May 16, 2017

That Five Day Rule Isn't Being Implemented Uniformly

     An e-mail I received recently from another Social Security attorney:
Judges have been inconsistent with the application of the 5 day rule in my experience so far.
Judge _____ in ODAR Office A refused to consider records that arrived the day of hearing, despite my timely submitted 5 day notice.  I explained to the judge that the regs say that claimant must inform judge of evid not submitted before 5 biz days, and the regs do not require good cause showing for evid that the claimant has informed the judge 5 days before the hearing.  He told me that he feels (and he has spoken with other judges and they also feel) that the claimant needs to not only show good cause, but also provide documentation of good cause.  Basically, my explanation provided in the notice was not sufficient, he needed something to back up what I was saying.  He thinks that a fax confirmation of the med record request etc may be sufficient. 
He did allow a statement submitted by one of client’s providers, saying that he would do so because it is short and it would not delay decision. He did comment that it was not mentioned in my notice.  (I did not include it in my notice because that statement did not exist when I submitted my notice, it was dated about 3 days before hearing.)
He added that in another case just prior, he refused to look at new evidence submitted after the 5 day mark even though there were information in the records hurting the claimant’s case.

Another judge in ODAR Office B also seemed to think a good cause determination needs to be made despite 5 day notice.  A 3rd judge in ODAR Office B not only allowed me additional time to submit the evid mentioned in my 5 day notice, but also allowed me to submit other evidence posthearing (claimant told me of additional treatment the date of hearing). 
     Social Security hastily drafted these proposed regulations. They completely ignored comments made about the proposed regulations and adopted them in haste. Hey, if attorneys oppose them, they must be good, right? The agency gave its staff no meaningful explanation, much less training on the regulations. No one should be surprised when Administrative Law Judges start interpreting the regulations in ways never imagined by those who drafted them. What is happening is exactly what I expected. I expect that all of us who represent claimants were expecting this.

30 comments:

Anonymous said...

Is SSA management awake? If so they need to quickly issue instructions. It is clear from the post that some ALJs don't understand what was published in the Federal Register about how to implement the five day rule.

Dan Smith said...

Those particular ALJs are simply in the wrong about the "notification" requirement. They'll get the picture eventually, even if it takes a couple remands to set them straight.

Anonymous said...

National training was provided to all office staff. Whether a particular alj actually follows the training is the issue.

Anonymous said...

Funny how the reps in R1 have not had a problem for years. The problem now is that the rest of the reps now are being held accountable to start developing the case more than 20 days before the hearing. My experience so far is that we get a letter sent in 5 days before the hearing saying we have ordered records from these 10 providers . . . then at the hearing find out that the rep only tried to find the claimant two weeks before he hearing, even though the case had been pending for 3 years, and the rep agreed in November for the hearing date in May. That is inexcusable, and will not be tolerated.

Anonymous said...

The ALJs and the staff rec'ed the training. Not only once. Plus "all of the above" rec'ed written info about this. As always, some ALJs do what they want to do or they think they should do - or whatever. This is not different then any other idiosyncrasies particular ALJs have. AC or court remands will clear this probls eventually. Well, w some likely never cuz they can care less what remands say. However, when it comes to submitting MER late, well, the fact is that most reps - and that includes most who are attorneys - do not work on their cases but let their $10-an-hr staff (whose last hob was w a fast food chain...) work on them and usually after the hearing is scheduled, sometimes just 2-3 weeks before it is to be held. At that time so much MER is outstanding that it's not even funny. To compound the probl, the same irresponsible (lazy?) reps and their less than cooperative and upfront clients fail to tell each other what they have and what they do not or what places the claimant visited in the last yr, 2,... for care, and that info comes up for the first time when the ALJ examines the claimant. Needless to say, the situation is even worse with unrep'ed clts. I must say that I do not know a state or a federal court - even some admin courts like immigration - in which one can come in and ask to submit evidence whenever s/he chooses or feels like and that was the case w our Mickey-Mouse-disability "courts" - not to call them kangaroo courts - for so many decades (w exception of Region 1). Not to mention that ALJs here need to "worry" about clts interests even when they r represented which is ridiculous to begin w. So often, regrettably, one can't escape a feeling that the agency (ALJs included) has more interest in clts being found disabled then the clts themselves - and their reps who do it for quite a bit of $ (only).

Anonymous said...

The problem the rule is supposed to address is the last minute "evidence dumps" for reps that do not see their clients until the day before hearing. Not having all the evidence timely submitted makes meaningful review difficult and causes problems for the ALJs when crafting the RFCs. I agree that good cause requires more than a quick explanation from counsel and would expect to see documentation backing up counsel's claims. However, this all can be avoided when reps continually update the medical evidence and see their clients well before the scheduled hearing.

