Who Submits Medical Evidence in My Social Security Disability Claim?
At trial your lawyer calls five witnesses to testify. As expected, the first three witnesses are great. Their testimony supports your case and you’re sure that you’re going to win.
The last two witnesses, however, are a nightmare. They attack your credibility, call you a liar, and say that you’re not as injured as you claimed. You’re shocked! Why did your lawyer call the two unfavorable witnesses when you told him they were not supportive and would hurt your case?
Does this situation sound odd? That’s because it is. But it’s exactly what the Social Security Administration (SSA) requires of you and your disability attorney under its rules and regulations.
Let’s take a look at the answer to, “Who submits medical evidence in my Social Security Disability case?
U.S. Code Section 404.512 – Evidence in Social Security Disability Cases
In 2015 the SSA revised its rules and regulations regarding evidence. Under the new law, you and your attorney “must inform [Social Security] 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.”
The SSA defines evidence as anything that relates to your claim, including:
- Objective medical evidence such as operative reports, diagnostic tests, and laboratory findings;
- Medical records and reports from your treating medical providers, including doctors, osteopaths, nurses, licensed clinical social workers, psychologists, therapists, and counselors;
- Opinion statements from your treating providers;
- Any written statement or report that you or someone else completes on your behalf regarding your work attempts, daily activities, and work restrictions;
- Decisions by other government agencies about whether you’re disabled or blind; and,
- Information from other sources, including earnings records and school records.
Evidence does not include your attorney’s written analysis of your claim and its merits. Nor does it include any communication – written, verbal, or otherwise – between you and your attorney. Such communication is protected by the attorney-client privilege.
Why We Don’t Like Social Security’s Rule on Evidence of Disability
Social Security’s new rule forces attorneys to move away from an advocacy role and into a neutral, fact finder role. It should not be your attorney’s job to find, obtain, and submit evidence that could be harmful to your claim. In my opinion this rule is wrong and should be changed.
The new evidence rule means that you and your attorney should have more conversations with your treating medical providers about your claim. Before asking the doctor to complete an opinion statement or write a narrative report, it is important that you find out whether the doctor believes you’re disabled. If you receive an unfavorable report from the doctor, you still have to submit it to the SSA. Such a report could make it nearly impossible for you to get approved for disability benefits.
Who is Responsible for Obtaining Evidence of My Disability in Social Security Cases?
Ultimately you have the burden of proving you’re disabled under the Social Security Act. But the SSA is supposed to help get the evidence.
By law it is the SSA’s responsibility to develop your complete medical history – which includes all treatment notes and operative reports – for at least the 12 months before the month in which you file your application for disability benefits. But you must put the request in writing.
The SSA is supposed to make every reasonable effort to get medical records and reports from your treating providers. This means it will make a request for evidence and, if the evidence is not received within 20 days after the request, it will make a follow up request.
The administrative law judge (ALJ) has the power to subpoena medical reports from your treating providers. We ask the ALJ to do this when our clients get to the hearing level as a precaution. We want all supportive evidence to be filed in your case.
What Happens if I Don’t Submit Medical Evidence in My Social Security Disability Case?
You will likely lose your case if you don’t have evidence that you’re disabled. You must obtain supportive evidence and submit it at least five days before the hearing. If you don’t, the evidence may be excluded. Call Social Security Disability Lawyer Richmond VA Corey Pollard for help developing the evidence in your case. We’ll give you the best chance of winning.