E.Availability and Disclosure of Confidential Records

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(Public Law 93-579; 5 U.S.C. § 552a; 20

CFR §§ 401.30–401.200.) Your authorized

representative is someone you appoint in

writing to pursue your rights under the Social

Security Act. You can name any responsible

person, including a family member, as your

authorized representative.

This right means that you can request to

see the medical and other evidence used to

evaluate your application for SSDI or SSI

benefits. Make this request in writing to

the SSA Field Office handling your claim

(see below for more details on the SSA

procedure for releasing records). Medical

records include:

• records kept by physicians or other

health professionals

• records derived from reports by

physicians or other health professionals

• medical evaluations and

determinations on Social Security

forms, including rationales and

diagnoses, and

• records created by laypeople relevant

to your claim (such as statements by

witnesses who saw epileptic seizures or

signs of mental impairment).

This law concerns your own requests

to see your medical records. You cannot

directly access your child’s medical records.

Instead, you must name a physician or

another health professional (excluding

family members) to receive the records as a

designated representative.



The SSA will release your records to you

as long as the SSA doesn’t think they will

have an adverse effect on you. According

to the SSA, such an adverse effect is an

effect likely to occur if direct access by an

individual to his or her medical records is

expected to:

• disrupt a doctor-patient relationship

• interfere with the patient’s medical

management, or

• negatively affect the patient in some

other way.

Here are some of the SSA’s own examples

of adverse effect.

EXAMPLE 1: You have been diagnosed as



diabetic. The medical record indicates a

good prognosis with treatment involving

medication, diet, weight control, and

exercise. An adverse effect is not likely and

the SSA is likely to release the records.

EXAMPLE 2: You have a severe heart

impairment. The doctor has noted in the

medical record that your knowing the

severity of your condition could cause

complications. An adverse effect is likely and

the SSA is not likely to release the records.



EXAMPLE 3: A doctor has included very

candid remarks in the report that might

incite you to threaten the doctor. An

adverse effect is likely and the SSA is not

likely to release the records.







There is one exception: Direct disclosure

of medical information may be made to

you, upon request, in any case in which you

have requested a hearing or a review by the

Appeals Council.

The person at the SSA deciding whether

or not you should see your medical records

doesn’t have to be a doctor. Nondoctors

in SSA Field Offices can make that

determination, or they can refer your file

to doctors working for the SSA. If the SSA

thinks that releasing your medical records

will have an adverse effect on you, you

won’t be told. The SSA policy instruction

specifically states: “Do not tell an individual

that direct access of a medical record is

likely to have an adverse effect on him/her.”

Instead, you will be told that Privacy

Act regulations require that you designate

a representative to receive your records.

Ironic, isn’t it? Under the law that is

meant to protect your privacy, the SSA has

concluded that someone other than you

must get your records. You are not alone

in thinking this sounds paternalistic. Few

people know about this policy because few

people ask to see their medical records.

Until very recently, if you were forced to

have a designated representative, that person

could withhold any of your own records

from you indefinitely. However, based on

a federal court case against the SSA, your

representative must ultimately provide all of

your records to you. The SSA has not said,



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however, how long the representative has to

turn over the records to the claimant.



Sample Letter When SSA Wants

a Designated Representative

Dear [claimant]:

You asked for copies of medical records we

used in your [type of ] claim. We reviewed

the records. We decided that we must give

them to someone you choose who will

review and discuss the information with

you. Because this is medical information,

we prefer you choose a doctor or a health

worker.

Please give us the name and address

of the person you want to receive your

medical records. You may use the office

address shown above to send us this

information.

If you have any questions, you may call,

write, or visit any Social Security office. If

you call or visit our office, please have this

letter with you and ask for [name of SSA

representative]. The telephone number is

[xxx-xxx-xxxx].



If you receive a letter like the one above,

the SSA clearly thinks that your seeing your

records will have an adverse effect on you.

If you do not follow through by naming a

designated representative, the SSA will send

you a form letter like the one below.



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Sample Letter If You Don’t Give

a Designated Representative

Dear [claimant]:

We are writing to you about your request

for copies of medical records we used in

your [type of ] claim.

As we told you earlier, we require

that you choose someone to receive

your records. This person will review

the information and discuss it with you.

Because this is medical information, you

may wish to choose a doctor or a health

worker to review your records.

Since you have not yet chosen someone,

we want to give you some suggestions

about groups that might be able to

help. We have found that the following

groups are often willing to help people by

reviewing their records:

• local social services

• local public health services

• legal aid societies, and

• other public agencies.

When you give us the name and address

of the person you want to review your

medical records, we will make sure they get

the records. You may use the office address

shown above to send us this information.

