment, our
adjudicators should consider any request for
accommodation, such as giving additional time to
comply. See POMS DI 23007.005 (available at:
https://secure.ssa.gov/apps10/poms.nsf/lnx/
0423007005).
15 Administrative Conference of the United
States, SSA Disability Benefits Programs: The Duty
of Candor and Submission of All Evidence, at 40
(Oct. 15, 2012) (‘‘ACUS Final Report’’), available at
http://www.acus.gov/sites/default/files/documents/
ACUS_Final_Report_SSA_Duty_of_Candor.pdf.
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submission of all evidence that ‘‘relates’’
to the disability claim), because it
would minimize the need for claimants
or their representatives to make legal
judgments about whether evidence is
‘‘material’’ or ‘‘relevant.’’ One of these
commenters also said it would be
difficult for claimants to know what
constitutes related unfavorable
evidence.
Response: We did not adopt these
comments. We considered ACUS’s
suggestion that we identify a particular
category of documents that a claimant
must identify or produce with some
reasonable degree of certainty, but we
decided that it was not practical for
several reasons. First, there is a wide
variety of evidence that could relate to
a disability claim, and it is difficult to
specify all of the potential categories in
a regulation (aside from medical
records, which we need to determine
disability in all cases). Second, as we
previously stated, we removed the need
for claimants to make any legal
judgments about what evidence they
should submit. By requiring the
submission of all evidence that ‘‘relates’’
to the disability claim in final
§§ 404.1512(a) and 416.912(a), claimants
will only have to inform us about or
submit evidence that has a logical or
causal connection with their disability
claims; such evidence will necessarily
include both favorable and potentially
unfavorable evidence. Thus, there will
be no need for claimants to determine
what constitutes ‘‘unfavorable’’
evidence.
Comment: Several commenters said
we should not require claimants to
submit evidence that relates to their
disability claims if it is unfavorable. For
example, some of these commenters
said unfavorable evidence could be
inaccurate or unreliable, or it could
come from doctors who are biased
against claimants or are not
knowledgeable about certain
impairments. Another commenter said
the requirement to submit all evidence
that relates to the disability claim would
preclude representatives from exercising
their professional judgment about what
evidence they should submit in support
of their clients’ disability claims. One
commenter expressed concern that the
requirement could mean claimants
would have to submit statements by
those who have a personal grudge (for
example, a former spouse). Another
commenter believed the requirement to
submit unfavorable evidence might
deter claimants from seeking medical
evaluations that could lead to helpful
treatment out of fear they might have to
disclose this information later in a
disability claim.
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Response: We disagree with the
commenters. We proposed to require
claimants to submit all evidence
(favorable or unfavorable) that relates to
their disability claims because we
believe a more complete record will give
us a fuller picture of the extent of a
claimant’s impairments and the
limitations they impose. As a result, we
expect that the changes we are making
in this final rule will enable us to make
more accurate disability determinations
and decisions, consistent with
Congress’s intent and our responsibility
to ensure the proper stewardship of the
disability program. Allowing claimants
(or their representatives) to inform us
about or submit only the evidence that
they would like us to consider would
undermine that goal. It would also be
inconsistent with Congress’s intent in
enacting section 201 of the Social
Security Protection Act of 2004
(SSPA),16 which authorizes us to
impose a civil monetary penalty on a
claimant who should have come
forward to notify us of changed
circumstances that affect eligibility, but
failed to do so. As we previously stated,
we expect our adjudicators to exercise
their reasonable, good faith judgment
when requesting evidence from
claimants that relates to the disability
claim. Therefore, we do not believe
claimants or their representatives will
have to respond to requests for
information or evidence that are
burdensome or pertain to unrelated
matters.
In addition, it is fair to require the
disclosure of related but potentially
unfavorable evidence, because
claimants (or their representatives) can
explain to us why they believe we
should give such evidence little or no
weight. Claimants and their
representatives routinely make
arguments for and against certain
evidence in other types of cases, and
they can also make these arguments in
disability cases. Moreover, we do not
base our determinations or decisions on
only one piece of evidence when we
adjudicate a claim. Rather, our
adjudicators must base their
determinations and decisions on the
preponderance of the evidence.17
Because we base our determinations or
decisions on a preponderance of the
evidence, we do not believe the
commenter’s concern that unfavorable
evidence could be inaccurate or
unreliable, or could come from a
medical source who is biased or not
knowledgeable about certain
impairments, requires us to make any
16 42
U.S.C. 1320a-8.
20 CFR 404.902 and 416.1402.
17 See
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revisions to the final rule. In addition,
we disagree with one commenter’s
suggestion that the duty to submit
potentially unfavorable evidence might
deter people from seeking medical
evaluations and treatment out of fear
they might have to disclose this
evidence in a future disability claim. We
believe that view is speculative and
contrary to how people behave, which
is to act in their best interests by seeking
medical treatment when needed.
Comment: Several commenters said
our proposal to require the submission
of all evidence that relates to the
disability claim makes the
determination process more formal and
adversarial. Some of these commenters
believed this requirement would be
inconsistent with our duty to gather
evidence regarding the claim. One of
these commenters said that providing
claimants with the protections of
attorney-client privilege and the
attorney work product doctrine was
inconsistent with the informal and nonadversarial nature of our current
disability determination process.
Response: We disagree with the
commenters. In fact, the non-adversarial
nature of our disability determination
process is what requires us to ensure a
high level of cooperation from
claimants. Moreover, we did not
propose any change to how we
determine disability at any level of the
administrative review process. In the
NPRM, we stated that our disability
system is ‘‘non-adversarial,’’ and we
reaffirmed our duty to ‘‘assist claimants
in developing the medical and nonmedical evidence we need to determine
whether or not they are disabled.’’ 18
The requirement for claimants to inform
us about or submit all evidence that
relates to the disability claim does not
change the process for how we
determine disability. Rather, as we have
stated repeatedly, this requirement will
simply enable us to make more accurate
disability determinations, because we
will have more complete case records
on which to make those determinations.
Comment: Several commenters
expressed concern about claimants who
conceal evidence from their
representatives, either intentionally or
by mistake, and asked whether we
would penalize the representative in
these situations. Some of the
commenters also expressed concern
about unrepresented claimants who
mistakenly withhold evidence from us
that we believe relates to the disability
claim. These commenters believed it
would be unfair for us to penalize these
18 79
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14831
claimants, especially if their mistakes
were due to a cognitive difficulty.
