Effective May 1, Social Security issued a new rule that requires disability claimants who are headed to an appeal hearing before an administrative law judge (ALJ) to submit any new evidence, or at least tell the hearing office about it, at least five business days before the hearing, with certain exceptions (see below). This new rule is known as the “five-day rule.” The rule also applies to pre-hearing statements and any written objections you have to the issues to be decided at the hearing.
If you fail to follow the five-day rule and don’t have good cause, the ALJ may be able to refuse to consider the evidence. “Good cause” (a valid reason) for missing the five-day deadline includes a mental or physical limitation that prevented you from meeting the deadline or an unexpected or unavoidable circumstance (such as serious illness, a death in the family). Or if you had arranged a doctor’s appointment or requested records in a timely manner, but you didn’t receive the evidence in time, the judge should count this as good cause. If you miss the deadline, be sure to bring the evidence with you to the hearing. A judge is likely to accept evidence that you just received, such as new test results you received the day before the hearing.
In the past, disability claimants could bring any new or updated evidence with them to the hearing. Oftentimes this was necessary because, with only 20 days’ notice before the hearing, claimants were scrambling to get up-to-date records or clinical notes from last minute doctor appointments or tests, and could not submit them ahead of time. Along with the new five-day rule, Social Security has fortunately changed the required amount of notice before a hearing date to 75 days. (Previously, only the New England states had a 75-day notice requirement; this requirement was expanded to nationwide in the new rule released January 17, 2017.)
Social Security will soon be trying out an initiative to reduce the hearing backlog by asking disability claimants if they would like to voluntarily waive the 75-day notice requirement to be on a voluntary standby list. This will allow Social Security to fill hearing spots that have opened up due to cancellations. Whether the 5-day rule will apply to voluntary standby situations has yet to be decided.
As of October 1, the hearing office is changing its name from the Office of Adjudication and Review (ODAR) to the Office of Hearings Operations (OHO).