Submission of Evidence in Disability Claims, 14828-14838 [2015-05921]

Agencies

• Social Security Administration

[Federal Register Volume 80, Number 54 (Friday, March 20, 2015)]
[Rules and Regulations]
[Pages 14828-14838]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-05921]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404, 405, and 416

[Docket No. SSA-2012-0068]
RIN 0960-AH53


Submission of Evidence in Disability Claims

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: 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 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: This rule is effective April 20, 2015.

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 https://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

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.
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    \1\ The NPRM is available at https://www.gpo.gov/fdsys/pkg/FR-2014-02-20/pdf/2014-03426.pdf.
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Public Comments

    We provided 60 days for the public to comment on the NPRM. We 
received 85

[[Page 14829]]

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 non-medical 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 Sec. Sec.  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 
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\
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    \2\ 79 FR at 9665.
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    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.
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    \3\ See 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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    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.
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    \6\ See 20 CFR 404.1740 and 416.1540.
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    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\
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    \7\ 79 FR at 9664.
    \8\ Id.
    \9\ Id.
    \10\ Id. at 9665.
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    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

[[Page 14830]]

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 Sec. Sec.  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\
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    \11\ See Form SSA-3368-BK, Disability Report--Adult (available 
at https://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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    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 Sec. Sec.  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\
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    \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).
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    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) Sec. Sec.  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 Sec. Sec.  404.1512(a) 
and 416.912(a) (for the 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.
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    \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 https://www.acus.gov/sites/default/files/documents/ACUS_Final_Report_SSA_Duty_of_Candor.pdf.
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    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 
Sec. Sec.  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.

[[Page 14831]]

    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.
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    \16\ 42 U.S.C. 1320a-8.
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    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 
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.
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    \17\ See 20 CFR 404.902 and 416.1402.
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    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 non-adversarial 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 
non-medical 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.
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    \18\ 79 FR at 9665.
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    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 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.
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    \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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    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.

[[Page 14832]]

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 non-attorney) 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.
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    \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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    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 non-medical evidence collection 
process.
    Comment: Several commenters expressed concern about our removal of 
the term ``relevant'' in proposed Sec. Sec.  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 disability-related 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) 
Sec. Sec.  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 Sec. Sec.  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 of ``evidence'' that we go on to define in these 
sections, such as the ``other statements'' referred to in final 
Sec. Sec.  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 attorney-client privilege and the attorney 
work product doctrine in proposed Sec. Sec.  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 by either an 
attorney or a qualified non-attorney representative.\26\
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    \24\ 79 FR at 9665-66.
    \25\ See 20 CFR 404.1740 and 416.1540.
    \26\ ACUS Final Report at 38.
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    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) 
Sec. Sec.  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 non-attorney) that 
are, or would be, subject to the attorney-client privilege, unless the 
claimant voluntarily discloses them to us. In proposed (now final) 
Sec. Sec.  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.
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    \27\ As 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.
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    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

[[Page 14833]]

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 non-attorney) 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, 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.
---------------------------------------------------------------------------

    \33\ See Form SSA-827, Authorization to Disclose Information to 
the Social Security Administration.
---------------------------------------------------------------------------

    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 Sec. Sec.  
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 Sec. Sec.  
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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    Comment: Several commenters asked why we proposed a more limited 
version of the work product doctrine in Sec. Sec.  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 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) Sec. Sec.  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.
---------------------------------------------------------------------------

    \36\ 79 FR at 9666.
---------------------------------------------------------------------------

    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 Sec. Sec.  
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

[[Page 14834]]

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 non-medical 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) Sec. Sec.  
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 Sec. Sec.  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 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.
---------------------------------------------------------------------------

    \37\ Id. at 9665 (emphasis added).
    \38\ Id. at 9666.
    \39\ These are the Form SSA-3368-BK, Disability Report--Adult 
(available at: https://www.socialsecurity.gov/forms/ssa-3368.pdf), 
and the Form SSA-3820-BK, Disability Report--Child (available at: 
https://www.socialsecurity.gov/forms/ssa-3820.pdf).
---------------------------------------------------------------------------

    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 
Sec. Sec.  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, and not simply the substance of what is in the 
record.
    The other exception we provide in final Sec. Sec.  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 Sec. Sec.  
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.
---------------------------------------------------------------------------

    \40\ See final 20 CFR 404.1512(a) and 416.912(a).
---------------------------------------------------------------------------

    Comment: Many commenters said our requirement in proposed 
Sec. Sec.  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

[[Page 14835]]

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) Sec. Sec.  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) 
Sec. Sec.  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 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.
---------------------------------------------------------------------------

    \41\ For more information about compassionate allowances, see 
www.socialsecurity.gov/compassionateallowances.
---------------------------------------------------------------------------

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.

