Evidence in a Long-Term Disability Claim
In a long-term disability claim, the "evidence" that you can or should submit to the insurance carrier and ultimately to the judge, if a hearing or a trial are required, is critical to the success or failure of your claim.
What that "evidence" is, will depend on whether you have a disability claim under Social Security (SSDI) or a claim under an employer-based disability insurance plan (ERISA).
"Evidence" in a Social Security (SSDI) Claim
To begin with, since 2015, when the "all evidence" rule went into effect, all evidence that "relates" to a disability claim, favorable and unfavorable, must be submitted to Social Security. Claimants and their attorneys cannot cherry-pick the medical records and only submit favorable evidence in an SSDI claim. "Unfavorable" evidence cannot be withheld.
The Social Security Administration (SSA) has provided the following guidelines as to what the necessary and proper evidence should be in an SSDI claim.
The SSA guidelines state that each person who files a disability claim is responsible for providing medical evidence showing he or she has an impairment(s) and the severity of the impairment(s). However, the Social Security Administration (SSA), with the claimant's permission, will help the claimant get medical evidence from his or her own medical sources who have evaluated, examined, or treated the claimant for his or her impairment(s).
SSA also requests copies of medical evidence from hospitals, clinics, or other health facilities when appropriate. Claimants who provide SSA with timely, accurate, and complete information and evidence can help accelerate the processing of their claims.
By law, SSA needs specific medical evidence to establish that a claimant has an impairment. SSA regulations require "objective medical evidence" from an "acceptable medical source" to establish that a claimant has a medically determinable impairment. The regulations define these terms.
The SSA further advises that in developing evidence of the effects of symptoms, such as pain, shortness of breath, or fatigue, on a claimant's ability to function, SSA investigates all avenues presented that relate to the complaints. These include evidence about the claimant's daily activities, the location, duration, frequency, and intensity of the pain or other symptom, precipitating and aggravating factors, the type, dosage, effectiveness, and side effects of any medication, other treatments for the relief of pain or other symptoms, any measures the claimant uses or has used to relieve pain or other symptoms, and other factors concerning the claimant's functional limitations due to pain or other symptoms.
Once the existence of an impairment is established, SSA considers all evidence from all medical and non-medical sources to assess the extent to which a claimant's impairment(s) affects his or her ability to function in a work setting; or in the case of a child, the ability to function compared to that of children the same age who do not have impairments. Non-medical sources include, but are not limited to: the claimant, educational personnel, public and private social welfare agency personnel, family members, caregivers, friends, neighbors, employers, and clergy.
Medical literature, information from the Physician's Desk Reference ("PDR"), newspaper or magazine articles, and other relevant information that is not part of the medical records, cannot be submitted directly to the SSA. However, that information can come to the attention of the SSA if it is sent to a treating doctor and that doctor incorporates it as part of the patient/claimant's medical record.
"Evidence" in a Long-Term Disability (ERISA) Claim
The "evidence" submitted to the insurance carrier to support a long-term disability claim (ERISA) is called the "administrative record." It represents all the medical evidence, in its entirety, from doctors, hospitals, and other medical providers, that the insurer has received during the "administrative period," up to the final administrative claim denial.
After that, the administrative record is considered closed, and with only certain exceptions, no additional medical information may be submitted.
If filing a lawsuit in federal court to challenge a final administrative denial of your disability claim by the carrier is required, the judge will consider only the evidence in the administrative record, and (except for unusual circumstances) no other evidence.
Therefore, it is important to make certain that all the relevant medical evidence is in your administrative file, that it is up to date, and that it has been received by the insurance carrier by the date of the final administrative denial.
Medical literature, information from the Physician's Desk Reference ("PDR"), newspaper or magazine articles, or other relevant information that is not part of the medical records, can be submitted directly to the insurance carrier, as long as it is submitted before the date of the final administrative denial.
It is important to note that this is different from SSDI. With ERISA cases, we have taken advantage of this rule to submit medical journal articles supporting our client's disability claim directly to the insurer, and such submissions proved extremely important in overturning a disability claim denial at the administrative level.