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.)
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.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).