Anonymous said...

Name a policy from SSA that is implemented uniformly. The program is huge, it strives for uniform impartiality, unfortunately it depends on humans.

Anonymous said...

It's judge by judge in Ohio/WV. It's very predictable which ones vigorously enforce it.

Anonymous said...

oh yes, yes,,, continually update a file that no one will look at ever until the day of hearing, or more likely afterward? Sure, that makes sense if ODAR bears the additional fees. And, wow is must be fun to beat up on the lawyers who are actually doing work while the ALJs will not read it anyway until 5 minutes before hearing. I meet in person with all my clients well ahead of hearing, and they still "forget." Clients routinely do not tell an attorney everything, despite best efforts. And there are many (but a minority) of providers who will not release records no matter what until there is a there is a threat of legal action. There was nothing at all wrong with the prior policy. Closing the record prior to a hearing is inconsistent with due process and creates an adversarial proceeding. I think the good judges who have not forgotten that they are lawyers are ignoring the five day rule for the greater good of the claimants and judicial efficiency. Really, it may be great fun for some ALJs to slap around attorneys, but 2 years from now when these cases are all coming back from the courts to be reheard they will end up sorry as their caseload bogs down even worse.

Anonymous said...

The policy was adopted at a time when no one was at the wheel. Ill conceived and invites disparity amongst ALJs, especially those who never follow the regulations anyway. I find it naïve and sad, that some commenters believe AC or court remands will eventually resolve the problem. History tells us the AC remands very little and with no consistency. SSA continues to unravel the disability program. It will take years to rebuild if at all.

Anonymous said...

The AC is far more interested in scaring sheepish ALJs with own motion reviews than spending time on a denial. Claimants should be able to bypass straight to the USDC as the AC refuses to even look at the most egregious cases. My RVR rate has soared in the past few years with really stupid cases missed by the AC. While the AC has declined reviews, the court cases are getting easier as there is no filter. OGC can not and will decline to defend garbage. I can not imagine that OGC will want to defend cases where a rigid judge would not look at solid case dispositive evidence presented within the five days or just after hearing. What USDC judge will ever find that fair? EAJA fees will climb.

Dan Smith said...

Um, did SSA switch the regs on us here?

The "5-day" regulation as it currently appears online makes no exception for informing the ALJ about future evidence submission as a way to preserve its admissibility, in direct contradiction to everything submitted in the Federal Register in December.

Register: https://www.gpo.gov/fdsys/pkg/FR-2016-12-16/pdf/2016-30103.pdf
Current reg 405.331: https://www.ssa.gov/OP_Home/cfr20/405/405-0331.htm

The section numbers as submitted in the Federal Register don't even match up with what's there currently.

Anonymous said...

Some ALJs look the files weeks before hearing and routinely see medical evidence that has not been updated in 2 years, which renders early file review as well as OTRs useless. It's also disingenuous to suggests ALJs "read the file 5 mins before hearing" or even after as you know that's nearly impossible. You describe "good cause" in noting why the record may be incomplete in some of your cases, which is all the new rule requires. Unfortunately, some of your colleagues wait until the last minute or cavalierly keep sending in records without leave well after the hearing making the new rule necessary. The record must eventually close sometime, right? Lastly, no ALJs want to "slap around" attorneys, they just want them to do their jobs as I am sure vice versa from the reps.

Anonymous said...

The 5 day rule will get tossed out by Federal Court. ALJ ssa hearings are supposed to be non-adversarial and the ALJ has a duty to develop a full and complete record whether or not claimant has a rep. , under case law. The moment an ALJ has rejected evidence or opening written statement before him on technical grounds, the ALJ has violated both these duties in the most egregious manner possible. End of story. Every single case with evidence rejected on technical grounds will become part of a class action lawsuit at some point and get a,Federal Coutt remand for rehearing. I predict this. Yes, I know some will say that didn't happen in the small circuit that had prior evidence deadlines. However, all Circuits have different case laws and it was my understanding that the ALJ's in the small circuit that had the rule, never really enforced it much, so the rule didn't get much judicial scrutiny.

Anonymous said...

405 rules are rules for the small circuit that had the evidence submission rule all these past years. You need to look at 404 and 416, outside that small circuit.

Anonymous said...

Our local HOCALJ issued his own interpretation of what reps need to be doing to comply with the new regulations. The funny thing is that there is no basis in the regulations for the things he is attempting to require.

