The Five-Day Rule

Taking a break from the  vocational issues that have dominated this blog lately.  On May 5, 2017, the five-day rule for the admission of evidence became effective.  We explore the boundaries and implications of the rule. 

20 CFR §§ 404.935(a) and 416.1436(a) provide in relevant part 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, 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.

SSA states the obligation in the alternative.  Either submit the evidence five business days before the hearing or inform the ALJ of the existence of the evidence five business days before the hearing.  If the representative learns of new evidence and promptly informs the ALJ within five days of the hearing while contemporaneously making the request for records, the representative and the claimant has complied with the regulation. 

The regulations address the failure to comply with the five-day rule to inform or submit.  Subsection (b) states:

If you have evidence required under §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 did not inform us about or submit the evidence before the deadline because: ...

This subsection confirms the reading of subsection (a).  The ALJ will accept the evidence after the passage of the deadline if the ALJ has not issued a decision and the claimant/representative did not inform the agency about the evidence before the deadline.  We don't get to the conditions for considering the late evidence if the predicate of the syllogism does not apply. 

The solution is self-evident.   Get a list of care providers from the claimant and submit that list to SSA a month or two before the hearing.  If the representative hits a snag in the collection of evidence, the informing the ALJ of the existence of the evidence 45 days ago protects the "late submission."  The regulation does not force an emergency record procurement with the attendant costs to the claimant.  Inform the ALJ of the care providers, all of them, well before the five days expires.