Effective May, 2017, SSA passed a new regulation which requires Claimants who are at the hearing level to “submit or inform” SSA about written evidence at least 5 business days before the date of the hearing. I’m going to refer to this as the “5-day rule” to make things a little easier. The 5-day rule includes both medical and non-medical evidence which you want the judge to consider. If you don’t “inform or submit” evidence within the 5-day deadline, then you have to prove the evidence should be allowed into the record because it falls into an “exception.” These exceptions are enumerated in 20 C.F.R. 404.935 and 20 C.F.R. 416.1435:
SSA’s actions misled you;
You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or
Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to:
You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;
There was a death or serious illness in your immediate family;
Important records were destroyed or damaged by fire or other accidental cause; or
You actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing.
If you can prove at least one of the above, then the judge has to accept the evidence if he/she hasn’t issued a decision yet.
So what’s the bottom line if you miss the 5-day deadline? It’s up to the judge on whether he/she will consider or obtain the “late” evidence. That’s why it is extremely important to let your attorney know as soon as possible of any and all medical and non-medical evidence you want the judge to consider. In my cases, I even notify the judge early if I’m going to call on the assistance of a witness. Obviously, there are going to be instances in which a piece of evidence or a witness won’t be known within the 5 business days before the hearing. For example, if you go to the emergency room two days before the hearing, that would fall into an exception. But otherwise, make sure you always inform your attorney about evidence you want the judge to consider.
by Paul B. Burkhalter Managing Partner of Morgan & Weisbrod, Board Certified in Social Security Disability Law.