the final countdown: living or dying with the five-day...

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The Final Countdown: Living or Dying with the Five-Day Rule

Douglas Mohney, Esq.

Michael Sexton, Esq.

The Final Countdown: Living or Dying with the Five-Day Rule Section O

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CASE LAW ACT, REGULATIONS, RULINGS, HALLEX, POMS

Region 1 Pilot Program—Case Law

Savo v. Astrue, U.S.D.C., D. CT, 2011 WL 5025488, 171 Soc.Sec.Rep. Serv 182, 10/21/11.

ALJ has affirmative duty to fully develop a complete medical record in non-adversar-ial hearings. ALJ purposely & w/o reason excluded evidence suggesting a worsen-ing of the condition because the records were sent in late. Courts may order the Commissioner to consider additional evi-dence if it is new and material, provided there is good cause for the failure to incor-porate such evidence into the preceding. The evidence must satisfy three require-ments. First, the evidence must be “new and not materially cumulative of what is already in the record.” Second the evi-dence must be “both relevant to the [plain-tiff’s] condition during the time period in which benefits were denied[,] and proba-tive.” Third, the plaintiff must demonstrate “good cause for the failure to present the evidence earlier”. For example, the new evidence contradicts the ALJ’s findings of medical improvement and it is possible a different conclusion would be made had the ALJ considered the late records. Good cause was shown as the records were

20 CFR §§404.935 & 416.1435, effective January 17, 2017, with compliance not required until May 1, 2017.

(a) When you submit your request for hear-ing, you should also submit information or evidence as required by §§404.1512, 416.912 or any summary of the evi-dence to the administrative law judge. Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in §§404.1512, 416.912 no later than 5 business days before the date of the scheduled hear-ing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence, unless the circumstances described in paragraph (b) of this sec-tion apply.

(b) If you have evidence required under §§404.1512, 416.912 but you have missed the deadline described in para-graph (a) of this section, the administra-tive law judge will accept the evidence if he or she has not yet issued a deci-sion and you did not inform us about or submit the evidence before the dead-line because:

The Five Business Day Evidence Rule

Carol AvardDouglas Mohney, Esq.Michael Sexton, Esq.

Section O NatioNal Social Security DiSability law coNfereNce

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received the same day they were sent to the ALJ, and only 7 days after claimant’s surgery, so it was impossible to submit them within the 5-day period. It would be a miscarriage of justice to exclude this evidence.

Black v. Astrue, No. 1:10-cv-175-JAW, 2011 WL 1226027 (D.Me. March 29, 2011). Late evidence submitted after the hearing, and before the decision, must have a reasonable possibility that it would affect the outcome of the claim (405.331(c)). Before 5 days of hearing date, Attorney informed the ALJ of a PRTF of Dr Fine that he met the “B” criteria with marked ADLs and social functioning, but he had no verification the form had been filed. The PRTF was incomplete, as the “C” criteria was not filled out. ALJ did not allow admission as doctor had treated claimant for a long time, and counsel provided no extant circumstances preventing timely submission. 405.331(b).

Howe v. Colvin, 147 F. Supp 3d 5 (U.S.D.C., D. RI), Dec. 4, 2015. ALJ abused her discretion rejecting treating doctor’s RFC questionnaire submitted late, i.e.,4 days before hearing, where it was criti-cal to the determination of disability, and late due to clerical error (document got attached to another document), and ALJ never explained her rationale for rejecting the document (405.331(a)). ALJ refused to let attorney cross-examine ME based on record not accepted. There is no ALJ discretion to refuse evidence if unusual circumstances caused the delay. The Social Security Act is construed liberally to further remedial purposes. Proceedings are not strictly adversarial. Secretary bears a

(1) Our action misled you;(2) You had a physical, mental, edu-

cational, or linguistic limitation(s) 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. Examples include, but are not limited to:

(i) You were seriously ill, and your illness prevented you from con-tacting us in person, in writing, or through a friend, relative, or other person;

(ii) There was a death or serious ill-ness in your immediate family;

(iii) Important records were destroyed or damaged by fire or other accidental cause; or

(iv) You actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing.

[81 FR 90993, Dec. 16, 2016]

You should submit information or evidence as required by §§404.1512, 416.912 or any summary of the evidence to the administra-tive law judge with the request for hearing or within 10 days after filing the request, if possible. Each party shall make every effort to ensure that the administrative law judge receives all of the evidence or all of the evidence is available at the time and place set for the hearing.


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responsibility for adequate development of the record. The clerical error was rectified before the hearing. This violates the tenets of the Act, and raises form over substance. Statute not meant to be applied rigorously or rigidly. Regulatory standard for clerical error is much more like one of “excusable neglect” in common law and FRCP. As Supreme Court held in context of bankrupt-cy: the determination is an equitable one, taking account of relevant circumstances, prejudice to applicant, length of delay, impact on proceedings, reason for delay, whether it was within reasonable control of movant, whether movant acted in good faith (See Pioneer Inv. Servs. v. Brunswich Assoc., 507 U.S.380, 395 (1993).

Raymond v. Astrue, No. 1:12-cv-92-DBH, 2012 WL 6913437 (D.Me. Dec. 31, 2012). Lack of memory alone is not sufficient rea-son to prevent submission of evidence 5 days before the hearing.

Caiazzo v. Colvin, No. 2:13-cv-155-JAW, 2015 WL 1569529. U.S.D.C. D., Me, March 30, 2014. Untimely proffered evi-dence was not excused from 5 day rule because telling the administrative law judge that the delay resulted from the fact that Dr. Ervin’s office “inexplicably sent the completed assessment to the wrong fax number repeatedly.” This was not unavoidable and could have been pre-vented, and claimant was represented by counsel. Timely inquiry to doctor’s office should have been made. And, the doctor’s opinions were consistent with other treat-ing sources.

[80 FR 14835, Mar. 20, 2015]

HALLEX I-2-6-56 LU 8/2/16 under 205(b) and 1631(c) of the Act, an ALJ must base the deci-sion on “evidence adduced at the hearing”.

§§404.944, 416.1444. ALJs will look fully into issues and accept as evidence any documents material to the issues. HALLEX I-2-6-56: ALJ has a duty to ensure the record is fully and fairly developed and will make reasonable attempts to obtain evidence.

HALLEX I-2-5-1 LU 5/1/17. If a repre-sentative has a pattern of not submitting evidence that relates to the claim, or if the claimants of a particular representa-tive develop a pattern of not submitting evidence to us or not informing us about evidence that relates to their claims, an administrative law judge (ALJ) will consider whether circumstances warrant a referral to the Office of the General Counsel (OGC) as a possible violation of our rules. See HALLEX I-1-1-50 LU 12/16/13 for instruc-tions on making referrals to OGC.

HALLEX I-2-5-1 LU 5/1/17. At the hearings level, a claimant generally must inform SSA about or submit evidence, as required in 20 CFR §§404.1512 and 416.912, no later than five business days before the date of the scheduled hearing. If the claimant informs the agency about or submits evi-dence less than five business days before the date of the scheduled hearing, at, or after the hearing, the ALJ may decline to obtain or consider the evidence, unless the circumstances in 20 CFR §§404.935(b) and 416.1435(b) apply (see HALLEX I-2-6-58 LU 5/1/17 and I-2-6-59 LU 5/1/17).


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Cardoso v. Colvin, Civil Action No. 13-12296 FDS, 2014 WL 3735242, U.S. D. C., D. Ma, July 25, 2014. Submitting chiropractic notes 3 days before the Jan. 12, 2012 hearing when last treatment ended February 2011 shows that an excep-tion to 5 day rule would not apply and ALJ was justified in refusing to admit the notes. However, it was unavoidable that the MRI and CT results were not yet available at time of hearing. AC also justified in not finding ALJs action, findings, or conclu-sion contrary to the weight of the evidence as there was no showing the chiropractic notes were sufficient to make the ALJ’s find-ing contrary to the weight of the evidence. Also, there was no evidence claimant could not have submitted the evidence to the ALJ earlier. And, there was no indica-tion the notes would give rise to a “reason-able probability” that the outcome of the decision would be reversed, as the notes were consistent with the rest of the record.

