One of my colleagues in the fight to help disabled individuals get their Social Security disability benefits, attorney Johnathon Ginsberg, tackles whether you have to submit unfavorable medical evidence to Social Security.
I see this frequently in cases where there was a workers’ compensation case. “Company doctors” often minimize symptoms and generate records indicating that a claimant has the capacity to return to work. Other times I see unhelpful records in cases where my client just did not “click” with his or her physician or psychiatrist.
…
I do not believe that a claimant or a claimants attorney has any obligation to submit unhelpful medical records. This issue periodically comes up on listservs that go to claimants lawyers and the general consensus among most attorneys seems to be that an attorneys obligation is to represent his clients zealously, meaning that there is no affirmative burden for that lawyer to submit unhelpful information. I do know some lawyers, however, who take the opposite position, but it appears to me that they are in the minority.
Even Social Security judges encourage attorneys not to submit every scrap of paper when representing a claimant on a Social Security case. I have attended continuing legal education programs where administrative law judges suggest that attorneys do not submit evidence if it is not relevant.
But there is a crucial difference between not submitting irrelevant evidence, and not submitting unfavorable evidence.
If you are disabled because of a back problem, medical records discussing your asthma, mammogram studies, or toe fungus, are probably not relevant and will only clog up your Social Security file, and make it harder to find the relevant evidence.
However, holding back relevant, but unfavorable, evidence can get you into trouble. Attorneys have an ethical duty of candor to the tribunal, which basically means we have to be honest with the judge. Social Security cases are not adversarial proceedings: there is no attorney for Social Security on the other side to balance a claimant’s attorney’s “zealous advocacy.” It is just you, your attorney, and the judge working together to try to figure out whether you are disabled.
Beyond the ethical issues, the simple truth is you rarely have everything you need in a Social Security case. You may have all of the available evidence, but the doctor may be unwilling to fill out a statement of limitations, or you cannot afford to have an MRI, CT scan, or other tests done that would shed light on the case. There is almost always an element of interpolating a person’s limitations from the limited evidence available.
So what happens if the judge thinks the attorney is holding back on relevant evidence? The judge may be less likely to make a favorable inference about your disability.
But, how does it help my case if the attorney submits unfavorable evidence?
Believe me, I have seen it all: records which say that my client is faking, drug seeking, a malingerer, a liar. Things that I do not believe about my client and I did not want the judge to see. However, I will still submit those records to help my client’s case.
In law school, they teach the theory of, “embrace the thorns.” You cannot hide from bad evidence. Because if you try to, and the judge finds the evidence later, it becomes a “smoking gun.”
Present the unfavorable evidence outright and explain it.
If I submit the evidence that says that my client is a liar, I diffuse its power. I can explain it. I can explain the context in which that statement was made. And I can provide an argument why the judge should not accept the doctor’s opinion.
Let’s talk a little bit about what evidence may be relevant. This is not a simple question and there are no absolutes in this. Even when the records of a primary care provider are not strictly relevant, I usually submit all the primary’s records because Social Security expects if your condition is disabling, you will at least mention your disability to your primary care doctor. If your primary care doctor’s records have no discussion of your disability, that in itself may be relevant!
Of course, there are exceptions: a primary care provider may completely hand-off your pain management to a specialist. In that case, the fact that the primary care provider’s medical records make no mention of ongoing pain may not be relevant. It all depends on the individual circumstances of each case.
via Are Claimants Required to Submit Unhelpful Medical Records.
