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Changes in Evidentiary Standards

The Social Security Administration has issued a final rule replacing the term "material" evidence with all evidence that "relates" to a claim in §404.1512(a) and §416.912(a), supported by reasoning that they are removing the need for claimants to make a legal judgment. This is clearly a broader standard, considering that "the meaning of 'relates' is broad and includes anything that has a logical or causal connection" to the claim. 79 FR at 9665.

On its face, the change appears consistent with the general definitions of evidence under the Social Security Act. For example, §404.702 of Title II defines evidence as "any record, document, or signed statement that helps to show whether you are eligible for benefits or whether you are still entitled to benefits" (italicized for emphasis). Similarly, §416.912(b) of Title XVI defines evidence as "anything you or anyone else submits to us or that we obtain that relates to your claim" (italicized for emphasis). Again, the wording implies a broad standard that does not require any legal judgment, at least at the initial levels.

At the administrative law judge and Appeals Council levels, however, Social Security considers the findings made by the State agency as well as any additional evidence submitted (See §405.501; §416.912(8), §416.927(f)). Presumably, the final rule made effective last month would apply to all levels of the application process. However, §404.935 still requires claimants and representatives to submit all "material" evidence prior to a hearing before an administrative law judge, and the term "new and material evidence" is used at the Appeals Council in §404.970(b), §404.976(b), and §416.1470. Thus, there may still be a need to make a legal judgment as to what is considered "material" evidence.

The change of terms in §404.1512(a) and §416.912(a) may do more to confuse rather than clarify. This inconsistency in evidentiary standards could give rise to new arguments on appeal, or create need for further interpretive rules, policy statements, and other guidance documents to help the public understand how the rule applies and affects their interests.

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