[Federal Register Volume 82, Number 191 (Wednesday, October 4, 2017)]
[Notices]
[Pages 46339-46341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21252]


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SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2017-0048]


Social Security Ruling, SSR 17-4p; Titles II and XVI: 
Responsibility for Developing Written Evidence

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Ruling (SSR).

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SUMMARY: We are providing notice of SSR 17-4p. This SSR clarifies our 
responsibilities and the responsibilities of a claimant and a 
claimant's representative to develop evidence and other information in 
disability and blindness claims.

FOR FURTHER INFORMATION CONTACT: Patrick McGuire, Office of Appellate 
Operations, Social Security Administration, 5107 Leesburg Pike, Falls 
Church, VA 22041, (703) 605-7100. 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 http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do 
not require us to publish this SSR, we are doing so in accordance with 
20 CFR 402.35(b)(1).
    Through SSRs, we make available to the public precedential 
decisions relating to the Federal old-age, survivors, disability, 
supplemental security income, and special veterans' benefits programs. 
We may base SSRs on determinations or decisions made at all levels of 
administrative adjudication, Federal court decisions, Commissioner's 
decisions, opinions of the Office of the General Counsel, or other 
interpretations of the law and regulations.
    Although SSRs do not have the same force and effect as statutes or 
regulations, they are binding on all components of the Social Security 
Administration. 20 CFR 402.35(b)(1).
    This SSR will remain in effect until we publish a notice in the 
Federal Register that rescinds it, or until we publish a new SSR that 
replaces or modifies it.

(Catalog of Federal Domestic Assistance, Programs Nos. 96.001, 
Social Security--Disability Insurance; 96.002, Social Security--
Retirement Insurance; 96.004, Social Security--Survivors Insurance; 
96.006--Supplemental Security Income.)

Nancy A. Berryhill,
Acting Commissioner of Social Security.

POLICY INTERPRETATION RULING

SSR 17-4p: Titles II and XVI: Responsibility for Developing Written 
Evidence

Purpose

    This Ruling clarifies our responsibilities and those of the 
claimant and the claimant's representative to develop evidence and 
other information in disability and blindness claims under titles II 
and XVI of the Social Security Act (Act). This Ruling applies at all 
levels of our administrative review process, as described below.

Citations (Authority)

    Sections 206(a), 223(d), and 1614(a) of the Social Security Act, as 
amended; 20 CFR 404.935, 404.970, 404.1512, 404.1513, 404.1593, 
404.1594, 404.1614, 404.1740, 404.1745, 416.912, 416.913, 416.993, 
416.994, 416.1014, 416.1435, 416.1470, 416.1540, and 416.1545.

Introduction

    We need complete evidentiary records to make accurate, consistent 
disability determinations and decisions at each level of our 
administrative review process. Although we take a role in developing 
the evidentiary record in disability claims, claimants and their 
appointed representatives have the primary responsibility under the Act 
to provide evidence in support of their disability or blindness claims. 
Consequently, we expect claimants and their representatives to make 
good faith efforts to ensure that we receive complete evidence.
    Under the Act, we cannot find that an individual is disabled 
``unless [he or she] furnishes such medical and other evidence of the 
existence thereof as the Commissioner of Social Security may require.'' 
\1\ This statutory provision places primary responsibility for the 
development of evidence on the claimant. Consistent with the claimant's 
statutory obligation to provide us with evidence regarding his or her 
disability or blindness claim, our regulations require a claimant to 
submit or inform us about all evidence known to him or her that relates 
to whether or not he or she is disabled or blind.\2\ At the hearings 
level, a claimant generally must submit or inform us about written 
evidence at least 5 business days before the date of his or her 
scheduled hearing.\3\ We adopted this 5-day requirement in December 
2016 and implemented it in May 2017, to address unprecedented workload 
challenges.\4\ As we explained in the preamble to our notice of 
proposed rulemaking, ``[w]e cannot afford to continue postponing 
hearing proceedings because the record is not complete at the time of 
the hearing.'' \5\
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    \1\ Sections 223(d)(5)(A) and 1614(a)(3)(H)(i) of the Act, 42 
USC 423(d)(5)(A) and 1382c(a)(3)(H)(i).
    \2\ 20 CFR 404.1512(a) and 416.912(a).
    \3\ 20 CFR 404.935(a) and 416.1435(a).
    \4\ 81 FR 90987.
    \5\ 81 FR 45079, 45080 (2016).
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    A representative's duty to submit evidence is derivative of the 
claimant's; \6\ however, representatives must also follow our rules of 
conduct and standards of responsibility for representatives.\7\ Those 
rules impose an affirmative duty on a representative to act with 
reasonable promptness to help obtain the information or evidence that 
the claimant must submit and forward the information or evidence to us 
as soon as practicable.\8\ A representative also has an affirmative 
duty to assist a claimant in complying, as soon as practicable, with 
our requests for information or evidence.\9\
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    \6\ 20 CFR 404.1710(a) and 416.1510(a).
    \7\ 20 CFR 404.1740 and 416.1540.
    \8\ 20 CFR 404.1740(b)(1) and 416.1540(b)(1).
    \9\ 20 CFR 404.1740(b)(2) and 416.1540(b)(2).
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    This Ruling explains the requirement to submit or inform us about 
evidence and clarifies who has the final

