The Social Security Administration’s (SSA’s) Five-Day Rule Regarding Submission of Evidence Prior to Hearing

 

In 2017 the Social Security Administration (SSA) changed its rules regarding the submission of evidence to an administrative law judge before a Social Security Disability hearing. Under the new rules, which are codified at Section 405.331 of the Social Security Act, you must submit any written evidence, including medical records and reports, no later than 5 business days before the date of the scheduled hearing. If you fail to do so, the administrative law judge may refuse to allow the written document into evidence. If the document is excluded from evidence, then it will not be considered by the judge. This can make it more difficult to prove that you’re disabled.

 

There are three exceptions to this rule:

 

  • If the SSA’s action misled you, then the administrative law judge may accept evidence that is submitted less than five days before hearing. For example, if a SSA representative told you that the medical records had been requested by the SSA but they were not, then you may have good cause for submitting those medical records within five days of the date of the hearing.

 

  • You have a physical, mental, or educational limitation that prevents you from submitting the evidence earlier. If your claim is based on intellectual disability or you have a difficult time getting to the post office or your mailbox because of your physical impairments, then the SSA may find good cause to accept evidence submitted late.

 

  • Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from obtaining and submitting the evidence earlier.

 

Why We Think the SSA’s Five-Day Rule Is a Bad Thing for Disability Claimants

 

Now that the SSA’s five-day rule regarding submission of evidence has been in effect for a few months, we’ve been able to see firsthand how it affects claims and disabled adults who badly need and deserve Social Security benefits. Below is a list of three problems we’ve discovered with the five-day rule and why we think the SSA should repeal it.

 

1. The SSA Has Not Given Disability Attorneys the Power to Subpoena Medical Records

 

In addition to representing disabled adults in claims for SSDI benefits and Supplemental Security Income, I’m also a workers compensation attorney. Under the Rules of the Virginia Workers’ Compensation Commission and the Virginia Workers’ Compensation Act, I have the power to subpoena medical records from health care providers. If the health care provider refuses to comply with the subpoena in a timely manner, then I can file a motion to compel with the Virginia Workers’ Compensation Commission. At that point the health care provider risks being sanctioned if it refuses to provide the medical records I request.

 

Because of the power of the attorney-issued subpoena, I have never had a problem obtaining medical records in a timely manner for my workers’ compensation clients.

 

Unfortunately there is no such mechanism to obtain medical records under the Social Security Disability Act. Attorneys do not have the power to subpoena records from health care providers. Attorneys,therefore, must rely on health care providers to provide records in a timely manner. If the health care provider takes its time or doesn’t reply to the request for records, there are no consequences. The disability attorney and his client are out of luck.

 

Though the Social Security Act provides a mechanism to ask the administrative law judge to subpoena the records, we’ve had limited success using this law. In our experience many administrative law judges are reluctant to issues subpoenas for whatever reason.

 

I’ve spoken to many Social Security Disability representatives who are having the same problems. Health care providers are not responsive. And hours are being wasted by disability attorneys and their clients who are having to repeatedly contact the same health care providers over and over to get records.

 

The only way the 5-day rule will work is if the SSA gives disability attorneys the power to subpoena medical documents. Then – and only then- will an attorney have no excuse for a failure to obtain the records in time.

 

2. Medical Treatment is Often Continuing in Nature

 

It’s rare that I represent a disabled adult who has stopped treatment completely. Usually the only time my client has stopped treatment is when his or her health insurance has expired and the claimant has no means to obtain additional medical treatment.

 

So here’s a common example. My client has a doctor’s appointment on the 10th of the month and a Social Security disability hearing on the 20th of the month. We request the office visit note on the date of the appointment but don’t receive it until the day of the hearing or after.

 

Though we acted with due diligence in requesting the medical record, some administrative law judges will still exclude the office visit note from the most recent appointment. This is wrong. The judge should accept evidence submitted within five days of the date of the hearing if the office visit has taken place within 90 days of the date of the hearing. It takes a long time to obtain records from health care providers who are not subject to an attorney-issued subpoena.

 

3. Some ALJs Are Refusing to Do What the Law Requires Them to Do

 

C.F.R. 404.1512(d), entitled “Our Responsibility,” states what the SSA will do to develop the claimant’s complete medical history. It states: “Before we make a determination that you are not disabled, we will develop your complete medical history for at least the 12 months preceding the month in which you file your application … We will make every reasonable effort to help you get the medical reports from your own medical sources when you give us permission to request the reports.”

 

C.F.R. 404.1512(d)(1) defines the phrase “every reasonable effort.” It means that the SSA “will make an initial request for evidence from your medical source and, at any time between 10 and 20 calendar days after initial request, if the evidence has not been received, we will make one followup request to obtain the medical evidence necessary to make a determination.”

 

When it published the current version of C.F.R. 404.1512 on March 20, 2015, the SSA provided its response to public comments that it had received about the statute. One such response stated, “As we explained in the NPRM, under our current regulations, we assist claimants in developing the medical and non-medical evidence we need to determine disability throughout the administrative review process. Representatives (attorney and non-attorney) also assist in submitting evidence and in complying with our requests for evidence.” The SSA, therefore, is responsible for helping to develop a claimant’s medical history even when that claimant is represented by counsel.

 

HALLEX I-2-6-56 clarifies the role of an administrative law judge (ALJ)

 

in helping to develop a claimant’s complete medical history. The applicable provision states:

 

… The regulations provides that the ALJ will look fully into the issues, question the claimant and other witnesses, and accept as evidence any documents that are material to the issues. [citation omitted].

 

An ALJ has a duty to ensure that the administrative record is fully and fairly developed. See 20 CFR 404.1512(b) and 416.912(b). An ALJ will make reasonable attempts to obtain evidence pertinent to the matters at issue. Instructions for developing specific issues are set forth throughout the Hearings, Appeals and Litigation Law (HALLEX) manual I-2-5.

 

Hearing office (HO) staff will document any attempts to develop the record and associate the documentation with the claim(s) file … In order to demonstrate the ALJ fulfilled his or her duty under 20 CFR 404.1512 and 416.912, HO staff will mark as proposed exhibits all documentation showing attempts to obtain the evidence.

 

At the hearing level “a claimant must generally inform SSA about or submit evidence, as required in 20 CFR 404.1512 and 416.912 no later than five business days before the date of the scheduled hearing. If the claimant informs SSA about or submits evidence less than five business days before the scheduled hearing, at, or after the hearing, the administrative law judge (ALJ) may decline to obtain or consider the evidence …” HALLEX I-2-5-13.

 

It follows, therefore, that if a claimant informs the SSA about evidence more than five business days before the date of the scheduled hearing then the SSA should make all reasonable efforts to obtain that evidence. And that is what HALLEX I-2-5-13 provides when it states, “Subject to these rules, when a claimant informs SSA about evidence, we will make necessary attempts, as referenced in this section, to obtain the evidence.” Id.

 

Unfortunately not all administrative law judges are complying with the provisions stating that evidence may be accepted less than five days before hearing, or even after hearing, so long as the SSA has been informed of the evidence. We believe the law is clear that they should.

 

Do you think the SSA’s 5-Day Rule is working? Let us know.

 

Corey Pollard is a Richmond disability attorney and Virginia Beach Social Security disability lawyer. Contact us today if you have any questions or comments.

 

 

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