Chase those records! SSA’s Five-Day Rule

What is the Five-Day Rule?

Question DisabilityIn 2017, a change known as the Five-Day Rule was codified into the Regulations.  This new Five-Day Rule allows ALJs to exclude evidence that is submitted fewer than five business days prior to the hearing.  The policy reasons behind this change seem pretty straightforward.  The SSA is trying to ensure that ALJs have time enough to review as complete a case as possible before the hearing.  Holding a hearing and subsequently keeping the record open adds months to processing time, which is not good for the judge who may need to call a supplemental hearing, and it is not good for the Claimant who has likely already waited years for their case to be resolved.

Five-Day Rule Exceptions

The Five-Day rule does however have provisions that are designed to make allowances for late-submitted evidence.  CFR §405.331 allows late evidence to be submitted if the SSA’s communications misled a Claimant, a Claimant had a physical, mental, educational, or linguistic limitation that prevented them submitting the evidence earlier, or some other unusual, unexpected, or unavoidable circumstance prevented the Claimant from submitting the evidence earlier in compliance with the Five-Day Rule.

Five-Day Rule in Practice

Five-Day Rule Notice

Not every piece of evidence is able to be gathered prior to the hearing in compliance with the Five-Day Rule.  This may be because of challenges getting in touch with a medical provider’s records team, because the treatment was very recent, or for a host of other reasons.  This does not mean that the records will be automatically excluded if the Five-Day Rule is violated.  HALLEX I-2-5-13 addresses how to handle these records.  A Claimant or their Representative should know about the existence of medical records, even if they are not immediately available.  As such, they should inform the ALJ about the existence of these outstanding records (provider and date of service) more than five business days prior to the hearing.  If this is done, the ALJ is directed by this HALLEX to consider the late-arriving evidence in their decision.

The Five-Day Rule is not difficult to comply with, but failure to do so could easily result in unfavorable circumstances.  Claimants or their attorneys should always be mindful of timelines to avoid the exclusion of vital evidence.  If you need assistance with your case, contact a lawyer at O’Brien & Feiler today, and if there is terminology in this note that is confusion, visit OBF’s online glossary.