[[Page 46340]]

responsibility to obtain written evidence.

Policy Interpretation

1. Statutory Provisions

    In general, an individual has a statutory obligation to provide us 
with evidence to prove to us that he or she is disabled or blind. The 
Act also precludes us from finding that an individual is disabled or 
blind unless he or she submits such evidence to us.\10\
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    \10\ See sections 223(d)(5)(A) and 1614(a)(3)(H)(i) of the Act, 
42 USC 423(d)(5)(A) and 1382c(a)(3)(H)(i); 20 CFR 404.1512(a)(1) and 
416.912(a)(1).
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    The Act also provides that we ``shall consider all evidence 
available in [an] individual's case record, and shall develop a 
complete medical history of at least the preceding twelve months for 
any case in which a determination is made that the individual is not 
under a disability.'' \11\ In addition, when we make any determination, 
the Act requires us to ``make every reasonable effort to obtain from 
the individual's treating physician (or other treating health care 
provider) all medical evidence, including diagnostic tests, necessary 
in order to properly make such determination, prior to evaluating 
medical evidence obtained from any other source on a consultative 
basis.'' \12\
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    \11\ Sections 223(d)(5)(B) and 1614(a)(3)(H)(i) of the Act, 42 
USC 423(d)(5)(B) and 1382c(a)(3)(H)(i).
    \12\ Id.
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    Thus, although a claimant has the primary responsibility to submit 
evidence related to his or her disability or blindness claim, the Act 
also gives us a role in developing evidence. Our statutory 
responsibilities to ensure that we develop a complete 12-month medical 
history when we make a determination about whether an individual is 
under a disability, and to make every reasonable effort to obtain from 
a claimant's treating source all medical evidence that we need to make 
a determination before we evaluate medical evidence from a consultative 
examiner, does not, however, reduce the claimant's responsibilities in 
any way.

2. An Individual's Affirmative Duty To Provide Written Evidence

    Our regulations require an individual to submit or inform us about 
all evidence known to him or her that relates to whether or not he or 
she is disabled or blind.\13\ This duty is ongoing and requires an 
individual to disclose any additional evidence about which he or she 
becomes 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 (ALJ) hearing decision.\14\
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    \13\ 20 CFR 404.1512(a)(1) and 416.912(a)(1).
    \14\ 20 CFR 404.1512(a)(1) and 416.912(a)(1).
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    Generally, individuals must submit or inform us about any written 
evidence no later than 5 business days prior to the date of the 
scheduled hearing before an ALJ.\15\ The ALJ may decline to consider or 
obtain any evidence if disclosure takes place after this date, unless 
certain circumstances outlined in the regulations apply.\16\
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    \15\ 20 CFR 404.935 and 416.1435.
    \16\ 20 CFR 404.935(b) and 416.1425(b). However, for age-18 
redetermination and continuing-disability review cases under title 
XVI of the Act, the requirement to submit or inform us about 
evidence no later than 5 business days before a scheduled hearing 
does not apply if our other rules allow the claimant to submit 
evidence after the date of an ALJ decision. See 20 CFR 416.1435(c) 
and 416.1470(b).
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    We expect individuals to exercise their reasonable good faith 
judgment about what evidence ``relates'' to their disability 
claims.\17\ Evidence that may relate to whether or not a claimant is 
blind or disabled includes objective medical evidence, medical opinion 
evidence, other medical evidence, and evidence from nonmedical 
sources.\18\
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    \17\ 80 FR 14828, 14829 (March 20, 2015).
    \18\ 20 CFR 404.1513(a) and 416.913(a). However, evidence 
generally does not include confidential communications between the 
individual and his or her representative about providing or 
obtaining legal advice, and it does not include a representative's 
written analyses of the claim. 20 CFR 404.1513(b) and 416.913(b).
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    To satisfy the claimant's obligation under the regulations to 
``inform'' us about written evidence, he or she must provide 
information specific enough to identify the evidence (source, location, 
and dates of treatment) and show that the evidence relates to the 
individual's medical condition, work activity, job history, medical 
treatment, or other issues relevant to whether or not the individual is 
disabled or blind. If the individual does not provide us with 
information specific enough to allow us to identify the written 
evidence and understand how it relates to whether or not the individual 
is disabled or blind, the individual has not informed us about evidence 
within the meaning of 20 CFR 404.935, 404.1512, 416.912 or 416.1435, 
and we will not request that evidence.