Response: As we previously stated,
under our final rule, we expect
claimants to exercise their reasonable,
good faith judgment about what
evidence ‘‘relates’’ to their disability
claims consistent, of course, with the
meaning of the term ‘‘relates,’’ which
could include unfavorable evidence.
Our final rule does not broaden or
otherwise alter the Commissioner’s
statutory authority to impose a civil
monetary penalty under the SSPA.19
The standard for imposing a civil
monetary penalty under the SSPA
requires the Commissioner to find that
a person withheld ‘‘disclosure of, a fact
which the person knows or should
know is material to the determination of
any initial or continuing right to . . .
[benefits or payments].’’ 20 The
Commissioner must also find that the
person ‘‘knows, or should know, that
the statement or representation with
such omission is false or misleading or
that the withholding of such disclosure
is misleading.’’ 21 Given the standard set
forth in the SSPA, we do not expect that
a claimant who mistakenly withholds
evidence due to a cognitive deficit
would be subject to a civil monetary
penalty. We also do not expect that a
representative would be subject to a
civil monetary penalty under the SSPA
if the representative’s client concealed
evidence from him or her. It is also
important to note, as we previously
stated, that we assist any claimant who
requests help in responding to our
requests for information or evidence,
and we have special procedures when
requesting information or evidence from
homeless claimants and those with
mental impairments.
Comment: Several commenters
suggested that rather than revise our
regulations regarding the submission of
evidence by claimants and their
representatives, we should instead do
more to obtain the evidence we need to
decide disability claims. For example,
one of these commenters recommended
that we assign a government
representative to work with claimants
(or their representatives) to ensure the
development of needed evidence.
Another commenter suggested that we
consider expanding our own obligation
to assist claimants in obtaining medical
records.
Response: We did not adopt the
comments, some of which are outside
the scope of this rulemaking proceeding.
19 Social Security Protection Act of 2004, section
201, 42 U.S.C. 1320a-8.
20 Id. section 201, 42 U.S.C. 1320a-8(a)(1).
21 Id.
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As we explained in the NPRM, under
our current regulations, we assist
claimants in developing the medical
and non-medical evidence we need to
determine disability throughout the
administrative review process.22
Representatives (attorney and nonattorney) also assist claimants in
submitting evidence and in complying
with our requests for evidence.23
Therefore, we do not believe it is
necessary to assign an additional
government representative to assist
claimants or their representatives in the
evidence collection process. In any
event, such a suggestion is outside the
scope of this rulemaking proceeding.
In addition, we are always striving to
find better methods of obtaining
medical and other evidence we need to
decide disability claims. For example,
use of health information technology
(HIT) enables us to access and organize
a person’s complete medical records
upon receipt of a claim. We continue to
expand our use of HIT and explore ways
of improving the medical and nonmedical evidence collection process.
Comment: Several commenters
expressed concern about our removal of
the term ‘‘relevant’’ in proposed
§§ 404.1512(b)(1)(iii) and
416.912(b)(1)(iii). Sections
404.1512(b)(3) and 416.912(b)(3)
currently refer to evidence of disabilityrelated statements made by the claimant
or others ‘‘or any other relevant
statements’’ made by the claimant ‘‘to
medical sources during the course of
examination or treatment, or to us
during interviews, on applications, in
letters, and in testimony in our
administrative proceedings.’’ Without
the term ‘‘relevant,’’ the commenters
asked whether there would be any limit
on the scope of these ‘‘other
statements,’’ which we require
claimants to disclose under this final
rule.
Response: We removed the term
‘‘relevant’’ in proposed (now final)
§§ 404.1512(b)(1)(iii) and
416.912(b)(1)(iii) to avoid confusion
with the standard for submission of
evidence in this final rule, which is the
submission of all evidence that ‘‘relates’’
to the disability claim. These sections
must still be read, however, in
conjunction with final §§ 404.1512(b)
and 416.912(b), where we define the
term ‘‘evidence’’ as ‘‘anything you or
anyone else submits to us or that we
obtain that relates to your claim.’’
(Emphasis added). All of the categories
22 79 FR at 9665. See 20 CFR 404.1512(d) and (e),
416.912(d) and (e).
23 See 20 CFR 404.1740(b)(1) and (2) and
416.1540(b)(1) and (2).
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of ‘‘evidence’’ that we go on to define
in these sections, such as the ‘‘other
statements’’ referred to in final
§§ 404.1512(b)(1)(iii) and
416.912(b)(1)(iii), are, therefore, limited
in scope to those that relate to the
disability claim.
The Privilege and Work Product
Exceptions
Comment: Two commenters
expressed concern about our extension
of the protections afforded by attorneyclient privilege and the attorney work
product doctrine in proposed
§§ 404.1512(b)(2)(iii) and
416.912(b)(2)(iii) to non-attorney
representatives. One of these
commenters said non-attorney
representatives have no experience or
knowledge of what these privileges
protect; therefore, the claimants they
represent may not have the same
protections as claimants who are
represented by attorneys. The other
commenter said it was not practical or
reasonable to require non-attorneys to
make legal judgments about what
communications would be subject to
these privileges. This commenter also
said that extension of these privileges to
non-attorney representatives would
cause confusion and uncertainty,
resulting in detriment to claimants.
Response: We disagree with the
commenters for several reasons. First,
we defined both types of privileges in
plain language and gave examples of
what would and would not be covered
by each privilege in the NPRM and in
this final rule.24 Second, our current
‘‘Rules of conduct and standards of
responsibility’’ apply to all
representatives,25 and we do not believe
there is any basis to distinguish between
attorney and non-attorney
representatives regarding their duty to
help obtain the evidence that claimants
must submit. We would disadvantage
certain claimants if we did not apply the
protections afforded by these privileges
to non-attorney representatives. For
example, claimants who are represented
by non-attorney representatives would
have to disclose information that a
claimant represented by an attorney
representative would not be required to
disclose. Finally, as recommended by
ACUS, we believe that any changes to
our evidence regulations should apply
to both attorney and non-attorney
representatives because, under the
Social Security Act and our rules, a
claimant has the right to be represented
24 79
FR at 9665–66.
20 CFR 404.1740 and 416.1540.
25 See
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by either an attorney or a qualified nonattorney representative.26
Comment: Several commenters said
the requirement for attorney
representatives to assist claimants in
submitting related but unfavorable
evidence would violate their state bar
ethics rules requiring the preservation of
client confidentiality and zealous
representation. One of these
commenters said this requirement
would also violate state bar rules
because it would require the submission
of attorney work product. Some of the
commenters expressed concern about
situations where claimants direct their
attorneys to withhold unfavorable
evidence, which may leave the attorneys
with having to choose between
following their clients’ instructions and
complying with a representative’s duty
to help the claimant obtain the
information or evidence that he or she
must submit under the final rule.
