article SSA’s “All” Evidence Rule: What does this mean for the SOAR Practitioner?

About the All Evidence Rule

Purpose: “Submission of Evidence in Disability Claims”

Key Requirements of Rule

Representative Must Submit All Evidence Received

• Must submit all evidence that the representative receives that “relates” to a disability claim
• Must submit favorable and unfavorable evidence even if not “material”
• May not withhold evidence based on impairment or the date of evidence

Representative Must Inform Agency [SSA] About All Evidence

• Must submit all evidence received and inform the Agency [SSA] of all evidence the representative does not receive
• “You must inform us about or submit all evidence known to you that relates to whether or not you are blind or disabled.”

There Are Two Privileged Communications Exceptions

• Confidential communications between a claimant and an attorney or a non-attorney representative are protected unless the privilege is waived
  • Privilege does not cover any fact, e.g., work activity or medical treatment, relating to the disability claim
  • Oral communication with a medical source is privileged
  • Representative may still protect from disclosure their consultation with any medical source about the claimant’s medical condition. “If a representative takes notes during a discussion with a claimant's medical source, those notes are protected from disclosure as work product.”
• Work product (but not facts about a claim) may be withheld, e.g., analysis, theories, and notes
  • A representative will have an opportunity to comment on any unfavorable medical opinion submitted
  • A representative may obtain another opinion from a medical source
  • The rule requires advocacy based on a complete factual record

Duty to Submit “All” Evidence Received In Its “Entirety”

• Must submit all evidence “received” in “its entirety” unless – the exact “same” evidence was “previously submitted” [avoids duplication] or the Agency [SSA] instructs “otherwise”
• Submitting received evidence is a clerical task, i.e., it does not involve legal judgment
• No medical impairment is irrelevant; evidence relating to all impairments must be submitted if received
• Evidence may not be withheld based on time relevance, e.g., prior to the alleged onset date (AOD)
• No matter how voluminous the evidence received, it must all be submitted if received [Note: No VA records exception]
• No duty to request all evidence, but only to submit all evidence received [SSA has an obligation to request]
• No duty to resubmit the “exact” evidence already submitted; must submit a document previously submitted if that document is different in any way from the one submitted
• All “completed” medical source statements, including “completed” forms
• Evidence generated for other purposes, e.g., workers’ compensation
• All non‐medical evidence that relates to a claim

Duty to Inform Agency About Evidence Not Submitted

• Must inform Agency [SSA] about all evidence or submit all evidence that relates to a claim, e.g., workers’ compensation proceedings, etc.
  • Claimant must use “reasonable, good faith judgment” applying the broad definition of “relates” to a claim
  • Unclear whether there is a duty to inform the Agency about any social media activity that relates to a claim, e.g., evidence of activities of daily living

“All” Evidence Does Not Mean “All” Evidence

• “All” does not mean literally “all”
  • No duty to memorialize an oral communication
  • No duty to identify laypersons, e.g., family or friends, with knowledge of the claimant
  • No duty to inform the Agency [SSA] about potential adverse lay witnesses

Duty to Submit/Inform is Ongoing

• Duty to submit to or inform the Agency [SSA] of all evidence is ongoing during administrative proceedings
• An ALJ’s closing of the record does not end a representative’s duty
• Final rule may require submitting any evidence that “relates” to a claim after the closing of the record
• Duty to submit to or inform the Agency [SSA] of all evidence, including proceedings before the Appeals Council

Scenarios

Scenario #1

I have reams and reams of VA records. DDS used to advise me to send only what pertained to the onset of disability. Should I send these records in their entirety?

• Rule: According to the rule, you would send ALL records to DDS, even those records sent that cover periods prior to the onset date. Note: There is no VA records exception.
• Practice Tip:  Have a conversation with your DDS liaison. 

Scenario #2

I received an amended Medical Summary Report (MSR) from the applicant’s medical doctor, which is not favorable to the case. Do I need to send it to DDS?

• Rule: Yes
• Practice Tip: Yes, you must send the amended report, whether considered favorable or unfavorable. It is not considered work product. An example of a work product would be the FAST MSR Interview Guide and Template, which is used for note-taking. You would not be required under this Rule to send in the worksheet.