New Regulations Governing Social Security Disability Hearing Preparation and Case Processing

Social Security published its final “program uniformity” regulations on December 16, 2017.  https://www.gpo.gov/fdsys/pkg/FR-2016-12-16/pdf/2016-30103.pdf

SSA’s stated goal in making these changes is to “ensure national consistency in our policy and procedures and improve accuracy and efficiency in our administrative review process.”

Social Security Disability - New Regulations Take EffectThe rules substantially change Sections 404.935 & 416.1435 of 20 C.F.R. (Submitting evidence prior to the hearing before an administrative law judge). Unrepresented claimants and their representatives must submit evidence, or inform SSA about it, at least five business days from the hearing unless an exception applies. Unless an exception applies, the ALJ may decline to consider or obtain the evidence.

Examples of exceptions appear at 20 C.F.R. §§ 404.935(b)(3) & 416.1335(b)(3) and include:

  • serious illness,
  • death or serious illness in the immediate family,
  • important records were destroyed or damaged by fire or other accidental cause, or
  • the claimant actively and diligently sought evidence from a source and the evidence was not received or was received less than five business days prior to the hearing.

SSA stated that these changes will not relieve adjudicators of their responsibility to make decisions based on the evidence presented at hearings. SSA believes the change will promote both efficiency and fairness, citing experience in the Boston region.

SSA also amended 20 C.F.R. §§ 404.939 & 416.1439, 404.949 & 416.1449, and 404.950(d)(2) & 416.950(d)(2) to include exceptions to the deadlines for objecting to issues at a hearing, presenting written statements, and requesting subpoenas. Subpoenas must be requested at least ten business days before the hearing date, as opposed to the five-day timeframe in the current regulations. The five-day requirement does apply to objections to the issues and written statements. But SSA clarified that the five-day requirement only applies to pre-hearing written statements, not to post-hearing statements. And SSA states that the exceptions could be relied upon to submit rebuttal evidence if an ALJ introduces new evidence at or after the hearing.

SSA did agree to provide at least 75 days’ notice of a hearing.   20 C.F.R. §§ 404.938 & 416.1438.

The new regulations also affect cases at the Appeals Council. The AC will consider new and material evidence that relates to the period on or before the date of the hearing decision only if there is a reasonable probability the evidence would change the outcome of the hearing decision. 20 C.F.R. §§ 404.970(a)(5) & 416.1470(a)(5). The AC regulations have also been amended to provide the Appeals Council will only consider new evidence if the claimant shows good cause for not informing SSA or submitting it in accordance with 20 C.F.R. §§ 404.935 & 416.1435. See 20 C.F.R. §§ 404.970(b) & 416.1470(b). The good cause exceptions are repeated in the Appeals Council regulation.

These new regulations will undoubtedly create new burdens and hassles for claimants and representatives already struggling to get evidence in a timely fashion. However, simply informing the ALJ of new evidence within the time frame should be sufficient to comply with the new requirements as SSA specifically states: “In addition, we note that if a claimant informs an ALJ about evidence 5 or more days before the hearing, there would be no need for the ALJ to find that an exception applies, because the claimant notified us prior to the deadline.”

The new rules became effective on January 17, 2017, and compliance is required by May 1, 2017.

If you or someone you love is fighting for Social Security disability benefits, give us a call at Louisiana Disability Law.  We have the experience to guide you through this difficult process and help you understand these new changes.

Loyd J. Bourgeois
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Disability and Personal Injury Attorney
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