The 5 Business Day Evidence Rule

Before May 1, 2017, persons receiving notice of a scheduled hearing before an administrative law judge were advised to submit written evidence before the hearing. They were also advised that if they were unable to submit the evidence before the hearing, they could bring the evidence to the hearing. Based on 20 C.F.R. 404.935 and 416.1435 [51 FR 303, Jan. 3, 1986] the notice provided:

Beginning May 1, 2017, the Commissioner of Social Security has revised the rules which deal with the submission of evidence at an administrative hearing. These changes are codified at 20 C.F.R. 404.935 and 416.1435. The changes require the person who is requesting a hearing to “make every reasonable effort to ensure that the administrative law judge receives all of the evidence.” These regulations add that the person seeking a hearing “must inform” the administrative law judge about the evidence or submit any written evidence “no later than 5 business days before the date of the scheduled hearing.” The notices for a hearing now, based on 20 C.F.R. 404.935 and 416.1435 [81 FR 90993, Dec. 16, 1016] read as follows:

You are required to inform us about or submit all evidence known to you that relates whether
or not you are blind or disabled. Your representative must help you inform us about or submit
the evidence, unless the evidence falls under an exception. If you are aware of or have
more evidence, such as recent records, reports, or evaluations, you must inform me
about it or give it to me no later than 5 business days before the date of your hearing. If
you do not comply with this requirement, I may decline to consider the evidence unless
the late submission falls within a limited exception.
If you missed the deadline to inform us about or submit evidence, I will accept the evidence if
I have not yet issued a decision and you did not inform us about or submit the evidence before
the deadline because:
1. Our action misled you;
2. You had a physical, mental, educational, or linguistic limitations) that prevented
you from informing us about or submitting the evidence earlier, or;
3. Some other unusual, unexpected, or unavoidable circumstance beyond your control
prevented you from informing us about or submitting the evidence earlier.

These changes were made in an effort to address what the Commissioner deemed as “unprecedented workload challenges.” The concern was that if the evidence was not complete at the time of the hearing, a postponement may result. The 5 day evidence rule was designed to alleviate that concern.

However, on October 4, 2017, the Commissioner “clarified” the new 5 day rule regulations by the creation of SSR 17-4p [82 FR 46339, Oct. 4, 2017]. This Ruling requires that evidentiary evidence must be submitted as soon as practicable. In other words, a person may not wait until 5 business days to submit the evidentiary evidence. Rather, they must submit the evidence as soon as they have the evidence. If the person becomes aware of the evidence then that person must inform SSA about the evidence when that person becomes aware of it. It is important to note that “just” informing SSA about the evidence alone, without submitting the evidence, is not sufficient. When a person only informs SSA about evidence then the person must demonstrate that he/she was not able to obtain that evidence “despite good faith efforts.”

When the 5 business day rule became effective, the common belief was that as long as the person either informed SSA or submitted the evidence within the 5 business days, the person complied with the regulations. However, considering the revised regulations and the Ruling, the practical take away is the evidence must be submitted at the earliest possible time but not later than 5 business days before the scheduled hearing. If a person learns of the evidence before the hearing, then notice of the evidence should be submitted to SSA.