3. A Representative's Affirmative Duty To Assist in Developing Written 
Evidence

    Our regulations require appointed representatives to assist 
claimants in complying fully with their responsibilities under the Act 
and our regulations. All representatives must faithfully execute their 
duties as agents and fiduciaries of claimants. In that regard, 
representatives must assist claimants in satisfying the claimants' 
duties regarding the submission of evidence and in complying with our 
requests for information or evidence as outlined in the prior 
section.\19\
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    \19\ See 20 CFR 404.1740(b)(1), (b)(2) and 416.1540(b)(1), 
(b)(2).
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    In addition to these responsibilities, a representative has an 
affirmative duty to provide competent assistance to the claimant, 
including acting with reasonable promptness to help obtain information 
or evidence the claimant must submit.\20\ To fulfill his or her 
affirmative duties under our rules, the representative must forward 
this information or evidence to us and must assist the claimant in 
complying with our requests for information or evidence as soon as 
practicable.\21\ In addition, under our rules of conduct, the 
representative is prohibited from, through his or her own actions or 
omissions, unreasonably delaying or causing to be delayed, without good 
cause, the processing of a claim at any stage of the administrative 
decisionmaking process.\22\ Representatives are also prohibited from 
engaging in actions or behavior prejudicial to the fair and orderly 
conduct of administrative proceedings.\23\ A representative's failure 
to comply with his or her affirmative duties (or his or her engagement 
in prohibited actions) could result in disciplinary action.
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    \20\ See 20 CFR 404.1740(b)(3) and 416.1540(b)(3).
    \21\ 20 CFR 404.1740(b)(1), (b)(2) and 416.1540(b)(1), (b)(2).
    \22\ 20 CFR 404.1740(c)(4) and 416.1540(c)(4).
    \23\ 20 CFR 404.1740(c)(7) and 416.1540(c)(7).
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    While our regulations state that a claimant must submit or inform 
us of all written evidence at least 5 business days prior to a hearing, 
our rules of conduct place additional requirements on representatives. 
As discussed above, under the rules of conduct, representatives are: 
(1) Required to act with reasonable promptness to help obtain 
information or evidence the claimant must submit; (2) required to 
assist the claimant in complying with our requests for information or 
evidence as soon as practicable; (3) prohibited from unreasonably 
delaying or causing a delay of the processing of a claim without good 
cause; and (4) prohibited from actions or behavior prejudicial to the 
fair and orderly conduct of administrative proceedings. Therefore, we 
expect representatives to submit or inform us about written evidence as 
soon as they obtain or become aware of it. Representatives should not 
wait until 5 business days before the hearing to

