I recently blogged about new rules promulgated by the Social Security Administration (SSA) regarding Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) claims. There has been a lot of confusion regarding whether an Administrative Law Judge (ALJ) can decline to consider evidence that was not necessarily provided prior to the five business day rule, but in which the claimant or claimant’s attorney provided information informing the ALJ about the existence of the written evidence prior to five business days of the scheduled hearing.
The SSA recently clarified that under 20 CFR § 404.935(a) and 416.1435(a) provide that “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 § 404.1512 and 416.912, no later than five 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 the section apply.” The SSA has therefore noted that if the attorney or claimant informs the SSA about the additional evidence at least five business days prior to the date of the scheduled hearing, the inform or submit requirement of the regulations has been satisfied. The attorney is only required to inform or submit but not both.
If the attorney informs the SSA about the evidence prior to the five-day timeframe, but does not submit the evidence within that timeframe, the attorney still has satisfied the requirements of the regulations and therefore the ALJ may not refuse to accept the evidence. Additionally, under the regulations, if an individual does not inform the SSA about, or submit evidence at least five days in advance of the hearing, if the individual actively and diligently sought the evidence, then the SSA will find good cause to accept the evidence after the five-day timeframe at any time prior to issuance of the hearing decision. See 20 CFR §§ 404.935(b)(3)(iv) and 416.1435(b)(3)(iv).
If you need more information about a Social Security Disability/SSI, personal injury, EEOICPA, long or short-term disability, Railroad Retirement Board disability, or a workers compensation matter, please contact the Law Offices of Tony Farmer and John Dreiser for a free case evaluation. We can be reached at (865) 584-1211 or (800) 806-4611 or through our website.