Barker v. Colvin, U.S.D.C., D. Me., May 20, 2014. Not Reported in F.Supp.2d 2014 WL 2095174, 203 Soc.Sec.Rep.Serv. 303. Plaintiff was represented by an Attorney and ALJ gave counsel 7 days to obtain a statement from Dr. Corsello. Counsel submitted a set of questions to the doctor the following day, and he and claimant checked with the doctor nearly every busi-ness day but still was not able to obtain the statement timely. Held: ALJ’s finding the records could have been submitted timely was not supported by substantial evidence.

Passafiume v. Commissioner of Social Sec., U.S.D.C., N.D. Ohio, Eastern Division. November 15, 2012 Not Reported in

To determine whether the circumstances in 20 CFR §404.935(b) and §416.1435(b) apply, see HALLEX I-2-6-59 B.

Definition of business days: HALLEX I-2-5-1 LU 5/1/17, Note 3, it is a weekday, excluding federal holidays, it ends at 11:59PM. See also HALLEX I-2-6-59, for procedures to follow.

HALLEX I-2-6-58 (LU 5/1/17) requires ALJs to identify evidence and explain the reason for not considering it when it is submitted less than 5 business days before the hear-ing or after the hearing. The reasons can be provided on the record at the hearing, in a written ruling that the ALJ exhibits, or in the ALJ’s decision. If duplicative evidence, ALJ does not have to explain the reason but must identify it as duplicative in the claim(s) file.

Prior ALJ decisions must be associated with the current claim file (see HALLEX I-2-1-13 LU 5/26/17 explaining how an ALJ deter-mines what evidence from a prior file will be included).

If the ALJ is informed about evidence 5 business days before the hearing, but the evidence is not submitted, the ALJ will fol-low HALLEX I-2-5-13 and will consider the evidence regardless of whether the circumstances in 20 CFR §404.935(b) and §416.1435(b) apply. The evidence will be admitted into the record if it is mate-rial (See HALLEX I-2-5-13). Evidence is material if it is relevant, i.e., is related to issues being adjudicated (e.g., work in last 15 years; severe impairment; within 12 months of onset date; dated on or after application date; and dated within time


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F.Supp.2d 2012 WL 5611501. In submit-ting Dr. Tomsik’s Medical Source Statement to the ALJ, Passafiume’s attorney wrote the following:

I apologize for the late sub-mission, however, it was brought to my attention after the hearing. I have attached pictures of his knee dem-onstrating the extent of the damage that was done by his previous surgeries. I have included a Medical Source Statement regarding his physical ability to do work-related activities. I believe that this assessment is con-sistent with my argument that Mr. Passafiume cannot sustain work-related activi-ties, especially in light of Dr. Townsend’s notations that the claimant has frequent falls, pain, exacerbations, and would need extra breaks.

Arguably, the cover letter to the ALJ dem-onstrated a reasonable possibility that the evidence, alone or when considered with the other evidence of the record, would affect the outcome of Passafiume’s claim. But the letter does not satisfy any of the additional requirements of § 405.331 for submitting evidence after the hear-ing. Particularly given the fact that Dr. Tomsik was Passafiume’s treating physician, Passafiume does not explain why circum-stances beyond his control prevented him from submitting such a Medical Source Statement earlier. Thus, because Passafiume did not meet the requirements at § 405.331

period covered by a prior application that may be subject to reopening).

HALLEX I-2-6-59 LU 5/1/17, evidence less than 5 business days before hearing or at or after the hearing. If it is untimely evidence, but before the hearing decision, ALJ will accept it if circumstances in §§404.935(b), 416.1435(b) apply: SSA misled claimant; claimant had physical, mental, education, linguistic limitations preventing informing SSA about or submitting the evidence; or unusual, unexpected, or unavoidable cir-cumstances beyond claimant’s control pre-vented submitting evidence earlier. (E.g., seriously ill, death in family, important records destroyed/damaged by fire or acci-dental cause; or they actively and diligently sought evidence and it was not received).

Untimely evidence sent in after the decision. ALJ will forward it to the Appeals Council (AC) if a Request for Review was filed (RR). If RR not filed, ALJ may either consider revising decision or return the evidence to claimant saying the record is closed, but claimant may request review by AC.

ALJ will accept and mark as exhibits untimely records, even if not informed about them, if §§404.935(b), 416.1425(b) applies,. If ALJ does not find the regs applies, it will not be exhibited and ALJ will explain the reason for not considering the evidence (provid-ing reasons on the record at hearing, in a written ruling, or in decision. ALJ may state “claimant did not establish a reason under [§§404.935(b), 416.1435(b)] for informing or submitting it within the time frames (address-ing any specific reason raised by the claim-ant). (see HALLEX I-2-8-25 LU 5/1/17 about writing the decision).


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in submitting Dr. Tomsik’s assessment after the hearing had concluded, the ALJ was not required to consider that assessment in his opinion. Passafiume’s argument to the contrary is not well-taken.

Simard v. Colvin, U.S.D.C., D. NH, October 21, 2016 Slip Copy 2016 WL 6135444, 2016 DNH 186.

There was no discussion about whether those documents could have been obtained earlier and what efforts counsel undertook (or could have undertaken) to obtain them in a timely way. Consequently, claimant failed to sustain his burden to demonstrate that there was some “unusual, unexpected, or unavoidable circumstance” beyond his control that prevented timely submission of those documents. See, e.g., Raymond v. Astrue, No. 1:12–CV–92–DBH, 2012 WL 6913437, at *2 (D. Me. Dec. 31, 2012) (“[Claimant] offers nothing beyond his lack of memory as the necessary “unusual, unexpected, or unavoidable circumstances beyond [his] control.” That is not enough to meet this rather rigorous standard. The rule itself says that the administrative law judge may decline to consider such evidence, 20 C.F.R. § 405.331(a), and the plaintiff has shown no abuse of that discretion here.”), aff’d, No. 1:12–CV–92–DBH, 2013 WL 214569 (D. Me. Jan. 18, 2013).

Parenthetically, the court notes that the district courts in this circuit seem to dis-agree as to the precise nature of the bur-den imposed upon claimants by section §405.331. As noted above, those in Maine have described the claimant’s burden as “rather rigorous,” while those in Rhode

§404.702 & §404.1502 Definitions: “We” or “Us” means Social Security Administration or State agency making the disability determination.

§404.704 “You” will be responsible for obtaining and giving evidence to us.

§404.705, “ . . . you will be asked to give us by a certain date . . . evidence . . . to prove you are eligible for benefits. . . . let us know if you are unable to give us . . . evidence . . . If . . . delay is due to illness, failure to receive timely evidence you have asked for from another source . . . you will be given additional time.”

§404.l512 (b)(c)&(d) & §4l6.912(b)(c)&(d) “Our responsibility”—before making a determination that you are not disabled (emphasis added), we develop a complete medical history for at least 12 months pre-ceding the month claimant files the appli-cation unless there is reason for an earlier period. We will make every reasonable effort to help you get medical reports.

Every reasonable effort means between l0 and 20 days after the initial request, if evi-dence has not been received, we will make one followup request to get the evidence. The medical provider only has l0 days from the date of the followup request to reply, unless the source indicates a longer period is advisable. This includes 12 months prior to the Date Last Insured.

“Complete medical history” means records . . . covering at least . . . 12 months preced-ing the month in which you file . . .”


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Island have held it is less demanding and analogized it to “excusable neglect.” Compare Raymond v. Astrue, No. 1:12–CV–92–DBH, 2012 WL 6913437, at *2 (D. Me. Dec. 31, 2012) with Howe v. Colvin, 147 F. Supp. 3d 5, 8 (D.R.I. 2015). This court need not weigh in on that issue since, even giving claimant the benefit of the lighter burden, it is plain he failed to meet it.

