More Than You Ever Wanted to Know on Excluding Admissibility of Social Security Administration Findings of Disability From Tort Claim

I am about to present you with WAY MORE  than you may ever want to read, but a very thorough argument to prevent the introduction of evidence in liability lawsuit of the SSA determination of a plaintiff's disability.

Over the years, I have regularly seen plaintiffs make a claim for disability while their tort claim is pending. Perhaps with the SSA threatening subrogation for reimbursement of SSDI benefits, plaintiffs are less likely to make these claims while a tort claim is pending, but this article addresses how to keep that information from being admitted in the liability claim.

It is very common for person claiming a brain injury from a trucking accident to make a disability claim, but I have also seen SSDI disability claims for back injuries. In every case I have been involved, the plaintiff has had a pre-existing condition or unrelated emotional/mental problems that he/she attempts to relate to the trucking accident. They WANT their disability determination to be admissible in the liability claim.

I keep it OUT! Here's how I do it. I welcome your insight.

The Louisiana Supreme Court has  long maintained the position that Social Security Administration  records, factual findings, and judgments are inadmissible hearsay. Green v. Connor, 644 So.2d 618 (La. 1994).

In Green a plaintiff who was injured in a motor vehicle accident brought an action against his UM carrier, State Farm. The plaintiff also filed a claim for social security benefits. After State Farm requested and received the records of the social security proceedings, the plaintiff filed a motion in limine to exclude the records from evidence. The defense argued that the records were admissible under the "business records" hearsay exception of La. Code Evid. art. 803(6) and the "records of a public agency" hearsay exception at La. Code Evid. art. 803(8)(a)(iii).

Art. 803(8)(a)(iii) of the Louisiana Code of Evidence excepts from the hearsay rule records of a public agency setting forth "[f]actual findings resulting from an investigation made pursuant to authority granted by law." However, La. Code Evid. art. 803(8)(b)(iv) excludes "[f]actual findings resulting from investigation of a particular complaint, case, or incident, including an investigation into the facts and circumstances on which the present proceeding is based" from the "records of a public agency" hearsay exception.

Pointing to art. 803(8)(b)(iv), the Supreme Court in Green held that the plaintiff’s SSA records did not fall within the "records of a public agency" hearsay exception. The Court reasoned:

[W]hile factual findings of general investigations are admissible, those of particular incidents are not admissible as public records. The social security proceedings involved the same incident as the present case, and all factual findings which resulted are therefore inadmissible under La.Code Evid. art. 803(8)(a).

The Green Court also rejected the  contention that the SSA records were admissible under the "business records" exception. The Court correctly held that "the ‘business records’ exception of La.Code Evid. art. 803(6) expressly bars the use of records falling under the La.Code Evid. art. 803(8)(b) exclusions[,]" such as art. 803(8)(b)(iv) discussed above. The Court ruled that all transcripts and judgments from the SSA proceedings were inadmissible and also prohibited any testimony regarding the factual findings of the SSA.

Pursuant to the holding and reasoning of the Supreme Court in Green, courts in Louisiana should order that  SSA records, factual findings, determinations, and judgments are inadmissible hearsay, not admissible under either the "business records" exception of La. Code Evid. art. 803(6) or the "records of a public agency" exception at La. Code Evid. art. 803(8)(a)(iii).

Although Green’s holding is limited to the "business records" and "records of a public agency" exceptions, there is no other exception or exclusion from the hearsay rule that would permit SSA records to be admitted or permit witnesses to reference them in their testimony.

The Fourth Circuit opinion of Gilchrist v. Ozone Spring Water Co., 639 So.2d 489 (La. App. 4th Cir. 1994), affirmed the trial court decision that permitted social security records to be introduced as evidence of a plaintiff's prior disability under the "then existing physical or mental condition" exception to the hearsay rule. However, Gilchrist should be limited. Furthermore, subsequent criticism of its holding suggests that it probably would have been reversed, had the case been appealed to the Supreme Court.

