Ashleigh Quinn Gallagher, Pond Lehocky Stern Giordano

Over the last two years, the Social Security Administration (SSA) has made a host of recent changes to the rules and regulations governing Social Security disability cases. These changes have trended toward making it more difficult for attorneys representing SSD claimants to manage cases, evaluate the potential case strength of claims and withdraw from cases in which the claimants are not cooperating or have disappeared. This can make managing a practice based on contingent-fees far more complex.

Here are some of those recent changes and their effects on Social Security disability practice.

The ‘Five-Day Rule’

The first major change was the implementation of the so-called “five-day rule.” Under 20 C.F.R. Section 404.935, which became effective in May 2017, all evidence must be submitted at least five business days before the hearing, or the judge must be informed about the evidence. The rule states that the administrative law judge (ALJ) may refuse to consider any evidence that was submitted after the deadline.

Some judges have taken a hard line on this rule and will not allow any evidence to be submitted after the hearing without good cause. Further clouding the issue is that there is very little in the way of concrete rules outlining what will constitute good cause for the submission of evidence within five business days of the hearing. The application of this good cause standard varies drastically depending on the ALJ’s interpretation of the regulations.

This rule becomes particularly challenging to contend with when representing clients with disabilities involving mental limitations. At times, the limitations from a client’s disability may prevent them from informing the attorneys about all their medical providers in a timely fashion. In addition, claimants will almost always have additional medical records because their treatment is ongoing, yet this rule allows ALJs to disregard evidence that is materially relevant if they do not feel the good cause was met.

Withdrawal of Representation

The SSA implemented 20 C.F.R. Section 404.1740(b)(3)(iv), which provides that once a hearing has been scheduled, an attorney may only withdraw representation in “extraordinary circumstances.” This rule became effective in August 2018.

This is problematic for many reasons, including the fact that SSD representation is contingent-fee based. The rule may prevent an attorney from withdrawing from representation if he or she has learned additional information about the strength of the case that may not have been previously available. In addition, it creates further difficulties for attorneys dealing with difficult claimants or those that have disappeared or become impossible to contact.

Some ALJs have refused to allow attorneys to withdraw from representation once they are scheduled for a hearing. They also have authority to issue sanctions. One of the main hinderances to the new rule is the fact that “extraordinary circumstances” has yet to be defined and can vary wildly from one ALJ to another.

Additionally, the scheduling of hearings varies drastically, happening anywhere from 12 months to 24 months after a request for hearing has been submitted. SSD attorneys are notified that a hearing is scheduled when we receive the Notice of Hearing setting a date and time. Claimants’ attorneys are made to play a guessing game when preparing a case, particularly one for a difficult, nonresponsive or absent claimant.

No Deference to Treating Doctors

How the SSA considers medical opinions changed significantly on March 27, 2017, when 20 C.F.R. Section 404.1520c became effective.

Under the previous rule, 20 C.F.R. Section 404.1527, considerable deference was given to a treating doctor’s opinion on a patient’s limitations. If the opinion was consistent with the weight of the medical evidence, the ALJ was to give it controlling weight. If it was not consistent, then the ALJ was left to decide how much weight a medical opinion in the file was worth.

Under the new rule, treating physician’s opinions no longer receive any deference or be assigned specific evidentiary weight. The new rule uses terms like “supportability” and “consistency, thus generally weakening the treating doctors’ opinions on their patients’ limitations and abilities. This allows much greater leeway to an ALJ to dismiss these opinions outright.

‘All Evidence’ Rule

The SSA has also amended 20 C.F.R. Section 404.1512 to require that claimants and their attorneys submit or make the ALJ aware of all evidence known to them relating to their disability claim, including adverse evidence. Prior to the change, which went into effect in March 2017, attorneys only needed to submit evidence “material” to the issue of whether the claimant is disabled.

The amendment now requires that attorneys submit residual functional capacity evaluations, or “RFCs,” that they have crafted themselves, and sent to the claimants’ doctors to complete. It may be argued that these RFCs are attorney work product that would not be discoverable in other types of cases.

Disclosure of Referrals to Doctors

The SSA has also added 20 C.F.R. Section 404.1740 (b)(5), which requires attorneys must now disclose if he has referred a claimant to a doctor who provided an opinion on the claimant’s abilities and limitations. This includes when a firm has referred a client to a doctor for another matter, such as a workers’ compensation claim or a personal injury lawsuit.

This disclosure may unfairly call into question or cast doubt on the legitimacy of the treatment itself or any opinions offered. Claimants have for years relied on their attorneys for assistance in finding well-respected doctors to treat their conditions. SSD attorneys, who must frequently deal with medical providers, are in a unique position to assist clients with finding medical providers. Such referrals are part of the holistic service provided by attorneys and that should not be used against clients.

Pitfalls to Avoid

The new rules implemented in the last couple of years pose significant challenges for attorneys representing Social Security disability claimants. They have created considerable pitfalls and obstacles attorneys and their clients must avoid in navigating the SSD hearing process. Several of the rule changes impose restrictions on both the way evidence is submitted and the weight it is given, providing ALJs with greater latitude in denying claims.

The new rules have made a confusing and challenging process that are much more difficult to navigate. One misstep along the way can cause an SSD application to be denied, leaving the claimant without benefits. These changes underscore the need for claimants to have experienced counsel represent them in their SSD cases.

Ashleigh Quinn Gallagher, a senior associate with Pond Lehocky Stern Giordano, focuses her practice exclusively on Social Security disability law. Contact her at aquinn@pondlehocky.com.