Response: We disagree with the
commenters. In proposed (now final)
§§ 404.1512(b)(2)(i) and 416.912(b)(2)(i),
we exclude from the definition of
evidence oral and written
communications between claimants and
their representatives (attorney or nonattorney) that are, or would be, subject
to the attorney-client privilege, unless
the claimant voluntarily discloses them
to us. In proposed (now final)
§§ 404.1512(b)(2)(ii) and
416.912(b)(2)(ii), we also exclude from
the definition of evidence the
information that is generally subject to
the attorney work product doctrine.27
We drafted the requirement for
claimants to inform us about or submit
all evidence that relates to the disability
claim with the attorney client and
attorney work product privileges in
mind, and believe that the final rule
does not require an attorney to violate
his or her ethical duty to keep client
communications confidential 28 or
require the submission of attorney work
product.
In addition, while we acknowledge
that state bar rules generally require
client confidentiality and zealous
representation, we do not believe state
bar rules prevent an attorney from
complying with our Federal rule, which
requires a representative to help a
claimant satisfy his or her disclosure
26 ACUS
Final Report at 38.
we explained in the NPRM, this doctrine
protects an attorney’s analysis, theories, mental
impressions, and notes from disclosure. 79 FR at
9666 (footnote omitted).
28 As we noted in the NPRM, however, the
attorney-client privilege does not protect the
disclosure of underlying facts that the claimant
communicates to the attorney; it protects only the
disclosure of the communication, itself. Id. at 9665.
27 As
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obligation. As ACUS noted, the
American Bar Association’s (ABA)
Model Rules of Professional Conduct
permit attorneys to disclose otherwise
confidential information if ‘‘other law’’
or a ‘‘court order’’ requires the
disclosure.29 These rules would
constitute such ‘‘other law.’’ In addition,
as one leading legal scholar in this area
has noted, ‘‘none of the opinions’’ that
various State bars have issued on a
representative’s duty to submit adverse
evidence in connection with a disability
claim ‘‘suggests that an attorney may
violate federal law because of a state bar
ethics rule.’’ 30 Moreover, ‘‘Even if a
state’s bar rules did not contain
provisions similar to Model Rules
1.6(b)(6) or 8.5(b), the notion that an
attorney could be punished by his or her
state bar for complying with federal law
in a federal forum is antithetical to the
Supremacy Clause’’ of the Constitution
and the Supreme Court’s decision in
Sperry v. Florida ex rel. Florida Bar, 373
U.S. 379 (1963).31 In short, ‘‘there is no
merit to the argument that an SSA rule
mandating that an attorney disclose
adverse evidence would subject an
attorney to sanctions by his or her state
bar.’’ 32
Furthermore, we are unaware of any
other forum that permits attorneys to
withhold unfavorable evidence, if it
relates to an issue in the case. Under
this final rule, we expect all
representatives (attorney or nonattorney) to inform the claimants they
represent that we do not permit the
withholding of any evidence related to
the disability claim, even if it is
unfavorable. Accordingly, in the
situation described by several
commenters where the claimant directs
the representative to withhold
unfavorable evidence, that
communication is privileged, but the
evidence would still have to be
produced.
Comment: One commenter
recommended that we extend the
protections afforded by attorney-client
privilege to non-authorized
representatives, such as physicians,
licensed clinical social workers, and
other licensed health care providers.
The commenter noted that many of
these professionals engage in privileged
communications with their patients,
29 ACUS Final Report at 33–34 (citing the ABA’s
Model Rules of Professional Conduct section
1.6(b)(6) (2012).
30 See Robert Rains, Professional Responsibility
and Social Security Representation: The Myth of the
State-Bar Bar to Compliance with Federal Rules on
Production of Adverse Evidence, 92 Cornell L. Rev.
363, 390 (2007).
31 Id. at 392.
32 Id.
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and they sometimes assist patients with
their disability claims. Therefore, the
commenter said we should also regard
these communications as privileged.
Response: We did not adopt the
comment. When claimants apply for
disability benefits, they sign an
authorization form that permits all
medical and certain other sources to
disclose all medical records and other
information related to the claimant’s
ability to perform tasks.33 Therefore,
claimants cannot keep these otherwise
privileged communications about their
physical or mental condition(s) private.
Comment: One commenter believed
that our exception for privileged
communications between claimants and
their representatives, unless voluntarily
disclosed by the claimant, would permit
us to communicate directly and
impermissibly with claimants instead of
their representatives.
Response: We disagree with the
commenter. In final §§ 404.1512(b)(2)(i)
and 416.912(b)(2)(i), we exclude from
the definition of ‘‘evidence,’’ 34 oral and
written communications between
claimants and their representatives,
unless the claimant voluntarily
discloses them to us. The attorney-client
privilege belongs to the client, and only
the client can waive this privilege. The
exception for voluntary disclosure of
otherwise privileged communications in
final §§ 404.1512(b)(2)(i) and
416.912(b)(2)(i) is in recognition of this
legal principle; it does not mean we
intend to communicate directly with
claimants who have representatives
assisting them with their disability
claims.35
Comment: Several commenters asked
why we proposed a more limited
version of the work product doctrine in
§§ 404.1512(b)(2)(ii) and
416.912(b)(2)(ii) than is recognized
under Rule 26(b) of the Federal Rules of
Civil Procedure. Several of these
commenters said a more limited version
of the work product doctrine would
deter representatives from having
33 See Form SSA–827, Authorization to Disclose
Information to the Social Security Administration.
34 We describe what we mean by ‘‘evidence’’ in
final 20 CFR 404.1512(b)(1) and 416.912(b)(1).
35 Under our policy, if a claimant appoints a
representative, we make all contacts in connection
with that claim or a post-entitlement issue through,
or with the permission of, the appointed
representative. This policy is subject to exceptions
when the representative asks us to deal directly
with the claimant, the claimant alleges blindness or
a visual impairment and elects to receive notices by
first class mail with a follow-up telephone call from
us to read the notices, there is an indication that
a representative’s appointment may have expired,
or the contact involves a possible violation by the
representative. See POMS GN 03910.050A
(available at: https://secure.ssa.gov/apps10/
poms.nsf/lnx/0203910050).