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submit or inform us about written evidence unless they have compelling 
reasons for the delay (e.g., it was impractical to submit the evidence 
earlier because it was difficult to obtain or the representative was 
not aware of the evidence at an earlier date). In addition, it is only 
acceptable for a representative to inform us about evidence without 
submitting it if the representative shows that, despite good faith 
efforts, he or she could not obtain the evidence. Simply informing us 
of the existence of evidence without providing it or waiting until 5 
days before a hearing to inform us about or provide evidence when it 
was otherwise available, may cause unreasonable delay to the processing 
of the claim, without good cause, and may be prejudicial to the fair 
and orderly conduct of our administrative proceedings. As such, this 
behavior could be found to violate our rules of conduct and could lead 
to sanction proceedings against the representative.
    Pursuant to the Act, we may, after due notice and opportunity for 
hearing, suspend or prohibit from further practice before the 
Commissioner a representative who refuses to comply with our rules and 
regulations or who violates any provision for which a penalty is 
prescribed.\24\
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    \24\ 42 USC 406(a)(1). See also 20 CFR 404.1745 and 416.1545 
(``When we have evidence that a representative . . . has violated 
the rules governing dealings with us, we may begin proceedings to 
suspend or disqualify that individual from acting in a 
representational capacity before us.'')
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    We will evaluate each circumstance on a case-by-case basis to 
determine whether to refer a possible violation of our rules to our 
Office of the General Counsel (OGC). For example, in accordance with 
the regulatory interpretation discussed above, we may refer a possible 
violation of rules to OGC when:
    <bullet> A representative informs us about written evidence but 
refuses, without good cause, to make good faith efforts to obtain and 
timely submit the evidence;
    <bullet> a representative informs us about evidence that relates to 
a claim instead of acting with reasonable promptness to help obtain and 
timely submit the evidence to us;
    <bullet> the representative waits until 5 days before a hearing to 
provide or inform us of evidence when the evidence was known to the 
representative or available to provide to us at an earlier date;
    <bullet> the clients of a particular representative have a pattern 
of informing us about written evidence instead of making good-faith 
efforts to obtain and timely submit the evidence; or
    <bullet> any other occasion when a representative's actions with 
regard to the submission of evidence may violate our rules for 
representatives.
    When we refer a possible violation to OGC, it does not change our 
duties with respect to the development of the evidence.\25\
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    \25\ See 20 CFR 404.935 and 416.1435.
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4. Our Duty To Assist Claimants in Developing Written Evidence

    Before we make a determination that an individual is not disabled, 
we must develop the individual's complete medical history, generally 
for at least 12 months preceding the month in which he or she applied 
for benefits.\26\ We will make every reasonable effort to help 
individuals obtain medical evidence from their own medical sources and 
entities that maintain medical evidence when the individual gives us 
permission to request the information.\27\ Every reasonable effort 
means that we will make an initial request for evidence from the 
medical source or entity that maintains the medical evidence, and, at 
any time between 10 and 20 calendar days after the initial request, if 
the evidence has not been received, we will make a follow-up request to 
obtain the medical evidence necessary to make a determination.\28\
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    \26\ Sections 223(d)(5)(B) and 1614(a)(3)(H)(i) of the Act, 42 
USC 423(d)(5)(B) and 1382c(a)(3)(H)(i); 20 CFR 404.1512(b) and 
416.912(b).
    \27\ 20 CFR 404.1512(b)(1) and 416.912(b)(1).
    \28\ 20 CFR 404.1512(b)(1)(i), 404.1593(b), 416.912(b)(1)(i), 
and 416.993(b).
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    We will assist with developing the record and may request existing 
evidence directly from a medical source or entity that maintains the 
evidence if:
    <bullet> We were informed about the evidence (in the manner 
explained above) no later than 5 business days before the date of the 
scheduled hearing; or
    <bullet> we were not informed about the evidence at least 5 
business days before the date of the scheduled hearing, but one of the 
circumstances listed in 20 CFR 404.935(b) or 416.1535(b) applies.
    We will first ask the individual or representative to submit the 
evidence. However, if the individual or representative shows that he or 
she is unable to obtain the evidence despite good faith efforts or for 
reasons beyond his or her control, we may request the evidence directly 
from the medical source or entity that maintains the evidence.
    At the Appeals Council level of review, development of evidence is 
more limited. The Appeals Council will not obtain or evaluate 
additional evidence when deciding whether to grant review unless:
    <bullet> One of the circumstances listed in 20 CFR 404.970(b) or 
416.1470(b) applies and the individual or his or her representative 
shows that the evidence is related to the period on or before the date 
of the hearing level decision; or
    <bullet> the claim is a title XVI claim that is not based on an 
application for benefits (e.g., an age-18 redetermination).

[FR Doc. 2017-21252 Filed 10-3-17; 8:45 am]
 BILLING CODE 4191-02-P