The Wall Street Journal, reports on six changes to the disability program. If true, a few of these would be welcomed by everyone. In particular, I think that the SSA could increase the disclosure requirements of representatives at hearing. Attorneys have clear ethical obligations to disclose all evidence that could be considered material to the ALJ’s determination. If I as an attorney fail to disclose evidence to the ALJ, it could result in disciplinary action by the State Bar. However, Social Security allows for “non-attorney representatives” to provide representation as well. These non-attorneys are not subject to the sort of oversight that attorneys are. I personally know of two representatives in my area that have destroyed unfavorable evidence rather than turn it over to the Judge. Allowing non-attorneys to get away with such practices is bad for the SSA, and most of the attorneys I know would welcome these reps having to play by the same rules they do.
More troubling is the reporting that the SSA has tasked the inspector general to determine whether third-parties (doctors and lawyers) are facilitating fraud. This is clearly a political response to the recent prosecutions of 75 claimants and doctors in Puerto Rico who conspired to defraud the Social Security Administration. Again, a non-attorney representative and former SSA employee conspired with doctors to fabricate medical records. What was done by these individuals was clearly indefensible, and they were rightly prosecuted. However, I am concerned about why a politicized investigative committee is really needed. It seems that if not monitored, this kind of investigative atmosphere could significantly discourage people from cooperating with disability claims. In particular, I worry about doctors who complete paperwork for attorneys, claimants and the SSA itself. It is difficult as it is to get treating doctors to complete medical source statements. I am concerned that if doctors fear they face potential prosecution by an overzealous or politically motivated attorney, they will simply refuse to help all of their patients with disability claims.
It is no great surprise to those of us who have watched a ALJ’s become more and more selective in their disability awards.