What Is the Five-Day Rule in a Social Security Disability Hearing?
The Deadline Is Not What Most People Think It Is
The notice that Social Security sends with the date and time of your disability hearing has a deadline that is easy to miss: the five-day rule for evidence. Under this rule, you must inform Social Security about any written evidence regarding your medical treatment, education, or past work – or submit it directly – no later than five business days before your hearing date. 20 CFR § 404.935 for SSDI claims; 20 CFR § 416.1435 for SSI claims. Miss this deadline, and the Administrative Law Judge (ALJ) may refuse to consider or obtain this evidence.
Gathering medical reports, school records, tax documents, or payroll information is often time-consuming, and unresponsive medical providers or past employers make meeting the deadline challenging.
I run into these challenges often. Fortunately, a delay in obtaining your evidence does not mean the ALJ will ignore it. In fact, the federal regulations may prevent the judge from doing so if the evidence is material. That’s because you have two ways to satisfy the five-day rule for submitting written evidence to the ALJ hearing your disability claim, and only one of them requires you actually to have the records.
You Can Inform, or You Can Submit. They Are Not the Same Thing
The regulation says you must inform SSA about evidence or submit it at least five business days before the hearing. Informing and submitting are different. This difference matters when a doctor’s office has ignored your phone calls and letters for months and still hasn’t sent your medical reports.
If you submit the evidence on time, that’s great. You followed the rule, and the ALJ must consider and admit the documents if they are material.
If you tell Social Security on time – you send a letter to the hearing office explaining what evidence exists, who has it, and what it is – the rule protects you even though you do not have the evidence yet. Because Social Security wrote the requirement in the alternative, timely notice satisfies it on its own. You have not missed the deadline, so you do not reach the good-cause analysis that applies to late evidence. You do not have to show good cause or make an elaborate argument as to why the ALJ should allow the evidence into the record.
What you should ask for is that the judge holds the record open under 20 CFR § 404.944, which lets the ALJ receive new and material evidence any time before mailing the decision. A judge who ignores evidence you identified on time has not applied the five-day rule correctly and has violated the regulations by not developing the record.
This language – inform us – is the most useful thing in this rule. A letter or telephone call before the deadline, giving the SSA enough information to know what you are waiting for, ensures you can submit all of the evidence supporting your claim.
How My Firm Informs the SSA and Complies with the Five-Day Rule
I have a process in place to ensure we comply with the five-day rule in every Social Security disability case.
When we receive the hearing notice, we schedule a phone call with the claimant to review the records we have so far. Next, we compare the records we have with what the claimant tells us about additional or upcoming medical treatment. Finally, we send a letter to Social Security informing them of all evidence we do not have but are requesting. The details include the medical practice’s contact information and the dates of the treatment records requested. Sending the five-day letter well in advance makes the days before the disability hearing less hectic if we do not receive the paperwork in time.
What Counts as a Business Day
A business day is a weekday that is not a federal holiday. Program Operations Manual System (POMS) HA 01250.001, Note 3.
To determine the deadline for the five-day rule in your case, count backward from the hearing date. Do not count the hearing date itself.
Why the Five-Day Rule Is Harder on Disability Claimants Than It Seems
Five business days sounds reasonable. It isn’t. The rule asks disabled people to control a process that nobody has given them any power over. Three problems come up in nearly every case I handle.
Hospitals and clinics do not operate on legal deadlines.
The federal HIPAA Privacy Rule gives a health care provider 30 days to respond to a records request, and permits another 30-day extension. Large hospital systems, at least the ones I deal with in Virginia, outsource release-of-information to third-party vendors, which adds another layer and another wait. So a request sent the week the hearing notice arrives can legitimately come back two months later, through no fault of the person who sent it.
On top of that, the SSA does not give representatives subpoena power. I cannot compel a records department to move faster. I can call the provider daily – and sometimes I do – but the claimant gets penalized when the provider acts slowly. That is the unfair part of the rule: the deadline hurts the claimant, while the delay comes from the medical provider and another federal agency’s rules.
You are still sick, so the record keeps growing
Social Security must mail the hearing notice at least 75 days before the hearing. 20 CFR § 404.938. During those 75 days, a disability claimant is not sitting still waiting. They are going to appointments, refilling prescriptions, and sometimes, undergoing surgery. That is a major part of the claim – the need for medical care.
So new evidence that shows how you function at the time of the hearing keeps growing. An MRI ordered a month before the hearing may not be read until the week of the hearing. A new specialist may not see you until after the record closes. The rule treats evidence as a fixed pile to be assembled by a date certain. But it isn’t.