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14833
candid discussions with a claimant’s
medical sources, due to the potential of
having to disclose an unfavorable or
inaccurate written report. Some
commenters said that representatives
would have to disclose written opinions
received from medical experts, even if
the expert was not going to testify. The
commenters recommended we adopt the
full scope of the work product doctrine,
so representatives could withhold this
type of evidence.
Response: We did not adopt the
comments. We proposed a more limited
version of the work product doctrine
because we believe program integrity
requires us to obtain complete medical
evidence (favorable or unfavorable) in
disability claims. Therefore, we
expressly stated in proposed (now final)
§§ 404.1512(b)(2)(ii) and
416.912(b)(2)(ii) that representatives
could not withhold any medical
evidence or medical source opinions
based on the attorney work product
doctrine. As we explained in the NPRM,
if a claimant’s medical source sends his
or her representative medical records or
a written opinion about the claimant’s
medical condition, the representative
cannot withhold those records or that
opinion based on the work product
doctrine adopted under these rules.36 If
those records or that opinion contains
an inaccuracy or unfavorable
information, then claimants or their
representatives can explain this to us.
In addition, representatives may still
protect from disclosure their
consultation with any medical source
about the claimant’s medical condition.
As we stated previously, if a
representative takes notes during a
discussion with a claimant’s medical
source, those notes are protected from
disclosure as work product. Moreover,
under the final rule, the representative
does not have to request a written
opinion from any medical source.
Therefore, representatives can fully
investigate the merits of any disability
claim, and they do not have to disclose
the results of their investigation, unless
they obtain a medical record or a
written opinion from a medical source.
The Submission of Evidence In Its
Entirety
Comment: Many commenters asked
whether our proposal in §§ 404.1512(c)
and 416.912(c) to require the
submission of evidence from a source in
its entirety would create a duty on the
part of claimants (or their
representatives) to request and submit
all medical records from all treating
sources. Several commenters asked
36 79
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whether claimants (or their
representatives) should request all
records from a treating source or only
those dated after the onset of disability.
Some of the commenters noted that
medical records could be costly and
difficult for some claimants to obtain.
One of these commenters said treating
sources do not always send all the
records requested, and another
commenter noted that sometimes a
doctor sends records for someone other
than the claimant by mistake. Another
commenter described the example of a
hospital file numbering 1000 pages or
more and asked whether a
representative could simply request and
submit the discharge summary. Other
commenters asked whether we would
still be requesting and paying for
medical records from sources identified
by claimants. One commenter asked
whether claimants would now have to
obtain and submit not only all medical
evidence, but also all non-medical
evidence that relates to the disability
claim. Another commenter
recommended that we lower the burden
on claimants to submit all related nonmedical evidence, because its
evidentiary value is less than that of
medical evidence. Another commenter
suggested we require claimants to
submit only medical evidence in its
entirety.
Response: We are modifying proposed
(now final) §§ 404.1512(c) and
416.912(c) to clarify that claimants must
submit evidence ‘‘received’’ from
another source in its entirety. We did
not intend in these sections to impose
a duty on claimants or their
representatives to request and submit all
evidence (medical and non-medical)
from all sources, and we believe this
clarification makes that intent more
clear. For example, if claimants or their
representatives request only the
discharge summary from a hospital
chart, we require them to submit only
what they receive in response to that
request in its entirety. We would not
require them to request and pay for all
of the other records from that
hospitalization. We would also not
require them to submit any record for a
person other than the claimant, sent by
mistake, because it clearly would not
relate to the disability claim.
Moreover, as we proposed in
§§ 404.1512(a) and 416.912(a) and
explained in the NPRM, by requiring
claimants ‘‘to inform us about or
submit’’ all evidence that relates to the
disability claim, we are not shifting our
responsibility for developing the record
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to claimants 37 or their representatives.38
For example, we currently request the
names and addresses of medical sources
in our disability application process.39
Under the final rule, we expect
claimants to respond fully by providing
that information; we will then obtain
the records from those sources. As we
previously stated, we also expect
claimants to respond fully to any other
requests we make for information or
evidence related to their disability
claims.
Comment: Many commenters
expressed concern about our
requirement for claimants to submit
evidence from another source in its
entirety, because it would require the
submission of potentially duplicative
evidence. One of these commenters
described the example of when a
representative submits medical records
from a treating source and then requests
updated records; the source sends
everything he or she has already
provided, plus the updated records.
Another commenter noted that our
adjudicators sometimes instruct
claimants (or their representatives) not
to submit duplicative records. The
commenters recommended we not
require the submission of evidence that
is already in the claim file, because that
evidence can be costly for claimants to
resubmit and time-consuming for our
adjudicators to review. To avoid
duplicative evidence, one commenter
recommended that we not require
claimants to submit any evidence
previously submitted by them. Other
commenters recommended that we
simply not require the submission of
any duplicative evidence.
Response: We partially adopted the
comments by clarifying in final
§§ 404.1512(c) and 416.912(c) that
evidence from another source must be
submitted in its entirety ‘‘unless you
previously submitted the same evidence
to us or we instruct you otherwise.’’
For example, in the scenario
described above about the receipt of
duplicative medical records from a
treating source, the representative is
only required to submit the updated
records; he or she would not have to
submit any record duplicative of the one
previously submitted. In addition, by
‘‘duplicative,’’ we mean an exact
duplicate of a document in the record,
37 Id.
at 9665 (emphasis added).
at 9666.
39 These are the Form SSA–3368–BK, Disability
Report—Adult (available at: http://
www.socialsecurity.gov/forms/ssa-3368.pdf), and
the Form SSA–3820–BK, Disability Report—Child
(available at: http://www.socialsecurity.gov/forms/
ssa-3820.pdf).
38 Id.
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and not simply the substance of what is
in the record.
The other exception we provide in
final §§ 404.1512(c) and 416.912(c) is for
when one of our adjudicators directs
claimants or their representatives not to
submit duplicative evidence; in that
case, they would not have to submit that
evidence under the final rule. We do not
believe it is advisable to preclude the
submission of all duplicative evidence,
however, because this would impose a
duty on claimants to review their files
before submitting new evidence. For
claimants who do not have
representatives, this could be a
significant burden in some cases. Not
requiring claimants (or their
representatives) to resubmit the same
evidence they previously submitted is,
however, reasonable. We believe the
two limited exceptions for duplicative
evidence specified in final
§§ 404.1512(c) and 416.912(c) will
underscore the importance of
submitting evidence received from
another source in its entirety and better
ensure our goal of having more
complete case records on which to make
more accurate disability determinations
and decisions.
