Ford v. Saul and the Five-Day Rule for VE Rebuttal

Ford v. Saul holds that a request to subpoena records from the vocational expert is too late under 20 C.F.R. § 404.935(a) (the five-day rule).  We analyze why that holding is wrong and why it does not constitute law of the circuit.  

We start with our premise:  the five-day rule does not apply to rebuttal evidence at step five of the sequential evaluation process.  That position rests on plain error of law.  We start with the regulation:

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, 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.

20 C.F.R. §§ 404.935(a), 416.1435(a).   The required (404.1512 and 416.912) sections describe the claimant’s responsibility:

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. In §§ 404.1560 through 404.1569, we discuss in more detail the evidence we need when we consider vocational factors.

 20 C.F.R. §§ 404.1512(a)(1), 416.912(a)(1).  Paragraph (2) describes the completeness issue:

The evidence in your case record must be complete and detailed enough to allow us to make a determination or decision about whether you are disabled or blind. It must allow us to determine—

(i) The nature and severity of your impairment(s) for any period in question;
(ii) Whether the duration requirement described in § 404.1509 [§ 416.909] is met; and
(iii) Your residual functional capacity to do work-related physical and mental activities, when the evaluation steps described in § 404.1520(e) or (f)(1) [§ 416.920(e) or (f)(1)] apply.

20 C.F.R. §§ 404.1512(a)(2), 416.912(a)(2).  The regulations do not impose a duty on the claimants to present evidence about the step five question before the hearing.  That duty rests on the Commissioner.  20 C.F.R. §§ 404.1512(b)(3), 416.912(b)(3):

In order to determine under § 404.1520(g) [§ 416.920(g)] that you are able to adjust to other work, we must provide evidence about the existence of work in the national economy that you can do (see §§ 404.1560 through 404.1569a [§§ 416.960 through 416.969a]), given your residual functional capacity (which we have already assessed, as described in § 404.1520(e) [§ 416.920(e)]), age, education, and work experience.

 The five-day rule does not apply to evidence in rebuttal to (b)(3).  The five-day rule does not embrace evidence after the step three interim finding of residual functional capacity for completeness.  While a claimant must inform the Commissioner about work experience, the evidentiary hearings typically spend time on that subject — the five-day rule does not apply to developing and completing the record for past relevant work purposes. The Commissioner recognizes the problem of surprise at a hearing generally.  81 Fed. Reg. 90987, 90991 (Dec. 16, 2016):

 if an ALJ introduces new evidence at or after a hearing, the claimant could use the exception in 20 CFR 404.935(b)(3) and 416.1435(b)(3) to submit rebuttal evidence. The claimant could also rebut evidence introduced at or after the hearing by submitting a written statement to the ALJ. As  previously mentioned, we added language to 20 CFR 404.949 and 416.1449 to clarify that the 5-day requirement applies only to pre-hearing written statements, not to post-hearing written statements.

Ford v. Saul, ___ F.3d ___, part D (9th Cir. Feb. 20, 2020) cites the five-day rule for the purposes of requesting a subpoena.  Ford does not analyze the scope of §404.1512.  Ford does not control the analysis of §404.1512 to the five-day rule by failing to discuss it.  See Miranda B. v. Kitzhaber,328 F.3d 1181, 1186 (9th Cir.2003) (per curiam) (“As we have noted before, ‘where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.’” (quoting United States v. Johnson,256 F.3d 895, 914 (9th Cir. 2001) (Kozinski, J. concurring)).  Ford does not confront the scope of §404.1512 and fails the law of the circuit test. 

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SUGGESTED CITATION:

Lawrence Rohlfing, Ford v. Saul and the Five-Day Rule for VE Rebuttal, California Social Security Attorney (March 13, 2020) edited (March 13, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/03/ford-v-saul-and-five-day-rule-for-ve.html