Responding to the Five-Day Rule When the ALJ Refuses Post-Hearing Development

The vocational expert coughs up testimony that is frankly not true.  We ask for post-hearing development.  The ALJ says "no, the five-day rule gives me discretion to refuse, and I do."  The question is whether the ALJ has a regulatory leg to stand on.  Secs. 404.935 and 416.1435 provide in relevant part:

(a) When you submit your request for hearing, you should also submit information or evidence as required by § 404.1512 [§ 416.912] or any summary of the evidence to the administrative law judge. 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 [§ 416.912], 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.

 Secs. 404.1512 and 416.912 describe the evidence that claimant must submit or inform the agency no later than five business days before the hearing:

(a) Your responsibility—(1) General. In general, you have to prove to us that you are blind or disabled. You must inform us about or submit all evidence known to you that relates to whether or not you are blind or disabled (see § 404.1513 [§ 416.913]). This duty is ongoing and requires you to disclose any additional related evidence about which you become aware. This duty applies at each level of the administrative review process, including the Appeals Council level if the evidence relates to the period on or before the date of the administrative law judge hearing decision. We will consider only impairment(s) you say you have or about which we receive evidence. When you submit evidence received from another source, you must submit that evidence in its entirety, unless you previously submitted the same evidence to us or we instruct you otherwise. If we ask you, you must inform us about:

(i) Your medical source(s);

(ii) Your age;

(iii) Your education and training;

(iv) Your work experience;

(v) Your daily activities both before and after the date you say that you became disabled;

(vi) Your efforts to work; and

(vii) Any other factors showing how your impairment(s) affects your ability to work, or, if you are a child, your functioning. In §§ 404.1560 through 404.1569 [§§ 416.960 through 416.969], we discuss in more detail the evidence we need when we consider vocational factors.

 Evidence about other work in the national economy or how work is typically performed in the national economy are absent from the list.  Rebutting vocational expert testimony is not subject to the five-day rule.

The content of vocational expert testimony is always a surprise.  Sometimes it is a good surprise and sometimes not.  But surprise adverse testimony provides a basis for requesting a supplemental hearing under HALLEX I-2-6-80:

Circumstances may require an ALJ to adjourn a hearing in progress and continue it at a later date, conduct a supplemental hearing, or reopen the record to receive additional evidence. If testimony at a hearing leaves unanswered questions, the ALJ may supplement the hearing record with additional oral testimony, a deposition, or additional documentary evidence.

A continuance or supplemental hearing is appropriate when:

• certain testimony or a document adduced at the hearing has taken the claimant by surprise, is adverse to the claimant's interest, and presents evidence that the claimant could not reasonably have anticipated and to which the claimant is not prepared to respond;

[...] 

If the ALJ decides during the course of a hearing to continue the hearing and hold a supplemental hearing at a later date, the ALJ may set the date for the supplemental hearing at that time or state that he or she will notify the claimant later of the date of the supplemental hearing. The rules governing the conduct of the initial hearing apply to the continued or supplemental hearing. If an ALJ decides to conduct a supplemental hearing, he or she must reopen the record.

Unless the claimant or representative had ex parte communication with the vocational expert before the hearing or the ALJ proffered responses to written interrogatories before the hearing, the vocational expert testimony is always a surprise.  If it is adverse, post hearing development is appropriate if not a full supplemental hearing.