Comment: One commenter believed
the proposed revisions to our
regulations governing the submission of
evidence would require claimants to get
representatives.
Response: We disagree with the
commenter. We did not propose any
change to our regulations that would
require claimants to get representatives.
In addition, by stating that the
claimant’s duty to submit evidence now
includes the option to simply ‘‘inform
us about’’ evidence that relates to the
disability claim,40 we believe it will be
easier for claimants to comply with their
duty to submit evidence. Our
responsibility to assist claimants in
developing the record also remains
unchanged.
Comment: Many commenters said our
requirement in proposed §§ 404.1512(c)
and 416.912(c) for claimants to submit
evidence from another source in its
entirety would burden our adjudicators
with an excessive amount of potentially
irrelevant evidence. Several of these
commenters noted, for example, that
medical records from some sources
(such as the Department of Veterans
Affairs) can be voluminous, and the
time spent reviewing those records
would cause delays in the adjudication
of disability claims. Several of these
commenters said a provider’s medical
records could include evidence that is
unrelated to the disability claim. Other
40 See
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commenters expressed concern about
whether our adjudicators would
carefully review voluminous records
submitted by claimants (or their
representatives). Several commenters
said it would be preferable for claimants
or their representatives to exercise their
own judgment and submit only those
records or other evidence that they
think is relevant.
Response: We disagree with the
commenters. We do not believe the
requirement to submit all evidence
received from another source in its
entirety will burden our adjudicators
with having to review unnecessary
evidence in most cases. First, as we
previously stated, we did not intend in
proposed (now final) §§ 404.1512(c) and
416.912(c) to require claimants (or their
representatives) to request and submit
all medical and non-medical evidence
from all sources, and we modified these
sections to clarify that claimants must
only submit evidence ‘‘received’’ from
another source in its entirety. We did
not adopt the comments recommending
that we permit claimants or their
representatives to decide what evidence
they would like to submit from these
other sources, because this would
undermine the purpose of the final rule,
which is to enable us to have more
complete records on which to
adjudicate claims more accurately.
Second, as we previously stated, we
modified proposed (now final)
§§ 404.1512(c) and 416.912(c) to require
the submission of evidence received
from another source in its entirety,
unless previously submitted by the
claimant or otherwise instructed by us
in a particular case. We believe these
exceptions to the general requirement
for submission of evidence in its
entirety will reduce the receipt of
duplicative and, therefore, unnecessary
evidence.
Finally, we do not share the concerns
of the commenters who said the
submission of voluminous documents
by claimants or their representatives
would burden our adjudicators and
delay the adjudication of disability
claims. For example, when a claimant
has had extensive medical treatment, it
is already our practice to request
complete medical records, unless we
can decide the claim based on minimal
objective medical evidence, as in the
case of a compassionate allowance.41
Our program experience shows that our
adjudicators have little difficulty
reviewing medical and other evidence
expeditiously to find the information
41 For more information about compassionate
allowances, see www.socialsecurity.gov/
compassionateallowances.
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they need to decide the claim. We also
continue to expand our use of HIT,
which enables us to speed our review of
medical records, even when they are
voluminous. We intend to take full
advantage of this technology as it
becomes more widespread in the
medical community.
Regulatory Procedures
Executive Order 12866, as
supplemented by Executive Order 13563
We consulted with the Office of
Management and Budget (OMB) and
determined that this final rule meets the
criteria for a significant regulatory
action under Executive Order 12866, as
supplemented by Executive Order
13563. Therefore, OMB reviewed it.
Regulatory Flexibility Act
We certify that this final rule would
not have a significant economic impact
on a substantial number of small entities
because it affects individuals only.
Therefore, a regulatory flexibility
analysis is not required under the
Regulatory Flexibility Act, as amended.
These rules do not create any new or
affect any existing collections and,
therefore, do not require Office of
Management and Budget approval
under the Paperwork Reduction Act.
(Catalog of Federal Domestic Assistance
Program Nos. 96.001, Social Security—
Disability Insurance; 96.002, Social
Security—Retirement Insurance; and 96.004,
Social Security—Survivors Insurance)
List of Subjects
20 CFR Part 404
Administrative practice and
procedure, Blind, Disability benefits,
Old-Age, Survivors, and Disability
Insurance, Reporting and recordkeeping
requirements, Social Security.
20 CFR Part 405
Administrative practice and
procedure, Blind, Disability benefits,
Old-Age, Survivors, and Disability
Insurance, Public assistance programs,
Reporting and recordkeeping
requirements, Social Security,
Supplemental Security Income (SSI).
20 CFR Part 416
Administrative practice and
procedure, Aged, Blind, Disability
benefits, Public assistance programs,
Reporting and recordkeeping
Frm 00031
Fmt 4700
Sfmt 4700
requirements, Supplemental Security
Income (SSI).
Carolyn W. Colvin,
Acting Commissioner of Social Security.
For the reasons stated in the
preamble, we amend subparts J, P, and
R of part 404, subparts A and D of part
405, and subparts I, N, and O of part 416
as set forth below:
PART 404—FEDERAL OLD–AGE,
SURVIVORS AND DISABILITY
INSURANCE (1950–)
Subpart J—[Amended]
1. The authority citation for subpart J
of part 404 continues to read as follows:
■
Authority: Secs. 201(j), 204(f), 205(a)–(b),
(d)–(h), and (j), 221, 223(i), 225, and 702(a)(5)
of the Social Security Act (42 U.S.C. 401(j),
404(f), 405(a)–(b), (d)–(h), and (j), 421, 423(i),
425, and 902(a)(5)); sec. 5, Pub. L. 97–455, 96
Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)–
(e), and 15, Pub. L. 98–460, 98 Stat. 1802 (42
U.S.C. 421 note); sec. 202, Pub. L. 108–203,
118 Stat. 509 (42 U.S.C. 902 note).
2. Amend § 404.900 by revising
paragraph (b) to read as follows:
■
§ 404.900
Introduction.