Of course, the ALJ was present when coun-sel was discussing the late-filed exhibits and certainly could have—and probably should have—developed the record on this matter. See generally Heggarty v. Sullivan, 947 F.2d 990, 997 (1st Cir. 1991). The ALJ could have inquired into the reason(s) behind the delay in filing those documents and fleshed out whether claimant could, or could not, meet his burden under 20 C.F.R. § 405.331(b). Nevertheless, even if the ALJ had erred by failing to develop the record, and even if he did ultimately err by excluding the docu-ments at issue, that error was harmless. See, e.g., Lemire v. Colvin, No. CV 15–331L, 2016 WL 3166836, at *10 (D.R.I. May 4, 2016) (holding that, “Even assuming that the ALJ erred by not accepting the late-tendered records, a review of the records reveals that any such error is plainly harmless”), report and recommendation adopted, No. CV 15–331L, 2016 WL 3167077 (D.R.I. June 6, 2016); Wilner v. Astrue, No. 2:11–CV–21–GZS, 2012 WL 253512, at *2 (D. Me. Jan. 26, 2012) (“I conclude that the new evidence to which the plaintiff points was cumulative and that the new evidence, as a whole, did not consistently support her claim. Its exclusion, thus, was harmless.”), aff’d, No. 2:11–CV–21–GZS, 2012 WL 484049 (D. Me. Feb. 14, 2012).

“Your responsibility” is to inform us about or submit all evidence known to you that relates to whether or not you are . . . disabled

(Use these regulations to define “reason-able effort” to get the meds. And, use these regulations to show that the Government also has a duty to get the medical records).

§§404.936 (a), 416.1436 (a). ALJ may adjourn or postpone the hearing or reopen it to receive additional evidence any time before notifying you of a hearing decision.

§§404.941, 416.1441 if additional evi-dence is submitted, or if there is an indica-tion that additional evidence is available, a prehearing case review may be conducted and forwarded to State agency to revise the determination. It may be fully or par-tially favorable.

§§404.944, 416.1444. The ALJ looks fully into the issues, subject to 404.935: Accepts as evidence any documents material, may continue the hearing to a later date if material evidence is missing, may stop the hearing and reopen the hearing at any time before mailing the decision in order to receive new and material evidence.

§§404.949, 416.1449. Written statements must be presented no later than 5 business days before the date of hearing.

§§404.950(d), 416.1450(d). Subpoena requests must be submitted 10 business days before the hearing stating facts that document or will prove why these facts could not be proven w/o a subpoena.


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The materials claimant submitted to the ALJ after the hearing were accompanied by a cover letter that provided little explanation for why some “unusual, unexpected, or unavoidable circumstance beyond [claim-ant’s] control” prevented their timely sub-mission. 20 C.F.R. § 405.331(c)(3). Nor did that letter include any statement attempting to demonstrate that there was a “reasonable possibility” that the included material would affect the outcome of claimant’s applications for benefits. See id. at § 405.331(c). Given those undisputed facts, the court cannot conclude that the ALJ erred (or abused his discretion) when he determined that claimant failed to carry his modest burden of demonstrating entitlement to submit the challenged mate-rials in an untimely manner. See generally Lemire v. Colvin, No. CV 15–331L, 2016 WL 3166836, at *10 (D.R.I. May 4, 2016) (holding that the claimant failed to meet the burden imposed by § 405.331, which it noted was similar to the “excus-able neglect” standard); Dax v. Colvin, No. 1:15–CV–21–JHR, 2015 WL 9473405, at *2 (D. Me. Dec. 28, 2015) (holding that absent a showing that the materi-als in question might result in a differ-ent outcome on the merits of claimant’s applications, the ALJ did not err in exclud-ing late-submitted evidence); Freeman v. Colvin, No. 2:14–CV–412–JHR, 2015 WL 4041733, at *3 (D. Me. July 1, 2015) (“The only justification supplied to the adminis-trative law judge, in either the cover letter transmitting the materials or at the hearing, was that the plaintiff had ‘some difficulty’ getting the records and had submitted them immediately when they did finally arrive. This showing was patently insufficient to satisfy the rather rigorous standard of sec-tion 405.331(b)(3).”) (citation omitted).

§§404.957, 416.1457. ALJs cannot dismiss a request for hearing based on submis-sion of evidence that did not meet the 5 day rule.

§§404.960, 416.1460. An erroneous dis-missal can be vacated by an ALJ or AC if requested w/in 60 days.

§§404.961, 416.1461. A prehearing or post hearing conference may be scheduled to facilitate the hearing or hearing decision.

HALLEX I-2-5-13(A)LU 5/1/17 (note 2), states that “[i]f a representative has a pat-tern of informing SSA about evidence that relates to the claim instead of acting with reasonable promptness to help obtain and forward the evidence to SSA, an ALJ will consider whether circumstances war-rant a referral to the Office of the General Counsel (OGC) as a possible violation of our rules.”

20 C.F.R. §§ 404.1740(b)(1), 416.1540(b)(1). Reps must act with reasonable promptness to help obtain the evidence.

§§404.1512(a), 416.912(a). Generally, you must prove disability. You must inform us of all evidence known to you that relates to whether you are disabled. It is an ongo-ing duty, at each level through the appeals council if it relates to the period before the ALJ decision.

§§404.1512(b), 416.912(b) before the decision that you are not disabled, we will develop your complete medical. We make reasonable efforts to help you get medical evidence. Reasonable effort means making an initial request, and between 10–20


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Martins v. Colvin, U.S.D.C., D.Ma., Sept. 8, 2014 Not Reported in F.Supp.3d 2014 WL 4437779.

There is no dispute that in the instant case, Martins did not submit the 83 pages of South Bay records to the ALJ until Friday, June 15, 2012, one business day before the June 18, 2012 hearing. Nevertheless, this court finds that she established the existence of an unexpected circumstance beyond her control, which prevented her from submitting those documents earlier. As described by her counsel in his let-ter accompanying the records at issue, Martins’ attorneys attempted to obtain the documents from South Bay approximately two months prior to the hearing date, but the facility proved to be uncooperative. (Tr. 1192). Not only did South Bay fail to respond to counsel’s initial request for the documents, but it also refused to make an unscheduled trip to retrieve the records from its off-site storage facility absent an order from a court. (Id.). This court finds that the plaintiff could not have reasonably anticipated that her mental health provider would prove so unhelpful in respond-ing to a request by a patient for copies of her own medical records, or that it would take so much time to obtain those records. Therefore, the ALJ should have considered them as part of the administrative record. The First Circuit has “long recognized that social security proceedings ‘are not strictly adversarial.’ “ Evangelista v. Sec’y of Health & Human Servs., 826 F.2d 136, 142 (1st Cir.1987) (quoting Miranda v. Sec’y of

calendar days after the initial request, if the evidence has not been received, we make one follow-up request. The medical source has a minimum of 10 calendar days from the date of our follow-up request to reply.

§§404.1512(b) (2), 416.912(b)(2). We may ask you to attend a consultative exam. We don’t request that until we made every rea-sonable effort to obtain evidence from your medical sources.

§§404.1513, 416.913. Evidence is any-thing submitted. Objective medical evi-dence is medical signs, laboratory findings or both. Medical opinion is a statement from a medical source(s) about what you can still do despite your impairments.

Other medical evidence is from a medi-cal source that is not objective medical evidence or a medical opinion or judg-ment about the nature and severity of impairments. Privileged communications exceptions are not evidence. Examples are attorney-client privilege (confidential com-munications), reps analysis of the claim, e.g., work product doctrine (analysis, theo-ries, mental impressions, notes).


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Health, Educ. & Welfare., 514 F.2d 996, 998 (1st Cir.1975)). Accordingly, the court has “made few bones about [its] insistence that the [Commissioner] bear a responsibil-ity for adequate development of the record in these cases.” Id. As the First Circuit has stated, *7 “this responsibility increases in cases where the [claimant] is unrepresented, where the claim itself seems on its face to be substantial, where there are gaps in the evidence necessary to a reasoned evalu-ation of the claim, and where it is within the power of the administrative law judge, without undue effort, to see that the gaps are somewhat filled—as by ordering easily obtained further or more complete reports or requesting further assistance from a social worker or psychiatrist or key witness.” As the First Circuit has stated, *7 “this respon-sibility increases in cases where the [claim-ant] is unrepresented, where the claim itself seems on its face to be substantial, where there are gaps in the evidence necessary to a reasoned evaluation of the claim, and where it is within the power of the admin-istrative law judge, without undue effort, to see that the gaps are somewhat filled—as by ordering easily obtained further or more complete reports or requesting further assis-tance from a social worker or psychiatrist or key witness.”

