Tucson Social Security Disability Blog

The New 5-Day Rule For Submitting Evidence

Posted by John Kuhnlein | Feb 09, 2017 | 0 Comments

The new SSA rules for processing Social Security disability claims are both procedural and substantive.  I will start with one from the former camp. 

Provide Or Inform

Starting on January 17, 2017, SSA will require all claimants to either provide SSA with all relevant evidence or inform SSA of all relevant evidence at least 5 days before a claimant's hearing. Note that compliance with this rule is not mandatory until May 1 (May Day--how appropriate.) It is possible that some Administrative Law Judges (ALJs) will demand claimants follow this rule sooner that May 1, 2017. For this reason, it makes sense to start preparing for it now.

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You Got 5 Days And Then . . .

The 5-day rule is designed, in theory, to make the processing of disability claims uniform and easier.  The uniformity argument is weak in that it scarcely makes any difference to the merits of claim when a claimant submitted his or her relevant evidence. What SSA is more interested in with this rule is ensuring that ALJs have all the evidence at the time of the hearing.  This makes sense. Most claimants would do this anyway, regardless of any rule change.  But, as always, the devil is in the details.

ALJs Still Have To Rule On A Complete Record

The first issue to consider is that ALJs are still obligated to rule on a complete record. SSA did not change that requirement. So, there really is no meaningful penalty for not complying with this 5-Day rule.  No matter when a claimant submits his or her evidence, so long as the judge is still deciding the case, she still has to accept the evidence and make it part of her decision.

Doctors And Medical Records Are The Rub

The bigger issue is likely to be the difficulty in providing evidence, particularly medical evidence, on any firm deadline. The people who wrote this rule have apparently never tried to order medical records. If they had, they would know that some doctors and clinics will not promptly provide their records no matter how many times the claimant asks for them.  For many doctors, responding to medical records requests is the last thing they are concerned with. For many doctors, even keeping medical records appears to be a

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They Got These Things Called Computers Now . .

very low priority.  Indeed, there are doctors still handwriting their notes, creating useless, illegible messes.

Inform Looks Better Than Provide

It will take time to see how claimants and their lawyers respond to the 5-Day rule. It appears the simplest way will be to write to the ALJ more than 5 days before the hearing. In this letter, a lawyer can simply list what evidence she thinks is relevant. This complies with the new requirement.  I would not be surprised to see lawyers write to ALJs and say something along the lines of "here are the doctors we know of. If you think you can get these records before the hearing, have at it."

Lawyers And Their Clients Will Have To Cooperate More

This rule does mean that claimants and their lawyers will have to work more closely on getting medical records. Claimants will need to provide very detailed lists of all their doctors. Lawyers will have to do a better job of asking questions about doctors and hospitals to make sure they get the records all ordered.  

There is likely to be a great deal of confusion as these and other new rules take hold. SSA could revise or even drop them if they prove unworkable. But, starting May 1, the 5-day rule will be in place. Next time, we look at the substantive rules. 

About the Author

John Kuhnlein

Since 1992, I have been helping the people of Southern Arizona get the benefits they are due. Before devoting all my efforts to assisting people with Social Security disability claims, I also handled such complex lawsuits as medical malpractice and products liability. I brought to my Social Security cases all the skills and attention to detail that I developed in the courtroom. I approach each Social Security disability case as if it were a million-dollar lawsuit. For the people trying to get Social Security benefits, their claim is every bit as important. Because I have personally handled so many Social Security cases, I have refined the skills I need to win your case for you. I have helped people win cases for every kind of ailment from arthritis to valley fever. At present, I am focused on helping those persons with neurological and orthopedic disorders. Because claims for people over age fifty bring additional complications, I particularly seek out those cases to work on. I regularly write about back and spine conditions on my blog. I actively seek out the latest information about orthopedic and neurological disorders to ensure I can represent my clients as effectively as possible. Because of my current focus, I regret that I am not able to take any cases for mental disorders. If you are over age fifty and suffer from any orthopedic or neurological disorder, please contact me at once.

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