If you have any questions, you may call,

write, or visit any Social Security office. If

you call or visit our office, please have this

letter with you and ask for [name of SSA

representative]. The telephone number is

[xxx-xxx-xxxx].



If you still don’t name a representative,

the SSA will mail your file to the SSA’s

central Office of Disability (OD) in

Baltimore. If this happens, you will have to

wait months for a response to any further

requests for your file.



2. Consultative Examination

(CE) Records

The SSA may require that you be examined

by a doctor or have laboratory tests done in

order to evaluate your claim for disability.

You must give permission for the SSA to

obtain your medical records from your

treating doctor and also for those records

to be released to a doctor who the SSA has

chosen to do a CE exam.

The SSA cannot release the results of your

CE exam to your treating doctor without

your consent. It is generally to your benefit

to have CE exams sent to your treating

doctor. These CE exams often involve

information your treating doctor doesn’t

have. Therefore, it is to your advantage to let

your treating doctor see it.

But the SSA doesn’t have to share the

findings of your CE exam with you,

except in life-threatening situations.

(See “Life-Threatening Situations,” in

Section C, above.) Most claimants don’t

ask CE doctors for personal copies of

their examinations or tests. If they do,

the CE doctor must contact the DDS for

permission to release the information.







3. Disclosure With Consent

Most disclosures by the SSA require your

consent. Consent must be in writing,

be signed by you or your authorized

representative, be dated, and specify what

information is to be disclosed. Specifically,

the SSA or DDS must obtain your consent

in order to:

• contact your treating sources for

information necessary to review your

claim

• release your records, particularly your

medical records, to the SSA, and

• disclose information about you to

any third party, such as physicians

and medical institutions, with the

exception of parties permitted under

disclosure without your consent. (See

Section E4, below.)

In most situations, any consent statement

you sign will include a revocation clause,

allowing you to take back your consent, or

else will be valid for only a specified time.



4. Disclosure Without Consent

Under the U.S. Privacy Act, the SSA can

disclose your records without your consent

for certain purposes. The SSA must keep a

record of all such disclosures. Permissible

reasons for disclosure without consent

include the following:

• sharing information within an SSA

agency on a need-to-know basis

• complying with the Freedom of

Information Act (FOIA)



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• for a routine use (a purpose compatible

with the reason the information

was collected, such as disability

determination)

• assisting the Census Bureau in plan­

ning or carrying out a census, survey,

or related activity

• for research and statistical purposes

• transferring records to the National

Archives of the United States when its

historical or other value warrants its

continued preservation

• cooperating with another government

agency’s civil or criminal law enforce­

ment activity

• helping someone whose health and

safety is affected by compelling circum­

stances (after notice of disclosure is

sent to you)

• informing the House of Representatives

or the Senate, to the extent necessary,

on a matter within its jurisdiction

• cooperating with the Comptroller

General while performing duties of the

General Accounting Office, or

• a court order.

More specific examples of disclosures that

are covered under the above list include the

following:

• information to your representative

payee (the person designated to

receive your payments) or authorized

representative to pursue a Social

Security claim or to receive and

account for payments



84  |  NOLO’S GUIDE TO SOCIAL SECURITY DISABILITY



• medical information to your designated

representative

• payment information to the IRS

to conduct an audit, collect Social

Security taxes, or investigate a tax

crime

• information to the Department of

Justice (DOJ) or U.S. Postal Service for

law enforcement purposes, or

• nontax return information (and

usually nonmedical information) to

the president, individual members of

Congress, and their staffs if necessary

to answer inquiries from you or your

authorized representative.

Finally, if the SSA sends your records to

someone without your consent, the SSA

does not have to inform you of that action.



of the United States, with the intent

to elicit information regarding another

person’s date of birth, employment,

wages, or benefits.

Freedom of Information Act (FOIA). The

FOIA provides that agency officials found

to have arbitrarily and capriciously with­

held disclosable records may be subject

to disciplinary action recommended by

the Special Counsel to the Merit Systems

Protection Board.

Privacy Act (PA). You can sue the SSA in

a U.S. District Court for various reasons,

including:

• refusing to amend your Social Security

record

• refusing to let you (or another person

chosen by you) view your record and

obtain a copy of it

• failing to disclose that you dispute

5. Penalties for Violating

information in your record, or

Disclosure Laws

• failing to accurately maintain your

Your privacy rights are protected by a

record.

variety of federal statutes.

