Social Security Proposes Harsh Evidence Deadline in Disability Cases
In the July 12, 2016 Federal Register, Social Security proposed a rule requiring that evidence be submitted 5 days before a hearing in SS Disability cases. Comments on the proposed rule must be submitted by August 11, 2016. On its face, the 5 day deadline does not look unreasonable. However, when you combine Social Security’s extreme backlog delay with another regulation that only requires SSA to give claimants 20 days notice of a hearing, the proposed rule has the potential for abuse. We would propose a different approach: extending the 20 hearing notice to 60 days, and then requiring claimants to submit evidence 15 day before the hearing.
The 5 day rule is an effort at a uniform evidence rule
The proposed rule is titled Federal Register – Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, and was ostensibly designed to deal with the way that different Hearing offices, and even different Administrative Law Judges within a hearing office, treat evidence submissions. Is is not uncommon for one ALJ to have no rule on the subject and another to send a letter requiring evidence more than 5 days before a hearing.
The problem is that Social Security can schedule a hearing on 20 days notice
As noted above, the problem is that some office or ALJs will not send hearing notices until the last possible moment, and by the time the notice arrives in the mail, the disabled claimant and their attorney must scramble to obtain updated records and submit them to Social Security. People making disability claims often have to wait more than 18, 20, or even 24 months depending on the office to get their hearing. During that time, they cannot constantly obtain updated medical records and submit them to the government due to the costs of obtaining medical records. When they do, no one at Social Security looks at the records for months on end anyway. There is no way for claimants or their disability attorneys to know when Social Security is going to schedule a hearing, and hearing notices will arrive out of the blue giving people a handful of days to make sure that Social Security has all of the updated evidence.
The key text of Social Security’s proposed new rule reads:
404.935 (a) … Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in Sec. 404.1512, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence unless the circumstances described in paragraph (b) of this section apply.
(b) If you have evidence required under Sec. 404.1512 but you have missed the deadline described in paragraph (a) of this section, the administrative law judge will accept the evidence if he or she has not yet issued a decision and you show that you did not inform us about or submit the evidence before the deadline because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. For example, the administrative law judge will accept the evidence if you show that:
(i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other accidental cause; or
(iv) You actively and diligently sought evidence from a source and, through no fault of your own, the evidence was not received or was received less than 5 business days prior to the hearing.
Missing the deadline has a serious repercusion: your evidence will not be considered. Unless you can show one of the exceptions happened to you, the ALJ will not look accept evidence in your case.
A better alternative: Require 60 day notice for hearings
Although the proposed rule includes a chance to submit evidence after a hearing, a better rule would be to extend the period required to give notice of the hearing to 60 days. Social Security could then require evidence to be submitted 15 days before the hearing, along with an optional pre-hearing brief (something our disability attorneys do in every Social Security claim we handle). This would give claimants and their disability attorneys 45 days to submit evidence and to make arguments about the evidence in writing. A longer period like this would also allow Administrative Law Judges time to consider evidence and in some cases, approve more obvious claims that were looked over at lower levels without having to spend the time on a hearing.
If you live in the Tampa Bay area and want to speak to an experienced Social Security Disability attorney about a denied Social Security Disability claim, call us at (866) 282-5260.