The people the rule burdens most are the ones least able to carry it
People going in front of these ALJs have trouble walking, driving, thinking, and remembering. Many live in constant pain. And some have a history of special education and learning disabilities. Tracking all their providers and keeping up with federal deadlines are tasks the underlying impairments themselves make difficult.
None of these criticisms make the rule go away. But they do explain why you should send the five-day letter to the SSA the week you receive the hearing notice, instead of the week of.
If You Miss the Deadline
Missing the deadline does not automatically mean the evidence is out. The regulation states that the judge may decline to consider or obtain it. Whether the judge does depends on whether one of the good-cause circumstances applies.
The regulation lists these:
- The SSA did something to mislead you.
- Your physical, mental, educational, or language limitations prevented you from informing the SSA about the evidence or submitting it earlier. For example, if you seek disability based on a traumatic brain injury (TBI) that resulted in concentration and memory problems, these cognitive deficits could serve as the basis for keeping the record open.
- Something unusual, unexpected, or unavoidable, such as a death in the family or an illness, prevented you from contacting the SSA.
- You were diligent in your efforts to obtain the evidence, but did not get it before the deadline. My firm’s preemptive five-day letter to the SSA, identifying the records we are requesting, is meant to document our diligence. As I’ve explained to many administrative law judges, the SSA does not grant attorneys subpoena power. Therefore, claimants and their representatives have little power to force medical providers to turn over records by a specific deadline.
One thing about these exceptions is worth knowing, and it isn’t obvious from the list.
They are examples, not a closed set. Your situation may not fit one of these categories. That’s ok. You can still ask the administrative law judge to leave the record open. I did this recently in a case where the claimant had undergone an MRI a few days before the hearing, making it impossible to comply with the five-day rule. The ALJ agreed and kept the record open.
You will also find variation amongst ALJs in how they handle violations of the five-day rule. Some judges are lenient, and will almost always permit an additional 30 days to obtain and submit evidence. Other judges are strict, and require you to meet one of the exceptions. And some judges go back and forth; it depends on how they feel that day.
Even though I have a good idea of how the particular judges I go before in Virginia handle this issue, I never want a judge to exclude evidence. That is why I put the five-day letter procedure in place soon after receiving the hearing notice.
What This Means If You Also Have a Workers’ Compensation Claim
If you are seeking Social Security disability while a workers’ compensation claim is open, you have a second medical file sitting somewhere that the Social Security record may not contain. For example, those of you with an active or recently settled Virginia workers’ compensation claim likely have a record available through the Workers’ Compensation Commission’s WebFile portal.
This workers’ comp file is usually the more useful of the two. Here is why.
The question at the last two steps of Social Security’s five-step sequential evaluation for disability is functional. The SSA does not really care what your diagnosis is. Rather, it wants to know what you can still do, mentally and physically, on a full-time basis.
Generally, ordinary medical records do a poor job of answering this question. Your doctors focus on finding the right diagnosis and providing care, not measuring what you can or cannot do at home or in the workplace. This omission is why my firm asks claimants’ doctors to write disability letters that address functional limitations and complete Medical Source Statements.
By contrast, a workers’ compensation file contains records to answer the functional question. Work restrictions from doctors. Independent medical examinations (IMEs) ordered by the insurance carrier. Functional capacity evaluations (FCEs), whose weight in a Social Security claim often depends on who completed or signed off on it. Permanent impairment ratings. Assessments from job counselors documenting their inability to find jobs within your restrictions. This evidence, critical to workers’ compensation disputes, can also help your Social Security claim.
Practical Steps to Comply with the SSA’s Five-Day Rule for Evidence
Follow these three rules, and you should be in good shape as far as the Social Security’s five-day rule for evidence goes.
Inform early. There is no penalty for telling the SSA about existing evidence before the deadline. Do not wait to see whether the records arrive. Instead, tell the SSA about the records that exist when you request them.
Document follow-up efforts. Keep track of every request you send to the medical provider’s office or phone call you make. Multiple attempts to obtain evidence show the ALJ that you acted diligently.
Fill out the SSA’s forms. Social Security sends many questionnaires and reports during the disability process. Some of them include space to write down your current treatment and providers. Take advantage of this. If a form lists your doctors, the ALJ will have a hard time saying you did not inform the SSA of outstanding evidence.
Here to Help You Obtain the Evidence and Win Your Claim
You do not need every record in hand five business days before your hearing. You only need to have told the hearing office what is missing and who has it. That one step, taken early, is usually the difference between evidence the judge considers and evidence the judge can ignore.
If your hearing is scheduled and records are still outstanding – especially records sitting in a workers’ compensation file – call me at (804) 251-1620. The sooner we talk, the better our chances of helping you comply with the rules.