*
Paperwork Reduction Act
PO 00000
14835
*
*
*
*
(b) Nature of the administrative
review process. In making a
determination or decision in your case,
we conduct the administrative review
process in an informal, non-adversarial
manner. Subject to the limitations on
Appeals Council consideration of
additional evidence (see §§ 404.970(b)
and 404.976(b)), we will consider at
each step of the review process any
information you present as well as all
the information in our records. You may
present the information yourself or have
someone represent you, including an
attorney. If you are dissatisfied with our
decision in the review process, but do
not take the next step within the stated
time period, you will lose your right to
further administrative review and your
right to judicial review, unless you can
show us that there was good cause for
your failure to make a timely request for
review.
■ 3. Revise § 404.935 to read as follows:
§ 404.935 Submitting evidence prior to a
hearing before an administrative law judge.
You should submit information or
evidence as required by § 404.1512 or
any summary of the evidence to the
administrative law judge with the
request for hearing or within 10 days
after filing the request, if possible. Each
party shall make every effort to ensure
that the administrative law judge
receives all of the evidence (see
§ 404.1512) or all of the evidence is
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available at the time and place set for
the hearing.
Subpart P—[Amended]
4. The authority citation for subpart P
of part 404 continues to read as follows:
■
Authority: Secs. 202, 205(a)–(b) and (d)–
(h), 216(i), 221(a), (i), and (j), 222(c), 223,
225, and 702(a)(5) of the Social Security Act
(42 U.S.C. 402, 405(a)–(b) and (d)–(h), 416(i),
421(a), (i), and (j), 422(c), 423, 425, and
902(a)(5)); sec. 211(b), Pub. L. 104–193, 110
Stat. 2105, 2189; sec. 202, Pub. L. 108–203,
118 Stat. 509 (42 U.S.C. 902 note).
5. In § 404.1512, revise paragraphs (a)
through (c) to read as follows:
■
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§ 404.1512
Evidence.
(a) General. In general, you have to
prove to us that you are blind or
disabled. You must inform us about or
submit all evidence known to you that
relates to whether or not you are blind
or disabled. This duty is ongoing and
requires you to disclose any additional
related evidence about which you
become aware. This duty applies at each
level of the administrative review
process, including the Appeals Council
level if the evidence relates to the
period on or before the date of the
administrative law judge hearing
decision. We will consider only
impairment(s) you say you have or
about which we receive evidence.
(b) What we mean by ‘‘evidence.’’
Evidence is anything you or anyone else
submits to us or that we obtain that
relates to your claim.
(1) Evidence includes, but is not
limited to:
(i) Objective medical evidence, that is,
medical signs and laboratory findings as
defined in § 404.1528(b) and (c);
(ii) Other evidence from medical
sources, such as medical history,
opinions, and statements about
treatment you have received;
(iii) Statements you or others make
about your impairment(s), your
restrictions, your daily activities, your
efforts to work, or any other statements
you make to medical sources during the
course of examination or treatment, or
to us during interviews, on applications,
in letters, and in testimony in our
administrative proceedings;
(iv) Information from other sources, as
described in § 404.1513(d);
(v) Decisions by any governmental or
nongovernmental agency about whether
or not you are disabled or blind (see
§ 404.1504);
(vi) At the initial level of the
administrative review process, when a
State agency disability examiner makes
the initial determination alone (see
§ 404.1615(c)(3)), opinions provided by
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State agency medical and psychological
consultants and other program
physicians, psychologists, or other
medical specialists based on their
review of the evidence in your case
record (see § 404.1527(e)(1)(ii));
(vii) At the reconsideration level of
the administrative review process, when
a State agency disability examiner
makes the determination alone (see
§ 404.1615(c)(3)), findings, other than
the ultimate determination about
whether or not you are disabled, made
by the State agency medical or
psychological consultants and other
program physicians, psychologists, or
other medical specialists at the initial
level of the administrative review
process, and other opinions they
provide based on their review of the
evidence in your case record at the
initial and reconsideration levels (see
§ 404.1527(e)(1)(iii)); and
(viii) At the administrative law judge
and Appeals Council levels, findings,
other than the ultimate determination
about whether or not you are disabled,
made by State agency medical or
psychological consultants and other
program physicians or psychologists, or
other medical specialists, and opinions
expressed by medical experts or
psychological experts that we consult
based on their review of the evidence in
your case record (see §§ 404.1527(e)(2)–
(3)).
(2) Exceptions. Notwithstanding
paragraph (b)(1) of this section,
evidence does not include:
(i) Oral or written communications
between you and your representative
that are subject to the attorney-client
privilege, unless you voluntarily
disclose the communication to us; or
(ii) Your representative’s analysis of
your claim, unless he or she voluntarily
discloses it to us. Your representative’s
‘‘analysis of your claim,’’ means
information that is subject to the
attorney work product doctrine, but it
does not include medical evidence,
medical source opinions, or any other
factual matter that we may consider in
determining whether or not you are
entitled to benefits (see paragraph
(b)(2)(iv) of this section).
(iii) The provisions of paragraph
(b)(2)(i) apply to communications
between you and your non-attorney
representative only if the
communications would be subject to the
attorney-client privilege, if your nonattorney representative were an
attorney. The provisions of paragraph
(b)(2)(ii) apply to the analysis of your
claim by your non-attorney
representative only if the analysis of
your claim would be subject to the
attorney work product doctrine, if your
PO 00000
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Fmt 4700
Sfmt 4700
non-attorney representative were an
attorney.
(iv) The attorney-client privilege
generally protects confidential
communications between an attorney
and his or her client that are related to
providing or obtaining legal advice. The
attorney work product doctrine
generally protects an attorney’s analysis,
theories, mental impressions, and notes.
In the context of your disability claim,
neither the attorney-client privilege nor
the attorney work product doctrine
allows you to withhold factual
information, medical source opinions,
or other medical evidence that we may
consider in determining whether or not
you are entitled to benefits. For
example, if you tell your representative
about the medical sources you have
seen, your representative cannot refuse
to disclose the identity of those medical
sources to us based on the attorneyclient privilege. As another example, if
your representative asks a medical
source to complete an opinion form
related to your impairment(s),
symptoms, or limitations, your
representative cannot withhold the
completed opinion form from us based
on the attorney work product doctrine.
The attorney work product doctrine
would not protect the source’s opinions
on the completed form, regardless of
whether or not your representative used
the form in his or her analysis of your
claim or made handwritten notes on the
face of the report.
