Dec 12, 2016

Regs On Submission Of Evidence Approved

1) the time-frame for notifying claimants of a hearing date;
2) the information in our hearing notices;
3) the period when we require claimants to inform us about or submit written evidence, written statements, objections to the issues, and subpoena requests;
4) what constitutes the official record; and
5) the manner in which the Appeals Council considers additional evidence.
     Expect these to appear in the Federal Register shortly and to become effective before inauguration day. And to respond to a question someone raised, no, you won't be able to see the final version of this until Social Security sends it over to the Office of Federal Register.


Anonymous said...

I still believe that the 5-day rule should require a modification of the effective date of Unfavorable Decisions -- for purposes of second applications -- to be the date of the hearing when evidence was closed, and not the date of the decision.

I have judges in my ODAR with unwritten decisions from June 2015 -- not 2016 but 2015. It is unconscionable for a claimant to be unable to submit evidence for a period of 1 1/2 years (during which time there could be surgeries, car wrecks, new impairments, etc., even death)and yet be bound by the later date of decision, not date of hearing.

Anonymous said...

your remedy in that situation is a new app with new and material evidence for the prior adjudicated period so as to reopen the prior decision and get an earlier onset within the period.

Anonymous said...


As the proposed rules were written, it is arguable that you can submit evidence post-hearing as the new rule only requires all available evidence be submitted 5 days prior to the hearing. Post-hearing evidence is not directly addressed by the rules and I have no intention of holding back post-hearing evidence.

Anonymous said...

@7:08AM. Have you ever seen a state agency reopen a prior adjudicated period by an ALJ? In my 20 plus years, I never have. Thus your proposed remedy is no remedy at all.

Anonymous said...


I have seen a few, however it might be due to my location in the Ninth Circuit. AR 97-4(9) explicitly states a change of circumstances precludes application of res judicata if there has been a change in circumstances (age category, increase in severity, documentation of an impairment not previously considered, or a change in the criteria of disability).

As it is not especially rare for a few local ALJs to fail to consider a higher age category, or (more rarely) to consider a severe impairment entirely, arguing AR 97-4(9) allows reopening of a prior adjudication period at times.

It is always refreshing to see a subsequent claim's ALJ to explain why the prior ALJ's decision is not binding.

AR 00-1(4), AR 98-3(6), and AR 98-4(6) appear similar, however there is no SSR published. Reopening is difficult, but certainly not something to be written off as impossible, particularly if you are in the 4th, 6th, or 9th circuits.

Anonymous said...

An ALJ does not even have to address a request to reopen and it is not even a reviewable decision.

Amishboy51 said...

"An ALJ does not even have to address a request to reopen"?

That's news to me. Unless my decision for the PIQ is unfavorable, rendering the request moot, I always believed that potential reopening had to be addressed, even if not explicitly requested.

Anonymous said...

Sure, the decision to reopen is the ALJ's to make and is not reviewable. But our internal policy very much says we have to address any (express or implied via an AOD in a prior adjudicated period) request for reopening. Yet again, it's bad judges and/or writers making it so for you, and I'm sorry.

Athena said...

An express request for reopening has to be addressed; an implied request (i.e. alleging disability onset during a previously adjudicated period) does not need to be addressed if an unfavorable decision is being issued. HALLEX I-2-9-10

Anonymous said...

Claimants who really can't work (or who are convinced they can't) will just file new claims with the excluded evidence from the prior claim anyway. Arguably the prior decisions will not even have preclusive effect because there will be new facts to consider in their subsequent claims (the excluded evidence from the prior claim) and therefore no res judicata. That analysis is totally independent from repopening. This evidence excluding rule does not increase overall agency efficiency. It will force the agency to duplicate efforts in many claims when the new claims and AC requests for review come rolling in following ALJ denials based on excluded evidence. However it will penalize the heck out of some claimants. Loss of 2-3 years worth of benefits just because you didn't understand or had trouble getting evidence in 5 days before a hearing is pretty draconian. Merry Christmas, ALJ Union. Condolences, claimants.

Anonymous said...

Where can I find judges who follow HALLEX? The AC certainly doesn't care about it. And the Commissioner argues that it's harmless to the courts, except when they argue it doesn't even bind them at all.

Anonymous said...


I've never seen the former, always the latter.

Anonymous said...

