Five Day Requirement Finalized

Empire Justice January 31, 2017

In another example of the Social Security Administration (SSA) acting with amazing haste, it published its final “program uniformity” regulations on December 16, 2017.  https://www.gpo.gov/fdsys/pkg/FR-2016-12-16/pdf/2016-30103.pdf.

The July 2016 Notice of Proposed Rule Making proposed, among other things, closing the record five business days before a scheduled Administrative Law Judge (ALJ) hearing.  The Empire Justice Center, a number of other advocacy organizations, and members of Congress voiced opposition to SSA’s proposal.  SSA, however, did not withdraw the five-day requirement.

SSA’s ostensible goal in promulgating these changes is to “ensure national consistency in our policy and procedures and improve accuracy and efficiency in our administrative review process.” 81 Fed. Reg. 09087.  The changes will bring the rest of the nation in accord with practices in place in the Boston region (Region 1) for the past ten years.  In implementing these new regulations, Part 405 of 20 C.F.R., which governed Region 1, has been removed.

Sections 404.935 & 416.1435 of 20 C.F.R. (Submitting evidence prior to the hearing before an administrative law judge) have been significantly revised. Claimants and their representatives must submit evidence, or inform SSA about it, at least five business days from the hearing, unless an exception applies.  Unless an exception applies, the ALJ may decline to consider or obtain the evidence.

In response to comments, SSA revised the proposed regulation to clarify the circumstances described that would constitute good cause for a claimant or representative to submit evidence after the five-day deadline are not exclusive examples.  The examples at 20 C.F.R. §§ 404.935(b)(3) & 416.1335(b)(3) include:

  • serious illness,
  • death or serious illness in the immediate family,
  • important records were destroyed or damaged by fire or other accidental cause, or
  • the claimant actively and diligently sought evidence from a source and the evidence was not received or was received less than five business days prior to the hearing.

In response to comments, SSA removed the phrase “through no fault of your own” from the last example “to reduce the evidentiary burden on claimants who are unable to produce evidence.” 81 Fed. Reg. 90988. A claimant’s physical, mental, educational, or linguistic limitation(s) preventing him or her from informing SSA about or submitting the evidence earlier could also constitute good cause. 20 C.F.R. §§ 404.935(b)(2) & 416.1435(b)(2).

In its commentary, SSA sought to reassure the public that these changes will not relieve adjudicators of their responsibility to make decisions based on the evidence presented at hearings. SSA argued the changes will promote both efficiency and fairness, citing experience in the Boston region. In response to many concerns raised by commenters, SSA reiterated the ability of ALJs to find exceptions to the requirement. It also claimed that responding to requests to submit evidence pursuant to one of the exceptions did not cause extra work in the Boston region. 81 Fed. Reg. 90989. In response to comments about “variances” in how ALJs in the Boston region applied similar rules, SSA promises to provide additional training to adjudicators and staff about applying the exceptions. 81 Fed. Reg. 90992.

SSA made several other changes to the proposed rule in response to comments. It amended 20 C.F.R. §§ 404.939 & 416.1439, 404.949 & 416.1449, and 404.950(d)(2) & 416.950(d)(2) to include exceptions to the deadlines for objecting to issues at a hearing, presenting written statements, and requesting subpoenas. Note that subpoenas must be requested at least ten business days before the hearing date, as opposed to the five-day time-frame in the current regulation. The five-day requirement does apply to objections to the issues and written statements. But SSA clarified that the five-day requirement only applies to pre-hearing written statements, not to post-hearing statements. 81 Fed. Reg. 90991. And SSA states that the exceptions could be relied upon to submit rebuttal evidence if an ALJ introduces new evidence at or after the hearing. Id.

SSA agreed with comments that hearing notices should  provide at least 75 days before a hearing rather than the 60 days in the proposed rule. 20 C.F.R. §§ 404.938 & 416.1438.

The new regulations also affect the Appeals Council. It will consider new and material evidence that relates to the period on or before the date of the hearing decision only if there is a reasonable probability the evidence would change the outcome of the hearing decision. 20 C.F.R. §§ 404.970(a)(5) & 416.1470(a)(5). The Appeals Council regulations have also been amended to provide the Appeals Council will only consider new evidence if the claimant shows good cause for not informing SSA or submitting it in accordance with  20 C.F.R. §§ 404.935 & 416.1435. See 20 C.F.R. §§ 404.970(b) & 416.1470(b). The good cause exceptions are repeated in the Appeals Council regulation.

SSA withdrew its proposed rules allowing the Appeals Council to conduct a hearing to develop evidence. SSA disagreed with commenters who argued there was no legal basis for this proposed change, but nonetheless decided to remove the proposed rule. According to SSA, the Appeals Council will continue to exercise its authority to develop evidence in accordance with 20 C.F.R. §§ 404.976(b) & 416.1446(b). 81 Fed. Reg. 90989.

Several other sections have been reorganized or revised to cross reference the new regulations.

These new regulations will undoubtedly create new burdens and hassles for advocates already struggling to get evidence in a timely fashion. Advocates should keep in mind, however, that informing the ALJ of new evidence within the time frame should be sufficient to comply with the new requirements.  SSA states in its commentary: “In addition, we note that if a claimant informs an ALJ about evidence 5 or more days before the hearing, there would be no need for the ALJ to find that an exception applies, because the claimant notified us prior to the deadline.” 81 Fed. Reg. 90990. Advocates will thus need to make sure they notify the ALJ in writing at least five days before the hearing that they anticipate receiving and submitting new evidence.

What is not clear, however, from the regulations and commentary is what procedures will be followed if an ALJ refuses to accept evidence proffered or finds it is not material.  Section 404.951(b) (Contents of the official record) refers to, inter alia, “any additional evidence or written statements that the administrative law judge admits into the record under §§ 404.929 and 404.935.”  (See also 20 C.F.R. § 416.1451(b)). Does evidence an ALJ excludes under the five-day requirement or rules as not material become part of the official record? Query whether uploading the evidence into ERE will secure it as part of the record? Advocates will need to make any disputes about the admission of evidence clear on the record to preserve the issue for appeal.

The new rules became effective on January 17, 2017. According to the notice, however, “compliance is not required until May 1, 2017.” Please keep us informed, come May, of how ALJs are implementing this new five-day requirement.