(c) Your responsibility. You must
inform us about or submit all evidence
known to you that relates to whether or
not you are blind or disabled. When you
submit evidence received from another
source, you must submit that evidence
in its entirety, unless you previously
submitted the same evidence to us or we
instruct you otherwise. If we ask you,
you must inform us about:
(1) Your medical source(s);
(2) Your age;
(3) Your education and training;
(4) Your work experience;
(5) Your daily activities both before
and after the date you say that you
became disabled;
(6) Your efforts to work; and
(7) Any other factors showing how
your impairment(s) affects your ability
to work. In §§ 404.1560 through
404.1569a, we discuss in more detail the
evidence we need when we consider
vocational factors.
*
*
*
*
*
Subpart R—[Amended]
6. The authority citation for subpart R
of part 404 continues to read as follows:
■
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Authority: Secs. 205(a), 206, 702(a)(5), and
1127 of the Social Security Act (42 U.S.C.
405(a), 406, 902(a)(5), and 1320a–6).
7. In § 404.1740, revise paragraphs
(b)(1) and (b)(2)(i) through (vi) and add
paragraph (b)(2)(vii) to read as follows:
■
§ 404.1740 Rules of conduct and
standards of responsibility for
representatives.
*
*
*
*
*
(b) * * *
(1) Act with reasonable promptness to
help obtain the information or evidence
that the claimant must submit under our
regulations, and forward the
information or evidence to us for
consideration as soon as practicable.
(2) * * *
(i) The claimant’s medical source(s);
(ii) The claimant’s age;
(iii) The claimant’s education and
training;
(iv) The claimant’s work experience;
(v) The claimant’s daily activities both
before and after the date the claimant
alleges that he or she became disabled;
(vi) The claimant’s efforts to work;
and
(vii) Any other factors showing how
the claimant’s impairment(s) affects his
or her ability to work. In §§ 404.1560
through 404.1569a, we discuss in more
detail the evidence we need when we
consider vocational factors;
*
*
*
*
*
PART 405—ADMINISTRATIVE REVIEW
PROCESS FOR ADJUDICATING
INITIAL DISABILITY CLAIMS
8. The authority citation for part 405
continues to read as follows:
■
Authority: Secs. 201(j), 205(a)–(b), (d)–(h),
and (s), 221, 223(a)–(b), 702(a)(5), 1601, 1602,
1631, and 1633 of the Social Security Act (42
U.S.C. 401(j), 405(a)–(b), (d)–(h), and (s), 421,
423(a)–(b), 902(a)(5), 1381, 1381a, 1383, and
1383b).
Subpart A—[Amended]
9. In § 405.1, revise the first sentence
of paragraph (c)(2) to read as follows:
■
§ 405.1
Introduction.
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*
*
*
*
*
(c) * * *
(2) Evidence considered and right to
representation. Subject to §§ 405.331
and 405.430, you must submit evidence
and information to us (see §§ 404.1512
and 416.912 of this chapter). * * *
*
*
*
*
*
Subpart D—[Amended]
10. In § 405.331, revise the first two
sentences of paragraph (a) to read as
follows:
■
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18:21 Mar 19, 2015
Jkt 235001
§ 405.331 Submitting evidence to an
administrative law judge.
(a) When you submit your request for
hearing, you should also submit
information or evidence as required by
§§ 404.1512 or 416.912 of this chapter or
any summary of the evidence to the
administrative law judge. You must
submit any written evidence no later
than 5 business days before the date of
the scheduled hearing. * * *
*
*
*
*
*
PART 416—SUPPLEMENTAL
SECURITY INCOME FOR THE AGED,
BLIND, AND DISABLED
Subpart I—[Amended]
11. The authority citation for subpart
I of part 416 continues to read as
follows:
■
Authority: Secs. 221(m), 702(a)(5), 1611,
1614, 1619, 1631(a), (c), (d)(1), and (p), and
1633 of the Social Security Act (42 U.S.C.
421(m), 902(a)(5), 1382, 1382c, 1382h,
1383(a), (c), (d)(1), and (p), and 1383b); secs.
4(c) and 5, 6(c)–(e), 14(a), and 15, Pub. L. 98–
460, 98 Stat. 1794, 1801, 1802, and 1808 (42
U.S.C. 421 note, 423 note, and 1382h note).
12. In § 416.912, revise paragraphs (a)
through (c) to read as follows:
■
§ 416.912
Evidence.
(a) General. In general, you have to
prove to us that you are blind or
disabled. You must inform us about or
submit all evidence known to you that
relates to whether or not you are blind
or disabled. This duty is ongoing and
requires you to disclose any additional
related evidence about which you
become aware. This duty applies at each
level of the administrative review
process, including the Appeals Council
level if the evidence relates to the
period on or before the date of the
administrative law judge hearing
decision. We will consider only
impairment(s) you say you have or
about which we receive evidence.
(b) What we mean by ‘‘evidence.’’
Evidence is anything you or anyone else
submits to us or that we obtain that
relates to your claim.
(1) Evidence includes, but is not
limited to:
(i) Objective medical evidence, that is,
medical signs and laboratory findings as
defined in § 416.928(b) and (c);
(ii) Other evidence from medical
sources, such as medical history,
opinions, and statements about
treatment you have received;
(iii) Statements you or others make
about your impairment(s), your
restrictions, your daily activities, your
efforts to work, or any other statements
you make to medical sources during the
PO 00000
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Fmt 4700
Sfmt 4700
14837
course of examination or treatment, or
to us during interviews, on applications,
in letters, and in testimony in our
administrative proceedings;
(iv) Information from other sources, as
described in § 416.913(d);
(v) Decisions by any governmental or
nongovernmental agency about whether
or not you are disabled or blind (see
§ 416.904);
(vi) At the initial level of the
administrative review process, when a
State agency disability examiner makes
the initial determination alone (see
§ 416.1015(c)(3)), opinions provided by
State agency medical and psychological
consultants and other program
physicians, psychologists, or other
medical specialists based on their
review of the evidence in your case
record (see § 416.927(e)(1)(ii));
(vii) At the reconsideration level of
the administrative review process, when
a State agency disability examiner
makes the determination alone (see
§ 416.1015(c)(3)), findings, other than
the ultimate determination about
whether or not you are disabled, made
by the State agency medical or
psychological consultants and other
program physicians, psychologists, or
other medical specialists at the initial
level of the administrative review
process, and other opinions they
provide based on their review of the
evidence in your case record at the
initial and reconsideration levels (see
§ 416.927(e)(1)(iii)); and
(viii) At the administrative law judge
and Appeals Council levels, findings,
other than the ultimate determination
about whether or not you are disabled,
made by State agency medical or
psychological consultants and other
program physicians or psychologists, or
other medical specialists, and opinions
expressed by medical experts or
psychological experts that we consult
based on their review of the evidence in
your case record (see §§ 416.927(e)(2)–
(3)).
