As we all know SSA needs a complete evidentiary record to make an accurate and consistent decision.  You and your claimant must provide evidence to support your claimant’s disability claim.  Thus, you must make a good faith effort to ensure that the ALJ has a complete record.  

Medical Evidence Requirements 

Under the Act, SSA cannot find that your client is disabled unless he/she furnishes such medical and other evidence the Commissioner may require.  Therefore, the statute places the primary responsibility for developing the medical evidence on your client. 

The 5-Day Rule

At the hearings level, a claimant generally must submit or inform SSA about written evidence at least 5 business days before his/her hearing. 

When and Why It was Enacted

In December of 2016, the 5-day rule was adopted.  The 5-day Rule was implemented in May of 2018.  It was enacted to address SSA’s workload challenges.  The Rule also attempts to reduce the number of hearing postponements because the records was not complete at the time of the hearing.  

Representatives Rules of Conduct and Standards of Responsibility

Your duty to submit evidence is a derivative of the claimant’s.  However, you must must also follow SSA’s rules of conduct and standards of responsibility for representatives. Those rules impose an affirmative duty on you to act with reasonable promptness to help obtain the evidence that the claimant must submit and forward it to SSA as soon as practicable. You also have an affirmative duty to assist your client in complying, as soon as practicable, with any requests for evidence.

Additional Requirements for Representatives

While the regulations state that you must submit or inform SSA of all written evidence at least 5 business days prior to a hearing, the rules of conduct go further.  Under the rules of conduct, you are:

1) required to act with reasonable promptness to help obtain evidence the claimant must submit; 

2) required to assist the claimant in complying with our requests for evidence as soon as practicable; 

3) prohibited from unreasonably delaying or causing a delay of the processing of a claim without good cause; and 

4) prohibited from actions or behavior prejudicial to the fair and orderly conduct of administrative proceedings.

Exceptions to the Rule

Therefore, you cannot wait until 5 business days before the hearing to submit or inform the ALJ about written evidence.  However, there is one exception to the rule.  The exception comes in only when you have a compelling reason for the delay.  What is a compelling reason?  Simply said, it must have been impractical for you to submit the evidence earlier because:

  1. The evidence was difficult to obtain, or
  2. You were not aware of the evidence at an earlier date.  

In other words, it is only acceptable for you to inform the ALJ about evidence without submitting it if you can shows that, despite good faith efforts, you could not obtain the evidence 5 business days before the hearing. 

Consequences of Not Complying with the 5-day Rule

Simply informing the ALJ of the existence of evidence without providing it or waiting until 5 days before a hearing to inform us about or provide evidence when it was otherwise available could be found to violate SSA’s rules of conduct and could lead to sanction proceedings against you.

How to Stay on Top of the 5-day Rule

With Disability Data Manager you can easily keep track of records you have requested and submitted.  Our Social Security Disability Case Management Software gives each client has their own Records Request tab.  There you can keep track of the records requested, received, and submitted. You can upload and store the related records in our disability case management software as well.

To help you prove the evidence was difficult to obtain you must be able to show when you requested the records and how you have given a good faith effort to receive them.  Therefore, we have incorporated an email alert feature into our disability client data software so you will be sent to an email, 10 days prior to a hearing, if a record has been requested but not received. Alerting you and giving you plenty of time to follow up with the medical provider or submit a 5-day letter if necessary.