Regarding a duty on the part of a claimant’s representative to provide to the Social Security Administration and/or the office of Disability Adjudication and Review any “adverse evidence” that they may have in their claimant’s file.
The Social Security Administration is considering a requirement that all representatives and/or claimants submit not only favorable evidence, but also ”adverse evidence” that they may have concerning their Social Security disability claim.
Up until now, the Social Security Administration has relied upon the local state Bar Association guidelines, or each representative, regarding their duty to submit “adverse evidence”.
Here in the state of Washington, rules governing the conduct of attorneys require that claimant representatives provide all relevant evidence to the tribunal. Thus, we have made an effort to submit both favorable and unfavorable evidence and encouraged the trier of fact (Administrative Law Judge) to interpret the evidence in a manner favorable to our client’s interest.
Recently, I attended a seminar hosted by attorneys from an eastern state. The obligation to submit “adverse evidence” was addressed by the settlor. It was interesting to hear their interpretation of the relative duties to the tribunal.
In their opinion, based upon their state bar regulations, they felt that “adverse evidence” that might include a report from a commissioned medical exam done by another state agency such as a Department of Labor and Industries panel evaluation, or an examination done by an insurance company, or an examination done by a self-insured employer were never to be considered credible as the examiner is evaluating the individual strictly for the purpose of denying benefits, and never truly as a source of an independent evaluation. They considered these evaluation reports to be seen as not credible, and otherwise completed under biased circumstances, therefore they felt that they were not obligated to submit the information to the Social Security Administration.
I believe that a totally different result is required under the Washington State bar rules. See Washington Courts Website-Rules of Professional Conduct (3.3(4)(f).
It is likely that the Social Security Administration will carry out its intent and will write a rule that requires all representatives to submit all evidence, even that which is deemed to be “adverse evidence”.
The proposed rule would require that representatives “inform us (Social Security Administration) about or submit all evidence known to you that relates to whether or not you are blind or disabled”.
I believe that the new rule being considered by the Social Security Administration will be in direct correlation with State Bar rules here in the state of Washington. It will not likely affect how we represent our clients.