Scates v. Commissioner of Social Sec. U.S.D.C., E.D. Tn., No. 1:12-CV-408, March 17, 2014 Not Reported in F.Supp.3d 2014 WL 1092081

Plaintiff next argues the magistrate judge erred in finding the ALJ did not violate his duty to fairly and fully develop the record. Plaintiff asserts the ALJ should have kept the record open after the hearing to accept


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Dr. Graves’s treatment records. Social Security proceedings are “inquisitorial rather than adversarial” and ALJs have a “duty to investigate the facts and develop the arguments both for and against grant-ing benefits.” Sims v. Apfel, 530 U.S. 103, 110–11, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000) (citing Richardson, 402 U.S. at 400–01). ALJs are responsible for “ensuring that every claimant receives a full and fair hear-ing.” Lashley v. Sec’y of Health & Human Servs., 708 F.2d 1048, 1051 (6th Cir.1983) (citing Richardson, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842)).

*5 The duty to develop the record “rises to a special duty” when the claimant is unrep-resented and unfamiliar with the hearing procedures. Id. That special duty requires an ALJ to “scrupulously and conscien-tiously probe into, inquire of, and explore for all the relevant facts [and] be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id. at 1051 (internal citations omitted). That said, “[o]nly under special circumstances, i.e., when a claimant is without counsel, is not capable of present-ing an effective case, and is unfamiliar with hearing procedures, does an ALJ have a special, heightened duty to develop the record.” Trandafir v. Comm’r of Soc. Sec., 58 F. App’x 113, 115 (6th Cir. 2003) (cit-ing Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 856 (6th Cir.1986)).

According to the rule governing submission of evidence for an ALJ hearing, any written evidence that the claimant “wish[es] to be considered at the hearing must be submit-ted no later than five business days before the date of the scheduled business days


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before the date of the scheduled hearing.” 20 C.F.R. § 405.331(a) (emphasis added). However, evidence may be submitted after the hearing if it is submitted before the ALJ’s decision is issued, there is a “rea-sonable possibility that the evidence . . . would affect the outcome of your claim” and one of the following applies:

(1) [The Social Security Administration’s] action misled you;

(2) You had a physical, mental, educa-tional, or linguistic limitation(s) that prevented you from submitting the evi-dence earlier; or

(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from submitting the evidence earlier.

§ 405.331(b), (c).

In the instant case, although the ALJ did not have a “special duty” to develop the record given that Plaintiff was represented, Plaintiff argues the ALJ nonetheless vio-lated his duty to fairly and fully develop the record. Specifically, Plaintiff contends the ALJ erred by not ensuring Dr. Graves’s treatment notes were made part of the record, despite the fact that they had not been submitted before the hearing occurred or even before the ALJ’s decision was rendered.

The Court notes that § 405.331(c), the reg-ulation controlling submission of evidence after a hearing but before a decision is issued, “puts the burden on the claimant” to (1) produce an adequate reason why the evidence could not have been submitted earlier and (2) show that there was a


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reasonable possibility that the evidence would affect the outcome. Young v. Colvin, 3:12–CV–245, 2013 WL 4591554 (E.D.Tenn. Aug.28, 2013). Here, Plaintiff did not actually submit the evidence before the decision was made, so § 405.331(c) technically could not help him. Further, even if he had submitted the evidence before the ALJ decided the claim, Plaintiff has failed to show that an “unusual, unex-pected, or unavoidable circumstance beyond [his] control prevented [him] from submitting the evidence earlier.” § 405.331(c). Plaintiff’s brief notes that his lawyer “specifically informed the ALJ that Dr. Graves’s office had not fully cooperated with several attempts to procure Plaintiff’s treatment notes” (Court File No. 19, p. 8). The Court does not find in the record where this was actually conveyed. Rather, during the hearing Plaintiff’s counsel pro-vided no indication of whether multiple requests were made for the records and when any requests were made. Counsel instead told the ALJ that she “had a little bit of trouble getting the records from [Dr. Graves]” and that “sometimes we have difficulties with doctor’s offices” (Tr. 32). When the ALJ asked if there were any objections before closing evidence at the hearing, Plaintiff said no.

*6 Plaintiff contends the ALJ should have held open the record indefinitely to wait for Dr. Graves’s records. In this case, the Court cannot conclude that the duty of an ALJ to fairly and fully develop the record requires the ALJ to deviate from 20 C.F.R. § 405.331 in such a way. The regulation requires that materials be submitted five days before a hearing, but it carves out


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certain exceptions for evidence filed after that deadline and even after the hearing. As shown above, however, Plaintiff did not fall into any exception. Particularly in light of the fact that Plaintiff was represented by counsel, the Court cannot find that the magistrate judge erred in determining the ALJ satisfied his obligation to fairly and fully develop the record in this case

Taylor v. Colvin, U.S.D.C., D. Kansas, December 2, 2013, Not Reported in F.Supp.2d 2013 WL 6229370.

The court finds no error in either the ALJ’s failure or the Appeals Council’s failure to expressly consider Dr. Bradshaw’s post-hearing opinion. With respect to the ALJ’s failure to consider the opinion, plaintiff has not shown the court that the opinion was ever made part of the record before the ALJ. At the end of the administrative hear-ing, plaintiff’s counsel did not request that the record be held open for the submis-sion of additional evidence and there is no indication that the ALJ expected to receive (or that plaintiff planned to submit) addi-tional evidence prior to issuing his decision. Significantly, the ALJ expressly closed the record at the conclusion of the hearing on August 25, 2010. In faxing Dr. Bradshaw’s opinion to the ALJ, plaintiff’s counsel did not request that the ALJ reopen the record and did not make any effort to explain why the evidence was not submitted prior to the hearing. See 20 C.F.R. § 405.331(a) (ALJ will accept evidence submitted after hearing and prior to issuance of decision only if claimant shows that there is a reasonable probability that it will affect the outcome of the claim and circumstances beyond his or her control that prevented earlier submission).


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Dr. Bradshaw’s opinion, then, was not included in the List of Exhibits attached to the ALJ’s decision. Because plaintiff has not sustained her burden of establishing that the opinion was part of the record before the ALJ, the court finds no error in the ALJ’s failure to consider it. See Eads v. Secretary of Health & Human Servs., 983 F.2d 815, 816–17 (7th Cir.1993) (ALJ can-not be faulted for having failed to weigh evidence never presented to him); Ostigny v. Commissioner of Social Security, 2013 WL 4605647, at *3 (S.D.Ohio Aug. 29, 2013) (in reviewing ALJ’s decision, court could not consider post-hearing evidence that was untimely submitted to the ALJ after the record was closed and ALJ did not err by failing to address the evidence); Franson v. Commissioner of Social Security, 556 F.Supp.2d 716, 723–24 (W.D.Mich.2008) (any fault relating to ALJ’s failure to con-sider post-hearing exhibits rested “squarely on plaintiff’s attorney’s shoulders” when attorney mailed exhibits to ALJ weeks after record was closed and exhibits were thus never properly before the ALJ).

Callaway v. Colvin, U.S.D.C., S.D. GA, January 17, 2017, Slip Copy, 2017 WL 187158.

“Rather, the judge must explain why sig-nificant probative evidence has been rejected.”) (internal citations and quota-tion marks omitted). Furthermore, an ALJ is required to state the weight given to “obviously probative exhibits.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). Plaintiff could not have submitted Dr. Dewitte’s findings before the hearing and there is a reasonable possibility the evidence could change the outcome of his


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case. See 20 C.F.R. § 405.331(c); Tyner v. Colvin, 2015 WL 4080718, at *2 (finding ALJ should have considered medical evi-dence submitted after hearing but before decision); Lord v. Apfel, 114 F. Supp. 2d 3, 13 (D.N.H. 2000) (“[T]he fact that the evidence was submitted after the hearing is irrelevant.”) Because the ALJ failed to men-tion Dr. Dewitte’s findings, it is impossible for the Court to determine whether the ALJ considered this evidence and implicitly discredited it, or simply overlooked it. This is significant because Dr. Dewitte’s finding of encephalomalacia is probative, supports Plaintiff’s arguments in favor of disability, and is noncumulative.