The plaintiff in Gilchrist was injured when he fell from a staircase. Because the plaintiff had been on social security disability prior to the accident, causation was a critical issue in the case. At the conclusion of the bench trial, the trial judge chose not to enter a judgment until he had the chance to review the plaintiff's medical and social security records. The social security records contained information regarding the plaintiff’s physical condition prior to the accident. When the judge ruled that the plaintiff was comparatively at fault, the plaintiff appealed. One of the plaintiff’s contentions was that his social security records were improperly admitted as evidence.
The Fourth Circuit ruled that the SSA records were admissible under the "then existing physical or mental condition" exception to the hearsay rule, located at La. Code Evid. art. 803(3), which states:

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant's then existing condition or his future action. A statement of memory or belief, however, is not admissible to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's testament.

The authors of the Handbook on Louisiana Evidence Law, 2005, have criticized the Gilchrist holding. They correctly point out that La. Code Evid. art. 803(3) excepts from hearsay only evidence of a declarant’s then existing physical or mental condition that is located in admissible evidence. They write:

Out of court statements by third persons, even a judge, as to what the declarant said about this state of mind, physical condition, etc., would be subject to a valid hearsay objection unless the requirements of Article 805 relative to double hearsay are met. In Gilchrist...., it was held that statements by a Social Security administrative law judge (made several years previously), as to what plaintiff and his wife said about plaintiff’s then existing physical condition qualify under this exception. It seems to these Authors that the court was in error on this point.

Pugh, Force, Rault, & Triche, Handbook on Louisiana Evidence Law, 2005 ed., pp. 575-56.

Gilchrist was wrongly decided because the court failed to recognize that the SSA records were double hearsay and failed to properly follow La. Code Evid. art. 805. Nevertheless, Gilchrist is distinguishable because the records at issue therein apparently contained statements by the plaintiff regarding his physical and mental condition. When no such statements are at issue with regard to the SSA records  "then existing physical or mental condition" exception would not even apply.

Not only are the Plaintiff’s SSA records inadmissible under the hearsay rules, they must also be excluded because they are prejudicial pursuant to La. Code Evid. art 403. Any probative value of the SSA records is substantially outweighed by the profound risk of causing unfair prejudice, confusion of the issues, and misleading the jury.
 A jury will be called upon to evaluate the testimony of witnesses and competing experts to determine if a plaintiff  suffered a disability and loss of earning capacity. If the jury were to learn that the plaintiff  had already been determined "disabled" by the SSA, then it may be inclined to simply adopt the holding of the SSA rather than to appropriately evaluate the evidence.

SSA does not apply the same standards to determine "disability" as does a civil court in a personal injury case. The SSA Regulations define "disability" as "the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §404.1505(a) and 20 C.F.R. §416.905(a).

Additionally, the Regulations require the Social Security Administration to consider the combined effect of all a person’s impairments, without regard to whether any particular impairment, if considered separately, would be of sufficient severity to qualify alone for benefits. See id. at §404.1523 and §416.923. Thus, the SSA’s "disability" determination does not consider causation, but rather the totality of the person’s condition. If this Court permits the Plaintiff to introduce the SSA’s findings of fact, determinations, and judgments, then there will be a profound risk that the jury will substitute the factual findings of the SSA for its own factual findings, without adequately considering the testimony of the witnesses and the issues regarding causation.

In addition to misleading the jury, the SSA findings are prejudicial because federal law significantly impedes the Defendants from performing discovery regarding the basis of the SSA determination. In particular, the "Touhy Regulations" of the Social Security Administration, located at 20 C.F.R. §§403.120 - 403.150, give the Social Security Administration complete control over the extent to which it will permit discovery and trial testimony of its employees and the scope of the testimony permitted.

For purposes of the "Touhy Regulations" of the SSA, an employee includes all consultants hired by the SSA, including all medical and vocational experts. 20 C.F.R. §§403.110. Thus, federal law hinders the ability of the Defendants to cross-examine the SSA consultants who contributed to its findings or to present the jury all of the information underlying the findings.

At trial, the jury will be called upon to scrutinize the findings of a plaintiff's psychologist; determine whether the plaintiff's  alleged mental limitations were caused by the motor vehicle accident; and determine whether the plaintiff is disabled as a result. These are critical fact issues for the jury to decipher. This Court must not permit the Plaintiff to confuse and mislead the jury by admitting the records, findings, determinations and judgments of the SSA.