If the court determines that the SSA

Social Security Act. Under the Social

acted intentionally or willfully, it may assess

Security Act, the following violations are

against the United States the attorneys’ fees,

punishable as misdemeanors by a fine of up other litigation costs, and actual damages

to $1,000 and/or a year in prison:

you sustain. The court can award you at

• disclosure by an SSA employee of

least $1,000 in damages in such cases.

tax return information, files, records,

The SSA might be found guilty of a

reports, or other SSA papers or

misdemeanor, mostly due to the willful

documents, except as permitted by

disclosure of information in violation of the

regulation or federal law, or

PA. You cannot normally bring criminal

• misrepresentation by an individual who actions against an SSA employee unless

purports to be an employee or agent

you convince the Justice Department that







the employee “willfully and knowingly”

disclosed information. If convinced, the

DOJ may prosecute.

Finally, an SSA employee may be subject

to disciplinary action for knowing and

willful violations of the PA.

Internal Revenue Code (IRC). Under the

IRC, a federal employee who discloses

information found on a federal tax return

may be found guilty of a felony and fined

$5,000 and/or sentenced to five years

in prison. Furthermore, you can sue the

IRS and any person who knowingly or

negligently discloses federal tax returns or

return information.



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F. Fraud and Other Crimes



Both SSA personnel and DDS officers are

looking for fraud—for example, allegations

of disability that are not consistent with

other information and indications that an

individual may have been coached.

The SSA says fraud has occurred when

someone, with the intent to wrongfully

obtain a benefit, right, or credit, knowingly

makes a false statement, causes a false

statement to be made, willfully attempts to

conceal a material fact, or fails to disclose

a material fact. (§§ 208 and 1632 of the

Social Security Act.)

Claimants have been known to allege

Alcohol and Drug Abuse Patient Records.

impairments they do not have. Sometimes

Any person who violates the Drug Abuse

this is innocent. Sometimes it is not, such as

and Treatment Act or the Comprehensive

Alcohol Abuse and Alcoholism Prevention, when a person alleges a serious illness where

medical records show no such diagnosis.

Treatment, and Rehabilitation Act by

Some treating doctors lie about a person’s

disclosing such information may be fined

having a serious illness. Some doctors’

as much as $500 for a first offense and as

much as $5,000 for each subsequent offense. medical records show they know the

diagnoses given to the SSA are not valid.

The SSA rarely goes after treating

6. Reporting Possible Violations

doctors or claimants for fraud. This may be

If you suspect an SSA employee has violated because the SSA needs the goodwill of the

one of the above laws, report the incident to public and medical profession, or because

it is difficult to prove intentional lies. But

the employee’s supervisor or call the SSA’s

the SSA doesn’t ignore fraud. It ignores

Office of Inspector General (OIG) Hotline

statements it knows are false when making

at 800-269-0271; TTY 866-501-2101. You

the disability determination.

can also write to the SSA on the Internet

The SSA may identify fraud anywhere

at www.socialsecurity.gov/oig. Click

in the claims process. If the SSA identifies

“Reporting Fraud.”

fraud after determining that a person is

eligible for benefits, the SSA can reopen the



86  |  NOLO’S GUIDE TO SOCIAL SECURITY DISABILITY



file and redo the determination, ignoring

the false information.

It is a crime to do any of the following:

• furnish false information in connection

with your Social Security records or to

obtain someone else’s records

• use an SSN obtained through false

information

• use someone else’s SSN

• disclose or force the disclosure of or use

an SSN in violation of U.S. law

• forge or falsify SSA documents

• conspire over a false claim

• knowingly buy, sell, or alter an SSN

card, or

• process an SSN card or counterfeit an

SSN card.

Civil penalties can also be imposed for

fraud. In 2006, Public Law 108-203 was

amended to impose civil penalties (up to

$5,000 per occurrence) for not notifying

the SSA of changed circumstances that

affect eligibility or benefit amounts.

These penalties apply when a person or

organization knew or should have known

that a withheld fact could affect benefits

and that the failure to come forward was

misleading. For example, penalties would



apply if an individual who has a joint bank

account with a beneficiary continues to

receive the beneficiary’s Social Security

checks after the beneficiary’s death, or if an

individual receives benefits under one SSN

while working under another SSN.

Civil penalties may also apply for

engaging in the following activities:

• selling services to the public that are

available for no cost from SSA, unless

clearly disclosing that fact

• converting a beneficiary’s benefit to a

third party

• claiming that your services are

endorsed by the SSA, including the

misleading use of SSA symbols or

emblems, and

• marketing products or services using

certain prohibited words (such as

“Death Benefits Update,” “Federal

Benefit Information,” “Funeral

Expenses,” or “Final Supplemental

Program”).

You should be aware of these changes

because they are meant to protect the

public, including Social Security disability

beneficiaries.



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