Tyner v. Colvin, U.S.D.C., M.D. Fla, Jacksonville Division.July 6, 2015 Not Reported in F.Supp.3d 2015 WL 4080718, 217 Soc.Sec.Rep.Serv. 832.

Although an ALJ is not required to refer to every piece of evidence in his decision, the ALJ may not ignore relevant evidence, particularly when it supports the claim-ant’s position. See, e.g., Lord v. Apfel, 114 F.Supp.2d 3, 13 (D.N.H.2000); Meek v. Astrue, 2008 WL 4328227, *1 (M.D.Fla. Sept.17, 2008) (“Although an ALJ need not discuss all of the evidence in the record, he may not ignore evidence that does not support his decision. . . . Rather, the judge must explain why significant probative evidence has been rejected.”) (internal cita-tions and quotation marks omitted). The evidence at issue supports Plaintiff’s posi-tion. For example, although the ALJ con-cluded that Plaintiff’s rheumatoid arthritis was well controlled with medications (Tr. 37), which was one reason cited by the ALJ for rejecting Dr. Patterson’s opinions, the


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additional evidence demonstrates that Plaintiff’s medication did not provide relief, and just a couple of weeks after the ALJ’s hearing, Plaintiff had surgery for removal of a rheumatoid cyst (Tr. 649, 655). Also, while the ALJ rejected Plaintiff’s complaints of dis-abling pain based on the results of “objec-tive imaging studies” (Tr. 38), during the period of July 5, 2012, through August 30, 2012, Plaintiff underwent additional tests and examinations, including a lumbar spine MRI, which indicated a moderate broad-based disk bulge, among others (Tr. 662, 678). Although the Court cannot speculate what weight the ALJ may assign to the evi-dence included in Exhibit 12F, there is a rea-sonable possibility that the evidence, alone or when considered with the rest of the file, could change the outcome in this case. See 20 C.F.R. § 405.331(c).

Case Law on ALJ’s Duty to Develop the Evidence.

Sims v. Apfel, 530 U.S. 103 (2000) pro-ceedings are inquisitorial, not adversarial. The ALJ has the duty “to investigate the facts and develop the arguments both for and against granting benefits” Id. (cit-ing Richardson v. Perales, 402 U.S. 389 (1971). This duty exists even if represented by counsel. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.1981), but rises to a special duty for unrepresented claimants. Smith v. Schweiker, 677 F.2d 826, 829) (11th Cir. 1981). The ALJ failed to fulfill his duty to obtain updated medical records where unrepresented claimant said he saw a doctor twice prior to the hearing. Brown v. Shalala, 44 F.3d 931 (11th Cir. 1995).


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APPEALS COUNCIL ACT, REGS, RULINGS,HALLEX, POMS

§§404.968, 416.1468. You may submit any evidence you wish to have considered by the AC with your request for review, and the AC will consider the evidence in accordance with §§404.970, 416.1470. Additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision. You must show good cause for not informing or submitting the evidence as described in §§404.935, 416.1435.

Good cause: you were misled by the action; OR unusual, unexpected, or unavoidable circumstances beyond your control prevented you from informing us about the evidence earlier. (“You” is the person claiming the right under the act). Examples include serious illness (includ-ing immediate family); death; destroyed records; you actively and diligently sought evidence and it was not received or was received less than 5 business days before the hearing; the AC reviewed your hearing level decision. The evidence must relate to the period before the ALJ decision.

HALLEX I-3-3-2 LU 4/5/13. Abuse of Discretion. AC will assume jurisdiction when there appears to be an abuse of dis-cretion by ALJ, e.g., ALJ action erroneous, w/o rational basis, clearly not justified, ALJ does not follow procedures or agency poli-cy, i.e., not permitting a claimant to submit evidence necessary to support the claim; not postponing a scheduled hearing despite physician documentation of unavailability


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for health reasons; and not conducting a full and fair hearing, e.g., not allow-ing claimant to testify or cross-exam-ine witnesses.

HALLEX I-3-2-15 LU 5/1/17. If AC finds ALJ abused his/her discretion, and finds “unfairness”, AC can refer the matter to Division of Quality Services (DQS).

HALLEX I-2-6-56 (LU 8/2/16). ALJ Under sections 205(b) and 1631(c) of the Social Security Act, an administrative law judge (ALJ) must base his or her decision on “evidence adduced at the hearing.” The regulations provide that the ALJ will look fully into the issues, question the claim-ant and other witnesses, and accept as evidence any documents that are material to the issues. See 20 CFR §§404.944 and 416.1444. “Evidence” is defined in 20 CFR §404.1513 and §416.913.

An ALJ has a duty to ensure that the administrative record is fully and fairly developed. See 20 CFR §404.1512(b) and §416.912(b).

Social Security Act §205 (42 U.S.C. 405), decisions shall be based on evidence adduced at the hearing.

Sentence 6, of § 405(g): The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner’s answer, remand the case to the Commissioner of Social Security for fur-ther action by the Commissioner of Social Security, and it may at any time order additional evidence to be taken before the Commissioner of Social Security,


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but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Commissioner of Social Security.

REOPENING, REVISING DECISIONS OR DETERMINATIONS

ACT, REGS, RULINGS,HALLEX, POMS

§§404.987, 416.1487. ALJ decisions may be reopened. (See also HALLEX I-2-9-20 LU 7/25/15).

§§404.987-404.988, 416.1487-416.1488. A decision may be reopened within 12 months of initial determination for any rea-son; within 4 years of initial determination for good cause for title II purposes, defined in §§404.989, and within two years for title XVI purposes, defined in §416.1489; or any time if obtained by fraud or simi-lar fault or to correct errors on face of record, or to correct clerical errors, e.g., a DLI date.

§§404.1520, 416.920. Disability Evaluation. We consider all evidence in your case record. (No reference to §§404.935, 416.1435).

§§404.1545. 416.945 . RFC is based on all relevant evidence in your case, and it includes non-severe evidence, and claim-ant is responsible for producing the evi-dence. (No reference to §§404.935 or 416.1435).


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RULES OF CONDUCT AND STANDARDS OF RESPONSIBILITY FOR

REPRESENTATIVESREGULATIONS

20 CFR §§ 404.1740 , 416.1540

(a) (1),(2). A representative must provide competent assistance to the claimant and recognize our authority to lawfully administer the process.

The following provisions set forth certain affirmative duties and prohibited actions that will govern the relationship between the representative and us, including matters involving our administrative procedures and fee collections.

(2) All representatives must be forth-right in their dealings with us and with the claimant and must comport themselves with due regard for the nonadversarial nature of the proceedings by complying with our rules and standards, which are intended to ensure orderly and fair presenta-tion of evidence and argument.

(b) Affirmative Duties. (1) Act with reason-able promptness to help obtain the information or evidence that the claim-ant must submit under our regulations, and forward the information or evi-dence to us for consideration as soon as practicable.


