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

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.

Surprise and the Post-Hearing Brief

I discussed the issue of the five-day rule for the submission of evidence.  I did so as a break from the consistent drone of vocational issues.  Today, we see those two concepts get married.

The intrepid representative receives a notice of hearing containing a statement that a vocational expert will testify at the hearing.  A separate notice to the vocational expert gives that person's name and address.  The exhibit file will eventually contain a copy of the person's professional resume, or curriculum vitae.  Does the representative know what the person will say in response to any hypothetical question?  Does representative know what the hypothetical question will be as framed by the ALJ?  If the representative does not know, then any testimony given by the vocational expert constitutes SURPRISE!

HALLEX addresses supplemental and continued hearings.

I-2-6-80.Continued or Supplemental Hearing

Last Update: 9/2/05 (Transmittal I-2-64)

Citations:

• 20 CFR §§ 404.944, 416.1444.
  

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;
  

The vocational expert testimony has taken the claimant by surprise, is adverse to the claimant, and the claimant could not reasonably anticipate the content of the vocational expert testimony.

The right to a continued or supplemental hearing, or rather the right to request one, includes lesser remedies.  A lesser remedy to a continued her supplemental hearing is the submission of post-hearing evidence in the form of a request for administrative notice.  Administrative notice constitutes evidence of fact without the introduction of testimonial evidence.  Since the claimant does not want to take further of live testimony, but rather prove the existence of conflict between the vocational expert testimony and matters of administrative notice, whether the ALJ actually convenes a continued her supplemental hearing is irrelevant to the disposition that the claimant should have the right to submit a post-hearing brief that attaches, proffers, or otherwise introduces matters of administrative notice.

The matters of administrative notice include private and governmental sources of job data.  The examples provided in the regulations include the Dictionary of Occupational Titles, County Business Patterns, and the Occupational Outlook Handbook.  Because these are examples, other types of administrative notice exist.  This includes the O*NET OnLine, the Occupational Requirements Survey, and private publications.  Private publications include products published by SkillTran and U.S. Publishing.

Request an submit a post-hearing brief on vocational issues adverse to the claimant's testimony.  Be thorough and complete.

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.