TN 4 (02-90)
DI 33015.050 Adverse Effect
Since claimants generally review the claims folder before the hearing, the DDS is responsible for identifying adverse effect material. (See DI 29025.005 for DDS's action.)
If the claimant has a representative, the entire claims folder, including adverse effect material, may be disclosed to the representative and claimant in the representative's presence. (Personal information as to others cannot be shared with the claimant unless specifically authorized by the other individual.)
1. DHU staff actions
Alert the SHO to cases with an adverse effect flag. Also, alert SHO of potentially adverse material you identify during the review of the claims folder.
2. SHO's actions
Review the claims folder to determine the appropriate course of action. Remember as a general rule, any report used in making the disability determination must be disclosed to the claimant or representative.
Consider a phone contact prior to the hearing date and greet the representative to explain the situation when he/she arrives for claims folder review.
No Representative Appointed-General
Consider whether the report in question would be material to the disability determination.
Consider temporarily eliminating the report from the claims folder if the findings in the report duplicate others in the folder or if the report contains no objective or otherwise useful information. Eliminate reference(s) to the report, if any, from the Summary of Evidence and do not use the report in determining disability.
No Representative Appointed-Report Material
Decide that the material is not truly adverse and disclose it to the claimant. (The fact that a report is marked “Confidential” or “Not To Be Disclosed” does not necessarily mean that the information in the report would truly have an adverse effect. Some sources routinely stamp reports in this fashion.)
Contact the claimant and encourage the appointment of a representative.
Decide that the hearing should proceed, temporarily deleting the report and any references to it from the claims folder. (It may turn out that the claimant is already aware of the information in which case disclosure is clearly permissible.)
It Becomes Necessary To Use Report and Claimant Has Not Had Access To It
Assist in disclosure of the report to the claimant.
Grant a continuance of the hearing and attempt to have the claimant obtain a representative.
Return the case to the development unit and suggest recontacting the physician or other appropriate action.
Document the DHU and claims folders when the options in c.-e. above are used.
NOTE: SSA cannot ultimately refuse disclosure after all other options have failed.
DI 33010.001B.3.a. and GN 03340.035 contain discussions of adverse effect.