We have had numerous other ALJs indicate that they do not feel that informing of evidence is enough. I am amazed that they obviously have not read the Agency responses to comments in the final rule publication which clearly indicates that informing is sufficient. Should be an interesting ride in the short term as ALJs try to flex their muscles only to get put back into their place by reps who actually read and know what the regulations say.

It appears as though the line ALJs do not like the final result put out by the ivory tower folks and are going to take their frustrations out on claimants and reps instead of following the regulations like they are supposed to.

Anonymous said...

The ALJ must be informed about the evidence no later than 5 days, but will accept the late submission or development after the deadline if the decision has not been issued and the claimant demonstrates "some other unusual, unexpected, or unavoidable circumstances beyond the claimant's control preventing him or her from informing or submitting the evidence earlier"...ie good cause.

Informing is not enough. Once the late evidence is submitted, good cause must be still be shown.

Anonymous said...

ODAR has struggled to do more with less for years even though the component has frequently received a larger piece of the smaller SSA pie to help address the backlog. The vast majority of every part of the team – ALJs, decision writers, paralegals and managers has consistently striven to function more effectively despite the unyielding stress of the workload. Why not expect the same of the representative community which is as much as part of the process as the ODAR team? It would be counterproductive not to. While no tool is perfect and one size never fits all, in a system as large and diverse as ODAR, the 5-day rule is a good start. It works in R1. ALJs need to be flexible enough to make reasonable accommodations, and some representatives need to up their game. The bottom line is the world is changing beneath our feet and the changes are not beneficial to claimants. We all need to work together to minimize the negative impact on them because our problems are pretty insignificant compared to theirs.

Anonymous said...

Bear in mind that the 405 regs applicable in R1 for the last decade did not include the language about "or inform" nor did they explicitly apply to briefs and other rep-generated documents many of us believe are pertinent but are not "evidence." The rep's brief is argument or summary rather than actual evidence. Making the transition to the new version is just as confusing in R1 as elsewhere. Also, the version of 404.935 available on ssa.gov and even internally via agency resources is still the prior version. I did find the updated version on eCFR.gov.

Anonymous said...

"No one should be surprised when Administrative Law Judges start interpreting the regulations in ways never imagined by those who drafted them."

Why waste a single moment wondering how an ALJ is going to interpret the Reg??
The language is the language is the language. Comply with the clear language of the Reg and, metaphorically, beat the ALJ over the head with it.

Anonymous said...

@ 5:45,you just quoted:

"demonstrates 'some other unusual, unexpected, or unavoidable circumstances beyond the claimant's control preventing him or her from INFORMING or submitting the evidence earlier'"

and then you conclude that "informing isn't enough" It's this kind of idiotic interpretations that are causing the problems. Obviously, if you INFORMED, then why would you have to prove circumstances that kept your from informing. It's only if don't inform or submit that you have to show why you didn't INFORM or submit. I sincerely hope that @5:45 doesn't work for ODAR.

Anonymous said...

Whoever drafted these regs in Falls Church or Baltimore has no clue about the daily reality of ODAR hearings and most certainly dropped the ball. This change in regulations was sold to ALJs as a means to force recalcitrant reps to submit evidence in a timely manner. Instead, the drafters added the "inform" exception which completely swallows the rule.

In order to comply with the 75-day notice provisions, ALJs in my office now have to finalize their hearing schedules 5 months out in order to leave enough time for the schedulers to do their jobs. Imagine if you will, having to plan your life in 6-month increments. Vacations, kids' school functions, sick relatives, the flu...they all have to make appointments 6 months out. In exchange, we're supposed to be able to review the record and prep for hearings in a reasonable time. Not the day of the hearing, not a week after the hearing, not the day before the decision is signed.

Now I'm sure every representative reading this blog is honorable and diligent in their representation. However, in my office, one of the firms is notorious for contacting their clients last-minute (if at all) and submitting hundreds of pages worth of records right before the hearing. Oftentimes records, and even treating source statements, are submitted after the hearing, without any notice that they would be forthcoming. I do not exaggerate when I say that this occurs in roughly half the cases I see from this firm. I've seen last-minute filings reveal that a claimant had suffered for a year from a cancer that would have qualified for a compassionate allowance and an on-the-record decision had the evidence been requested and submitted earlier. Same with end-stage renal disease. I've also seen plenty of last-minute filings that reveal that the claimant was back to work or had made a full recovery. You just can't properly prepare for hearings under such circumstances (despite the snarky 5-minute comment above, I review all the records well in advance of the hearing date).