Paperwork Reduction Act

    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 
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]

0
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).


0
2. Amend Sec.  404.900 by revising paragraph (b) to read as follows:


Sec.  404.900  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 Sec. Sec.  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.

0
3. Revise Sec.  404.935 to read as follows:


Sec.  404.935  Submitting evidence prior to a hearing before an 
administrative law judge.

    You should submit information or evidence as required by Sec.  
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 Sec.  
404.1512) or all of the evidence is

[[Page 14836]]

available at the time and place set for the hearing.

Subpart P--[Amended]

0
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).


0
5. In Sec.  404.1512, revise paragraphs (a) through (c) to read as 
follows:


Sec.  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 Sec.  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 Sec.  
404.1513(d);
    (v) Decisions by any governmental or nongovernmental agency about 
whether or not you are disabled or blind (see Sec.  404.1504);
    (vi) At the initial level of the administrative review process, 
when a State agency disability examiner makes the initial determination 
alone (see Sec.  404.1615(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 Sec.  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 Sec.  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 Sec.  
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 Sec. Sec.  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 non-attorney 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 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 attorney-client 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 Sec. Sec.  404.1560 through 404.1569a, we discuss 
in more detail the evidence we need when we consider vocational 
factors.
* * * * *

Subpart R--[Amended]

0
6. The authority citation for subpart R of part 404 continues to read 
as follows:


[[Page 14837]]


    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).


0
7. In Sec.  404.1740, revise paragraphs (b)(1) and (b)(2)(i) through 
(vi) and add paragraph (b)(2)(vii) to read as follows:


Sec.  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 Sec. Sec.  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

0
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]

0
9. In Sec.  405.1, revise the first sentence of paragraph (c)(2) to 
read as follows:


Sec.  405.1  Introduction.

* * * * *
    (c) * * *
    (2) Evidence considered and right to representation. Subject to 
Sec. Sec.  405.331 and 405.430, you must submit evidence and 
information to us (see Sec. Sec.  404.1512 and 416.912 of this 
chapter). * * *
* * * * *

 Subpart D--[Amended]

0
10. In Sec.  405.331, revise the first two sentences of paragraph (a) 
to read as follows:


Sec.  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 Sec. Sec.  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]

0
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).


0
12. In Sec.  416.912, revise paragraphs (a) through (c) to read as 
follows:


Sec.  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 Sec.  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 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 Sec.  
416.913(d);
    (v) Decisions by any governmental or nongovernmental agency about 
whether or not you are disabled or blind (see Sec.  416.904);
    (vi) At the initial level of the administrative review process, 
when a State agency disability examiner makes the initial determination 
alone (see Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec. Sec.  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

[[Page 14838]]

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 non-attorney 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 attorney-client 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 Sec. Sec.  416.960 through 416.969a, we discuss in 
more detail the evidence we need when we consider vocational factors.
* * * * *

Subpart N--[Amended]

0
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).


0
14. Amend Sec.  416.1400 by revising paragraph (b) to read as follows:


Sec.  416.1400  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 Sec. Sec.  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.
0
15. Revise Sec.  416.1435 to read as follows:


Sec.  416.1435  Submitting evidence prior to a hearing before an 
administrative law judge.

    You should submit information or evidence as required by Sec.  
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 Sec.  
416.912) or all of the evidence is available at the time and place set 
for the hearing.

Subpart O--[Amended]

0
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)).

0
17. In Sec.  416.1540, revise paragraphs (b)(1) and (b)(2)(i) through 
(vi) and add paragraph (b)(2)(vii) to read as follows:


Sec.  416.1540  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 Sec. Sec.  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