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(2) Assist the claimant in comply-ing, as soon as practicable, with our requests for information or evidence at any stage of the administrative decision making process in his or her claim. In dis-ability and blindness claims, this includes the obligation pursuant to §§ 404.1512(c),,416.912(c) to assist the claimant in providing, upon our request, evidence about:

(i) The claimant’s medical source(s);(ii) The claimant’s age;(iii) The claimant’s education

and training;(iv) The claimant’s work experience;(v) The claimant’s daily activities

both before and after the date the claimant alleges that he or she became disabled;

(vi) The claimant’s efforts to work; and(vii) Any other factors showing how

the claimant’s impairment(s) affects his or her ability to work. In §§ 404.1560 through 404.1569a, we discuss in more detail the evi-dence we need when we consider vocational factors;

(3) Conduct his or her dealings in a manner that furthers the efficient, fair and orderly conduct of the administrative decision making pro-cess, including duties to:

(i) Provide competent representa-tion to a claimant. Competent representation requires the knowledge, skill, thoroughness and preparation reasonably nec-essary for the representation. This


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includes knowing the significant issue(s) in a claim and having a working knowledge of the appli-cable provisions of the Social Security Act, as amended, the regulations and the Rulings; and

(ii) Act with reasonable diligence and promptness in representing a claimant. This includes pro-viding prompt and responsive answers to our requests for infor-mation pertinent to processing of the claim; and

(c) (3) Knowingly make or present, or par-ticipate in the making or presenta-tion of, false or misleading oral or written statements, assertions or representations about a material fact or law concerning a matter within our jurisdiction; (4) Through his or her own actions or omissions, unreasonably delay or cause to be delayed, without good cause (see § 404.911(b)), the processing of a claim at any stage of the administra-tive decision making process;

COMMENTS AND RESPONSES TO THE PROPOSED REGULATIONS ON SUBMISSION OF EVIDENCE IN DISABILITY CLAIMS—WWW.GPO.GOV FR DOC. NO: 2015-05921.

FED. REGISTER VOLUME 80, NUMBER 54,3/20/15

COMMENT RESPONSE

Is the word “relates” too vague. The word “relates” means: shows a logical or causal connection between two things.

Must claimants supplement evidence on an ongoing basis.

Claimants must supplement and disclose evidence they were initially unaware of at each level in the review process, including the Appeals Council if it relates to the period which is the subject of the hearing decision.


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Should inaccurate, unreliable, or biased evidence be submitted, e.g., a grudge from a former spouse.

All evidence favorable or unfavorable must be submitted. It would be inconsistent with Congress’s intent in enacting Sec. 201 of Social Security Protection Act of 2004 (SSPA), authorizing civil monetary penalties on a claimant who should have come for-ward to notify us of changed circumstances affecting eligibility. Claimants can always explain to SSA why little or no weight should be given to adverse evidence.

Should reps be penalized when claimants with cognitive difficulty fail to disclose evidence to them. Should reps be penal-ized when claimants conceal evidence from them.

We do not expect a claimant who mistak-enly withholds evidence due to cognitive deficits would be subject to civil monetary penalties, nor should the claimant’s rep be subject to such penalties. We assist claimants who request help responding to requests for information. We do not expect a rep would be subject to civil monetary penalties under the SSPA if the rep’s client concealed evidence from the rep.

Privilege and Work Product Exceptions. Communications with medical sources.

We exclude from the evidence oral and written communications between claimants and reps that are, or would be, subject to attorney-client privilege, unless voluntarily disclosed. This doctrine protects the attor-ney’s analysis, theories, mental impressions, and notes from disclosure. It does not protect disclosure of underlying facts that claimant communicates to the attorney, it protects only the disclosure of the communication, itself. Reps may still protect from disclosure their consultation with medical sources about claimant’ s medical condition. Notes during a discussion with medical sources are protected as work product. A rep does not have to request a written opinion from any medical sources. Reps can fully investigate the merits of a claim and they do not have to disclose the results of their investigation, unless they obtain a medical record or writ-ten opinion from a medical sources.


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If reps only request discharge summaries, should an entire hospital file be submitted. Should reps be requesting and paying for medical records identified by claimants.

Records received must be submitted in their entirety. We did not impose a duty on claimants or reps to request all evidence from all sources. If only the discharge summary is requested we require them to submit only what they receive in response to that request in its entirety. We would not require them to request and pay for all of the other records from the hospitaliza-tion. By requiring claimants to inform us or submit evidence that relates to the claim, we are not shifting our responsibility for developing the record to claimants or reps. We do not require duplicate records. Our responsibility to assist claimants in devel-oping the record also remains unchanged.

(NOTE: HALLEX I-2-5-13(A)(note 2), states that “[i]f a representative has a pattern of informing SSA about evidence that relates to the claim instead of acting with rea-sonable promptness to help obtain and forward the evidence to SSA, an ALJ will consider whether circumstances war-rant a referral to the Office of the General Counsel (OGC) as a possible violation of our rules.” )

PRACTICAL APPLICATION

Regulation Practical Application

20 CFR § 404.935(a) & §416.1435(a)

When you submit your request for hear-ing, you should also submit information or evidence as required by § 404.1512 & §416.912 or any summary of the evidence to the administrative law judge.

Schedule appointment with client upon receipt of reconsideration denial. Get updated list of providers and request all records not already obtained. Have cli-ent sign off on list certifying these are all known medical providers and submit list to SSA. Identify if there is a DLI issue at this point and if retrospective opinion evidence is needed. Begin attempting to get opinion


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Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in § 404.1512 & § 416.912, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this require-ment, the administrative law judge may decline to consider or obtain the evi-dence, unless the circumstances described in paragraph (b) of this section apply.

evidence from treating physicians (or ARNPs) and if you know a CE will need to be obtained get it scheduled. First use telephone consulta-tions with the medical provider. Privilege and Work Product rules are protected.

Upon receipt of hearing notice (must be 75 days ahead of hearing) meet with client again for full prep. Go back over provider list with client and add any new providers. Have cli-ent sign off on updated list. Document all attempts to get evidence. Per HIPPA medical providers must respond in writing to request for records no later than 30 calendar days from receiving the individual’s request, see 45 CFR 164.524(b)(2). If a medical provider is unable to provide access within 30 calendar days—for example, where the information is archived offsite and not readily accessible—the covered entity may extend the time by no more than an additional 30 days. (Always get documentary proof of your requests for medical records as an ALJ should be given such proof in some cases). This means medi-cal providers can legally take up to 60 days to provide the requested records. Don’t think you have 15 days left, as the law states only busi-ness days count. Therefore, while evidence must go in 5 business days before the hearing, you cannot count the day of the hearing and you must subtract the weekend days.

If ten days out from the hearing all the records are not in, a letter should be sent to the ALJ with a list of all records not yet received and submitted and a description of all steps taken by you to obtain those records. I say two weeks because the regulation specifies 5 business days. If the hearing is on July 5, a Wednesday in 2017, then 5 business days before the hearing would be June 27, which is 8 calendar days before the hearing.


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20 CFR § 404.935(b) & §416.1435(b)

If you have evidence required under § 404.1512 but you have missed the deadline described in paragraph (a) of this section, the administrative law judge will accept the evidence if he or she has not yet issued a decision and you did not inform us about or submit the evidence before the deadline because:

In theory the letter submitted before the hearing should protect you if you still have not gotten all evidence in by the date of the hearing. However, certain ALJs may refuse to accept records despite being notified 5 business days before the hearing.

20 CFR § 404.935(b)(1) & §416.1435(b)

Our action misled you;

Examples may include: wrong date on the Notice of Hearing, issues misstated on the notice of hearing, incorrect DLI date, etc.

Hubble v. Colvin, 2013 WL 1703366 (U.S. Dist. Ct. D. Wa. 2013)—The statutory fac-tors establishing “good cause for missing the deadline to request review” include consideration of whether an action by the Commissioner misled the claimant. See 20 C.F.R. § 404.911(2) (“Whether our action misled you”). Where, as here, SSA’s notice to claimant had an incorrectly stated the DLI date was 6/30/08, when the correct DLI date was 6/30/09. Therefore, there was un unadjudicated period, contrary to SSA’s notice that res judicata applied as the same period had already been decided. Plaintiff was not yet represented by counsel, and after being misled chose not to appeal

20 CFR § 404.935(b)(2) & §416.1435

You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or

Claimants with linguistic, literacy, or serious mental or educational limitations, may lack the capacity to provide counsel or the ALJ with a complete list of providers. Some claimants should be tested: Wide Range Achievement Test (WRAT), Wechsler Individual Achievement Test (WIAT), Woodcock-Johnson Psycho-educational Battery & Revised: Tests of Achievement (WJ-RACH). Testimony should be taken about methods used to attempt to obtain a driver’s license.