The judges have tried to plead, cajole, and even threaten, but nothing seems to change these practices for very long. The Region 10 and OGC are too timid to take on the firm. So we rejoiced when we heard that the long-awaited (10 year?) miracle in Region 1 would be spread to all regions. We didn't even mind so much having to set our schedules farther out, so long as we wouldn't have to guess at the possible RFC the records would reveal, or have the reps flout the administrative process when it conflicted with their bottom line.

Well, now in roughly half the cases I've reviewed for the next couple of weeks, I see that the firm has submitted notices informing me that the records will not be submitted more than 5 days before the hearing. Some of the notices are so vague as to state that they don't what the evidence is, but they know that there is some evidence that may be outstanding. So for those expressing fake outrage that some judges don't quite know what to do with the new rules and the various Hallex provisions and videos that try to explain them, I hope you understand that not every representative is as conscientious as you espouse yourselves to be. Because the unethical, money-hungry reps obviously don't read this blog.

So in conclusion, I will quote on of the greatest representatives ever - Pete Townshend:

There's nothing in the streets
Looks any different to me
And the slogans are replaced, by-the-bye
And the parting on the left
Are now parting on the right
And the beards have all grown longer overnight

I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around
Pick up my guitar and play
Just like yesterday
Then I'll get on my knees and pray
We don't get fooled again
Don't get fooled again
No, no!

Meet the new boss
Same as the old boss

Anonymous said...

@5:45PM

You clearly failed to read all the responses in the final regs as there is a specific statement:

"If a claimant informs an ALJ about evidence 5 or more days before the
hearing, there would be no need for the ALJ to find that an exception applies,
because the claimant notified us prior to the deadline."

I don't think this statement could be any clearer.

Anonymous said...

The reg says submit or inform. SSA notes on comments explicitly address why it included inform. The uniformity letter says submit or inform.

FF decisions are including this language:

"The claimant submitted or informed the undersigned about all written evidence at least five business days before the date of the claimant's scheduled hearing (20 CFR 404.935(a) and 416.1435(a))."

Any "interpretation" otherwise is willful ignorance. I spoke with ALJ yesterday and I asked him he read it that way. His response was to the effect informing wouldn't work in other courts. I read him the reg and it was clear he hadn't taken time to read it himself. I'm going to start making the offical notice of rulemaking in the Federal Register an exhibit to my 5-day letter, hopefully someone will read the law eventually.

Anonymous said...

Have any of you reps complaining about getting medical records ever heard of the hitech act? Like, come one. Stay up to date on things that impact your job.

Anonymous said...

To all those who believe that "informing" is adequate under the regulation, how do you square it with the affirmative obligations that already exist stating that a representative must “[a]ct with reasonable promptness to help obtain the information or evidence that the claimant must submit under our regulations, and forward the information or evidence to us for consideration as soon as practicable[.]”? (20 C.F.R. §§ 404.1740(b)(1) & 416.1540(b)(1)). Additionally, HALLEX I-2-5-13(A)(note 2), states that “[i]f a representative has a pattern of informing SSA about evidence that relates to the claim instead of acting with reasonable promptness to help obtain and forward the evidence to SSA, an ALJ will consider whether circumstances warrant a referral to the Office of the General Counsel (OGC) as a possible violation of our rules.”

The point of this regulation is to attempt to get all relevant information in front of the judge by the date of hearing so that an expeditious decision can be issued. Isn't that the goal of a conscientious representative?

Anonymous said...

You are mixing apples and oranges. This pom and the related reg is concerned about reps that refuse to order any records. The concern isn't about reps who notify that records will be submitted late.

Anonymous said...

An interesting point, the reason the five day rule is such a mess is because technically the claimants and reps have no duty to request records according to regs. Actually it is Social Security that has duty to request records. This is why there is a federal cap on how much providers can charge ssa for records but no such cap exist when claimant's or their reps request records. Ssa does not withhold money from benefits to reimburse reps for incurred expenses. In any other area of law attorneys are guaranteed a way to recover costs, because payments are sent with lawyers name on the gross payment check. This is why the regs have to say reps must inform or submit records. ALJs would like reps, who are on contingency and have no way of recovering costs, to requests and submit early all records for all doctors. Truth is reps only have a duty to inform of records but no duty to request records as the ssa law are written and deeigned.

Anonymous said...

The Regulations do not mention "good cause" with regard to the ALJ level of adjudication - thus that should not be the finding. The AC portion of the regs does mention good cause - so the judge that is discussing good cause might want to actually read the regulations.

Bastian said...

anyone have a link to the comments section of the new rule that states notifying complies with the new regulation?