The practical effect of the five day rule will be far more requests for postponement both requested and granted and far more supplemental hearings. Just adds more inefficiency to an already inefficient system. It will make it worse and not better. No one thinks these things through, do they? An ALJ holding a hearing and them holding the record open for a bit of recent evidence is pretty innocuous. it adds a week or 3 to case disposition. But, if there is pressure on the ALJs to hold hard and fast to the 5 day rule, I foresee many hearings being postponed by request of attorney or ALJ due to "duty to develop" issues. That could also be in the form of an initial hearing becoming a "pre-hearing conference" with a second hearing, etc. Or we will be seeing many more requests for and supplemental hearings. A rep is fully required to inform the ALJ of any and all evidence. A rep is going to ask that the record be held open if it occurs. How tolerant do you think the courts are going to be seeing cases where the ALJ had knowledge of evidence at hearing that could be case dispositive and made the choice to deny without it. How would that be compatible, reasonable with the ALJ duty to develop. NOT! The five day rule is silly and will lengthen the calendars of good judges. Difficult judges who apply it with hostility are going to have to deal with a new docket of remands. silly.

Anonymous said...

9:02AM is spot-on. The five day rule, “Just adds inefficiency to an already inefficient system. It will make it worse and not better.”

What is so utterly infuriating is the continued incompetence of the top Agency officials who promulgated these rules. Over the past few years, regular readers of this blog have witnessed these top Agency officials make one blunderbuss decision after another under the guise of improving Agency efficiency and reducing the backlog only to watch each and every one backfire, just as we predicted, e.g., Agency centralization, (completely unnecessary – having local field office decision writers and support staff much more efficient); the pseudo emphasis on quality over quantity of decisions issued when, in reality, quantity and meeting production quota’s has been the ONLY employee/ALJ performance recognized; mandating detailed, burdensome, typed ALJ decision writing instructions, which ONLY impedes (markedly slows down) the pace of ALJ’s and talented Attorney decision writer’s; the SA Adjudication Team of ONLY 20 some odd SA’s who must relocate to Falls Church (like that is really going to make a difference in the backlog); the disastrous AJ program, while ignoring the statistical success of the original STDP Senior Attorney Program in reducing the backlog and the numerous Senior Attorney’s in ODAR field offices nationwide who could have immediately been utilized to restart the STDP Senior Attorney Program; and overly zealous emphasis on data analytics, i.e., numbers manipulation, which has done nothing to reduce the backlog.

In addition, you cannot ignore the rampant illegal Prohibited Personnel Practices these top Agency officials encourage subordinate managers to engage, and then actively help to cover-up and protect said managers from any accountability whatsoever. This runs the whole gambit of discriminatory practices, especially SYSTEMIC discrimination against those with disabilities; illegally forcing good career employees out of their jobs for no reason; promoting favorites up through the chain of command, so you end up with like-minded management officials who massage one another’s backs, and take turns awarding each other ridiculously high, unearned bonuses; illegal retaliation, which currently is unbridled across ODAR nationwide, etc.; and an Acting Commissioner who has bent over backwards to protect these top Agency officials from being held accountable for their repeated failed management, inability, or outright refusal to run the Agency efficiently, not to mention their misconduct and wrongdoing. It’s long overdue for these Agency management officials to leave.

Anonymous said...

We'll see what the final regs say when they are published. If they didn't make significant changes it will be another burden on the system, and another way a person with a legitimate claim can get screwed by the system.

Anonymous said...

After reviewing the new rules I see two notes in explanatory materials:

"In addition, we note that 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." (page 16)

Also: "However, our final rule contemplates that some circumstances may warrant the introduction of new evidence at or after the hearing, and includes an “inform” option...." (Page 17)

Does this mean that as long as we notify ALJ of evidence by 5 days before hearing, we can submit after the 5 day deadline?

Also, the following note: "While it is true that, in many cases, an ALJ adjudicates the case through the date of the hearing decision, our rule is not intended to prevent a claimant from submitting evidence related to ongoing treatment. Rather, we expect that evidence of ongoing treatment, which was unavailable at least 5 business days before the hearing, would qualify under the exception in 20 CFR 404.935(b)(3) and 416.1435(b)(3)." (Page 15)

Does this mean we can update the record after the hearing with new evidence and also submit new evidence to the appeals council, as long as evidence is dated after the 5 day deadline?