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Walker v. Commissioner of Social Sec., 2013 WL 3833199 (U.S. Dist. Ct. M.D. Fla. 2013)— Given Plaintiff’s new evidence of mental impairment and mental health treat-ment near and previous to the time Plaintiff was faced—without counsel—with prov-ing that she had filed her original request for review by the September 25, 2010 deadline, the Court finds the case must be remanded to the Appeals Council to deter-mine whether Plaintiff›s new evidence of concurrent mental health treatment and confusion/lack of knowledge of the proof of mailing the August 2010 request for review supports a finding of good cause for the untimely filing of her request for review. See Sears v. Bowen, 840 F.2d 394 (7th Cir.1988) (remanding case to Appeals Council to con-sider additional new, material evidence of psychiatric report where claimant had dem-onstrated good cause for his failure to sub-mit it during the administrative process).

Bowen v. Commissioner, 2015 WL 7281610, U.S.D.C., VT, Nov. 16, 2015. No good cause found to support untimely appeal where address changed and claim-ant alleged non-receipt of notice and numerous mental and physical disabilities, as claimant could have contacted the U.S. Post Office with a forwarding address and was not prevented from consulting with her attorney. Therefore, no proof claimant could not control the circumstances under §405.20(a). Also, no due process and equitable tolling. However, the case cited Elchediak v. Heckler, 750 F.2d 892, 894 (11th Cir. 1985): due process seems apropos in context of SS disability benefit proceed-ings where the very disability forms the basis that deprives her of the ability


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to understand or act upon notice of pro-cedures. In the instant case, there was no evidence claimant was so impaired in the ability to understand and pursue adminis-trative and legal procedures (see Byam v. Barnhart, 336 F.3d 172 182 (2d Cir . 2003 (quoting Stieberger v. Apfel, 134 F.3d 37, 40-41 (2d Cir. 1997). The case cited Higdon v. Bowen, No. 88 C 0198, 1988 WL 86694, at *2 (E.D.N.Y. Aug. 16, 1988): agency has a nondiscretionary duty not to abuse what discretion it has. (See also Gerena v. Korb, 617 F.3d 94, 99 (2d Cir. 2009)): Abuse of dis-cretion occurs when a decision is based on an error of law or a clearly erroneous assess-ment of the evidence.

20 CFR § 404.935(b)(3) & §416.1435(b)(3)

Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to:

(i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;

(ii) There was a death or serious illness in your immediate family;

(iii) Important records were destroyed or damaged by fire or other accidental cause; or

(iv) You actively and diligently sought evi-dence from a source and the evidence was not received or was received less than 5 business days prior to the hearing.

All attempts to obtain the evidence need to be carefully documented and described in your cover letter explaining the late submis-sion or anticipated late submission. Record gathering should be done throughout the course of the representation, but as men-tioned above a preparation appointment should be scheduled with claimant imme-diately after the notice of hearing arrives (or before if your office knows one is coming) and all records should be requested more than 60 days ahead of the hearing.

Jefferson v. Astrue, 2012 WL 1118639, U.S.D.C.,E.D. LA, Feb. 28, 2012. No extraor-dinary circumstances or exceptional circum-stances found to support equitable tolling to extend deadline and claimant was not alleg-ing she was misled. Here, claimant filed her appeal to the AC seven days after the deadline. Equitable tolling did not apply based on inabil-ity of claimant to function after a second sur-gery on her left arm. Equitable tolling applies if there is some extraordinary circumstance that stood in the way of timely appealing.


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Adams v. Colvin, 2016 WL 5334646 (U.S. Dist Ct. D. Ct. 2016)—This was an Appeals Council case. EMG taken four months after decision confirmed chronic condition. Plaintiff clearly meets the good cause requirement of Section §405.401(c) as he was prevented from submitting the evidence by an unavoidable circumstance beyond his control. The evidence in ques-tion was not available to the Plaintiff until four months after the hearing decision. Finally, the evidence would likely change the outcome of the case.

20 CFR § 404.1512(a)(1) & 416.912(a)(2)

In general, you have to prove to us that you are blind or disabled. You must inform us about or submit all evidence known to you that relates to whether or not you are blind or disabled (see § 404.1513). This duty is ongoing and requires you to disclose any additional related evidence about which you become aware. This duty applies at each level of the administra-tive review process, including the Appeals Council level if the evidence relates to the period on or before the date of the administrative law judge hearing decision. We will consider only impairment(s) you say you have or about which we receive evidence. When you submit evidence received from another source, you must submit that evidence in its entirety, unless you previously submitted the same evi-dence to us or we instruct you otherwise. If we ask you, you must inform us about:

(i) Your medical source(s);(ii) Your age;(iii) Your education and training;(iv) Your work experience;

Keep up with who the claimant is treating with and submit written updates at each level of review.

If you receive opinion evidence that is harmful to the claimant’s case it must be submitted, but you should contact the source and seek a clarification in order to mitigate the harm, point out inconsisten-cies in evidence, from the source or from other doctors, ask whether there are con-currencies with any of the more favorable opinions, and, if needed, send short inter-rogatory questions to the medical source.

If the claimant is working, even if it is under SGA, you need to get the last year’s tax returns, monthly gross wage reports from employers, the most recent paystub, and a statement from the claimant’s super-visor regarding any accommodations the claimant may receive.


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(v) Your daily activities both before and after the date you say that you became disabled;

(vi) Your efforts to work; and(vii) Any other factors showing how your

impairment(s) affects your ability to work. In §§ 404.1560 through 404.1569, we discuss in more detail the evidence we need when we con-sider vocational factors.

20 CFR§404.1512(a)(2) & §416.912(a)(2)

The evidence in your case record must be complete and detailed enough to allow us to make a determination or decision about whether you are disabled or blind. It must allow us to determine—

(i) The nature and severity of your impairment(s) for any period in question;

(ii) Whether the duration requirement described in § 404.1509 & 416.909 is met; and

(iii) Your residual functional capacity to do work-related physical and mental activities, when the evaluation steps described in § 404.1520(e) or or(f)(1), § 416.920(e) or (f)(1) apply.

If you are dealing with a remote period of time you need to obtain a retrospective medical source statement.

20 CFR § 404.1512(b)(1) & §416.912(b)(1)

Before we make a determination that you are not disabled, we will develop your complete medical history for at least the 12 months preceding the month in which you file your application unless there is a reason to believe that development of an earlier period is necessary or unless you say that your disability began less than 12 months before you filed your application.

This standard, i.e., two requests within 10–20 days of each other equaling “every reasonable effort” could arguably also apply to the claimant. And, the agency’s failure to meet these requirements with 5 business days prior to the hearing should be evaluated by counsel to determine if an extension of time to submit evidence is warranted.


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We will make every reasonable effort to help you get medical evidence from your own medical sources and entities that maintain your medical sources’ evidence when you give us permission to request the reports.

(i) Every reasonable effort means that we will make an initial request for evidence from your medical source or entity that maintains your medical source’s evidence, and, at any time between 10 and 20 calendar days after the initial request, if the evidence has not been received, we will make one follow-up request to obtain the medical evidence necessary to make a determination. The medical source or entity that maintains your medical source’s evidence will have a minimum of 10 calendar days from the date of our follow-up request to reply, unless our experience with that source indicates that a longer period is advisable in a particular case.

(ii) Complete medical history means the records of your medical source(s) cov-ering at least the 12 months preceding the month in which you file your appli-cation. If you say that your disability began less than 12 months before you filed your application, we will develop your complete medical history begin-ning with the month you say your dis-ability began unless we have reason to believe your disability began earlier. If applicable, we will develop your com-plete medical history for the 12-month period prior to the month you were last insured for disability insurance benefits (see § 404.130), the month ending the 7-year period you may have to establish your disability and you are

At a recent Q &A with the Region IV Chief ALJ’s office it was reported that some of the new rules also apply to ALJs.


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applying for widow’s or widower’s benefits based on disability (see § 404.335(c)(1)), or the month you attain age 22 and you are applying for child’s benefits based on disability (see § 404.350).

A REAL CASE—APPLYING THE 5 DAY RULE

FACTS ALJ ERRORS REMEDY & TIPS

The hearing was scheduled for 5/23/17.

