The Social Security Administration (“SSA”) has recently enacted a new rule that requires all evidence be submitted 5 days before the court hearing. The new rule is called the Five Day rule. If you or your loved is going through the process of obtaining the SSD benefits, then the SSA has likely sent you a letter explaining this new 5 day rule change.
Sadly, this is another rule that only hurts claimants. The rule states that if you do not submit evidence 5 days before court, the judge does not have to consider the evidence. This means that if a doctor or hospital does not get records to the law firm representing the claimant, the judge can just disregard the evidence.
In most courtrooms (criminal or civil type cases) the evidence for the case appears the day of the trial and the court routinely allows the evidence to be submitted. This happens more in Social Security Disability(SSD) cases than any other type of case, because a claimant’s treatment often continues up to and past the date of the hearing. Claimants will always have additional medical records because their treatment is ongoing and this rule allows judges to disregard evidence not submitted 5 days before the hearing.
The new 5 day rule is especially problematic for claimants who live in Illinois because the Illinois medical records are more convoluted than all of the other states. In Illinois, to obtain medical records the party requesting the records first sends a written request for the medical records. The medical records provider does a search and can charge a fee of $26.58 for the search. Typically, the medical records provider will then send a bill for the $26.58 for this search. The bill tells the requesting party if they have medical records and how much they are going to charge for a copy of the records. Then the requesting party sends a check for the search fee and the records.
The statute currently allows for $1.00 for the first 25 pages, then $0.66 per page from pages 26 to 50. Then for pages 51 and over they can charge $0.33 per page. Once upon a time in Illinois a party requesting medical records could just send a written request for medical records and then the medical records providers would send a bill with the records.
Records get submitted late in so many circumstances because it is almost impossible to keep the records up to date. Typically at my office we order the records the same day we receive notice of the date of a claimant’s hearing. One of the major problems is there is no uniformity in how long it takes to obtain records from providers. Sometimes the records come in a week and sometimes it takes 4 months to get the records. If the records come in quickly, they could be out of date by 90 days by the time we get to court. I have seen judges state that if you the claimant has not been to the doctor in 90 days then the claimant must be better, and therefore, the judge will only award benefits for a period up until the records end.
There are three exceptions to the rule:
- The Social Security Administration misled you;
- You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing Social Security about submitting the evidence;
- Some other unusual, unexpected, or unfavorable circumstance beyond your control prevented you from informing Social Security about submitting the evidence earlier.
The SSA has received 154 comments about the rule change. In their response to the comments the SSA has stated that they have lengthened the required notice period for a hearing from 60 days to 75 days. This does nothing to solve the problem of the requirement of current records at the hearing. Also the SSA concludes that this does not shift the burden to the claimant’s to develop the record. This is exactly what the SSA is doing.
Are you applying for SSD benefits? Consider the Law Office of Neil H. Good for your representation. Call us toll-free at #(847) 577-4476 or complete this free online evaluation form here.