(2) Exceptions. Notwithstanding
paragraph (b)(1) of this section,
evidence does not include:
(i) Oral or written communications
between you and your representative
that are subject to the attorney-client
privilege, unless you voluntarily
disclose the communication to us; or
(ii) Your representative’s analysis of
your claim, unless he or she voluntarily
discloses it to us. Your representative’s
‘‘analysis of your claim,’’ means
information that is subject to the
attorney work product doctrine, but it
does not include medical evidence,
medical source opinions, or any other
factual matter that we may consider in
determining whether or not you are
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eligible for benefits (see paragraph
(b)(2)(iv) of this section).
(iii) The provisions of paragraph
(b)(2)(i) apply to communications
between you and your non-attorney
representative only if the
communications would be subject to the
attorney-client privilege, if your nonattorney representative were an
attorney. The provisions of paragraph
(b)(2)(ii) apply to the analysis of your
claim by your non-attorney
representative only if the analysis of
your claim would be subject to the
attorney work product doctrine, if your
non-attorney representative were an
attorney.
(iv) The attorney-client privilege
generally protects confidential
communications between an attorney
and his or her client that are related to
providing or obtaining legal advice. The
attorney work product doctrine
generally protects an attorney’s analysis,
theories, mental impressions, and notes.
In the context of your disability claim,
neither the attorney-client privilege nor
the attorney work product doctrine
allows you to withhold factual
information, medical source opinions,
or other medical evidence that we may
consider in determining whether or not
you are eligible for benefits. For
example, if you tell your representative
about the medical sources you have
seen, your representative cannot refuse
to disclose the identity of those medical
sources to us based on the attorneyclient privilege. As another example, if
your representative asks a medical
source to complete an opinion form
related to your impairment(s),
symptoms, or limitations, your
representative cannot withhold the
completed opinion form from us based
on the attorney work product doctrine.
The attorney work product doctrine
would not protect the source’s opinions
on the completed form, regardless of
whether or not your representative used
the form in his or her analysis of your
claim or made handwritten notes on the
face of the report.
(c) Your responsibility. You must
inform us about or submit all evidence
known to you that relates to whether or
not you are blind or disabled. When you
submit evidence received from another
source, you must submit that evidence
in its entirety, unless you previously
submitted the same evidence to us or we
instruct you otherwise. If we ask you,
you must inform us about:
(1) Your medical source(s);
(2) Your age;
(3) Your education and training;
(4) Your work experience;
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18:21 Mar 19, 2015
Jkt 235001
(5) Your daily activities both before
and after the date you say that you
became disabled;
(6) Your efforts to work; and
(7) Any other factors showing how
your impairment(s) affects your ability
to work. In §§ 416.960 through
416.969a, we discuss in more detail the
evidence we need when we consider
vocational factors.
*
*
*
*
*
13. The authority citation for subpart
N of part 416 continues to read as
follows:
■
Authority: Secs. 702(a)(5), 1631, and 1633
of the Social Security Act (42 U.S.C.
902(a)(5), 1383, and 1383b); sec. 202, Pub. L.
108–203, 118 Stat. 509 (42 U.S.C. 902 note).
14. Amend § 416.1400 by revising
paragraph (b) to read as follows:
■
Introduction.
*
*
*
*
*
(b) Nature of the administrative
review process. In making a
determination or decision in your case,
we conduct the administrative review
process in an informal, non-adversarial
manner. Subject to the limitations on
Appeals Council consideration of
additional evidence (see §§ 416.1470(b)
and 416.1476(b)), we will consider at
each step of the review process any
information you present as well as all
the information in our records. You may
present the information yourself or have
someone represent you, including an
attorney. If you are dissatisfied with our
decision in the review process, but do
not take the next step within the stated
time period, you will lose your right to
further administrative review and your
right to judicial review, unless you can
show us that there was good cause for
your failure to make a timely request for
review.
■ 15. Revise § 416.1435 to read as
follows:
§ 416.1435 Submitting evidence prior to a
hearing before an administrative law judge.
You should submit information or
evidence as required by § 416.912 or any
summary of the evidence to the
administrative law judge with the
request for hearing or within 10 days
after filing the request, if possible. Each
party shall make every effort to ensure
that the administrative law judge
receives all of the evidence (see
§ 416.912) or all of the evidence is
available at the time and place set for
the hearing.
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16. The authority citation for subpart
O of part 416 continues to read as
follows:
■
Authority: Secs. 702(a)(5), 1127, and
1631(d) of the Social Security Act (42 U.S.C.
902(a)(5), 1320a–6, and 1383(d)).
17. In § 416.1540, revise paragraphs
(b)(1) and (b)(2)(i) through (vi) and add
paragraph (b)(2)(vii) to read as follows:
■
§ 416.1540 Rules of conduct and
standards of responsibility for
representatives.
Subpart N—[Amended]
§ 416.1400
Subpart O—[Amended]
*
*
*
*
*
(b) * * *
(1) Act with reasonable promptness to
help obtain the information or evidence
that the claimant must submit under our
regulations, and forward the
information or evidence to us for
consideration as soon as practicable.
(2) * * *
(i) The claimant’s medical source(s);
(ii) The claimant’s age;
(iii) The claimant’s education and
training;
(iv) The claimant’s work experience;
(v) The claimant’s daily activities both
before and after the date the claimant
alleges that he or she became disabled;
(vi) The claimant’s efforts to work;
and
(vii) Any other factors showing how
the claimant’s impairment(s) affects his
or her ability to work. In §§ 416.960
through 416.969a, we discuss in more
detail the evidence we need when we
consider vocational factors;
*
*
*
*
*
[FR Doc. 2015–05921 Filed 3–19–15; 8:45 am]
BILLING CODE 4191–02–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Part 14
[Docket No. FDA–2012–N–0218]
Advisory Committee; Antiviral Drugs
Advisory Committee; Termination
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Final rule.
The Food and Drug
Administration (FDA) is announcing the
termination of the Antiviral Drugs
Advisory Committee. This document
removes the Antiviral Drugs Advisory
Committee from the Agency’s list of
standing advisory committees.
DATES: This rule is effective March 20,
2015.
SUMMARY:
E:\FR\FM\20MRR1.SGM
20MRR1
| File Type | application/pdf |
| File Modified | 2015-03-20 |
| File Created | 2015-03-20 |