The NOH was sent 2/15/17 (prior to the implementation of the 5 day rule on 5/1/17), with no mention of the 5 day rule requirements in the NOH. The NOH did state the date and time of the hearing was 5/23/17 at 10:00.

3/24/17 a letter was sent to claimant saying we will send you a Notice telling you the date and time of your hearing at least 75 days before the scheduled date. The notice will tell you that you must object to the issues 5 business days before your hearing. It fur-ther states you must send or let us know about evidence at least 5 business days before your hearing.

No 75 day Notice was sent after the 3/24/17 letter.

Second counsel was not personally notified of the hearing date. The notice of hearing was never sent to second counsel 75 days prior to the hearing.

ALJ’s actions are contrary to regulations §§404.936(e)(2) & (f)(2)(ii), 416.1436(e)(2) & (f)(2)(ii).

ALJ’s actions are contrary to the statutory right to be represented by an Attorney (42 U.S.C. §406(a)-(c), and §§404.1700-404.1710, 416.1500-416.1510) as well as right to access to the courts under the First Amendment to the U.S. Const.

Claimant was also denied a full and fair hearing, violating due process clause under the Fifth Amendment to the U.S. Const. , when her attorney was not permitted the time to adequately prepare for the hearing and never provided proper notice of the hearing.

TIP: Do not make tele-phone calls to ODAR when requesting relief. Everything should be put in writing (fax, email, regular mail) when dealing with the 5 day rule since you will need to document all attempts to obtain relief.

GOOD CAUSE TO CHANGE TIME OF HEARING.

20 CFR §§404.936(e)(1), 416.1436(e)(1) a Request to change the date of the hearing, requires notify-ing ODAR no later than 5 days before the date set for the hearing or 30 days after receiving notice of the hearing with the reasons stated as to why you want to change the date, and state the time and place you want to have the hearing held. ODAR will change the date if good cause as stated in section “f”.


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All SSA/ODAR notices were in English. Client was Haitian. A Creole inter-preter was present at the hearing. Client may have been illiterate and dem-onstrated difficulty com-municating in English at the hearing. Client had a 5th grade education in Haiti. Client informed SSA on his SSA form 3368 that he did not understand some words in English and his preferred language was Creole-Haitian.

Prior attorney withdrew on 4/26/17.

The second attorney was hired on 5/20/17 which was 7 business days before the hearing on 5/12/17).

Second Attorney’s 1696 was filed with ODAR, Orlando, on 5/20/17.

The attorney requested a continuance on the same day he was hired on 5/20/17 based on the good cause reason he was hired less than 30 days before the hearing.

5/15/17 2 f/u tel. calls to ODAR were made by Attorney re the requests for postponement;

Counsel should have been given 75 days notice of the hearing, under the regulation §§404.938(a), 416.1438(e).

75 days is the reasonable period determined by SSA to prepare adequately for a hearing. The Attorney was only hired 7 business days before the hearing.

In the Notice of Proposed Rule Making, Comments and Responses, SSA recog-nized that less than 75 days notice (e.g,, 60 days) may not be adequate due to HIPAA timeframes for pro-viding medical evidence.

ALJ’s action was an abuse of discretion and contrary to regulations §§404.935(b), 416.1435 which requires acceptance of the evidence after the 5 day period but before the decision, when there was some unavoidable, unusual, or unexpected cir-cumstance, circumstance beyond the claimant’s con-trol. That circumstance was that claimant was unable to obtain counsel until 13 days before the hearing. Given claimant’s linguis-tic limitations, and that he argued at hearing that he does not understand many

20 CFR §§404.936(f)(1)(i-ii), 416.1436(f)(1)(i-ii) . . . we will change the time . . . of the hearing if the reason is one of the following: (i) a serious physical or mental condition or incapacitating injury makes it impossible for you or your rep to travel to the hearing, or death in family, (ii) severe weather.

20 CFR §§404.936(f)(2), 416.1436(f)(2) to determine “good cause” in circum-stances other than section (f)(1)(i), the ALJ will con-sider your reason, the facts supporting it, the impact of the change on efficient administration of the hear-ing process.

Factors affecting the impact of the change include the effect on other hearings, whether we previously granted you any changes. Examples of circumstances that you might give for requesting a change, include, but are not limited to: (i) you unsuccessfully attempted to obtain a rep and need time to secure a rep; (ii) your rep was appointed within 30 days of the scheduled hearing and needs additional time to prepare; (iii) your rep has a prior commitment to be in court or at another


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5/16/17 additional f/u tel. calls to ODAR made re request to postpone;

5/16/17 attorney faxed request to postpone again to ODAR;

5/17/17 attorney re-faxed paper work to Orlando ODAR;

5/19/17 f/u tel.call to ODAR again made on request to postpone—left detailed message;

On 5/22/17, the day before the hearing, by telephone the ALJ responded and said he refused to grant a continuance. While a letter dated 5/22/17 is exhibited at 27E stating this, this let-ter was never received by counsel.

words, it is likely the claim-ant lacked an understand-ing of the §§404.935(b), 416.1435(b) requirements.

The ALJ misrepresented the facts when he stated in his decision that the “repre-sentative did not provide a late submission reason that meets one of the circum-stances in §404.935(b)”. Contrariwise, counsel informed the ALJs office numerous times prior to the hearing and also at the hearing that he was only hired 7 business days before the hearing and needed a continuance to properly prepare, develop, and submit the evidence in the case. In addition, counsel informed the ALJ of outstanding records from recent treatment, which were follow up treat-ment notes.

The ALJ misrepresented additional facts stating that counsel “did not explain why these outstanding records were not obtained earlier”. Contrari-wise counsel stated at claimant’s hearing that that he did not have ERE access until the day before the hearing and

hearing on the date sched-uled; (iv) a witness would be unavailable to attend and the evidence cannot be otherwise obtained; (v) transportation is not read-ily available; (vi) you are unrepresented, and unable to respond to the NOH because of any physical, mental, education, or lin-guistic limitations (includ-ing any lack of facility with the English language).

HALLEX I-2-3-10A LU 8/29/14. “ALJ will con-sider . . . the availability of the . . . representative. . . .”

HALLEX I-2-3-10C. The ALJ will give the claimant reasonable notice of con-tinuance or postponement or hearing.

HALLEX I-2-6-52 LU 8/29/14. Typically an ALJ will grant a continu-ance so that an informed choice about representa-tion is made. There will be reasonable notice of the postponement (HALLEX I-2-3-10).

20 CFR §§404.1700, 404.1705, 404.1707, 404.1710. You may appoint someone to represent you. We will recognize a person


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therefore had no knowl-edge of what exhibits were already in the file.

The ALJ improperly blamed second counsel for the delays in in the submis-sion of evidence that were caused by prior counsel. Actions of prior counsel have no bearing whatso-ever on subsequent coun-sel’s representation. Using this as a reason not to admit evidence submitted by the second counsel is contrary to the claimant’s statutory right to have an attorney of her choice. It is also significant that the evidence counsel informed the ALJ of, consisted of evidence of followup treat-ments in 2017, which prior counsel would not have known about, given that prior counsel withdrew in April 2017.

The ALJ failed in his duty to develop the evidence after second counsel informed the ALJ of numerous additional sources of evi-dence. 20 CFR §§404.944, 416.1444: ALJ will look fully into the issues, ques-tion the claimant . . . and accept as evidence any documents that are materi-al to the issues. An ALJ has a duty to ensure that

as your rep. A rep may make any request . . . about the proceedings.

STATUTORY RIGHT TO AN ATTORNEY

Claimants have a statu-tory right to an attorney pursuant to 42 U.S.C. §406(a)-(c).

Arbitrarily denying a claimant’s recently hired attorney’s request for a continuance because the attorney needed to properly prepare the case should be an abuse of discretion as it is one of the good cause reasons an ALJ will consider. It may also be a violation of the First Amendment, and Fifth Amendment to the U.S. Constitution in that it pre-vents access to the courts under the First Amendment, discourages lawyers from representing claimants, and ultimately denies claim-ants full and fair hearings. It may also represent a Fifth Amendment equal protec-tion claim if it is shown that a linguistically impaired Haitian claimant was treat-ed differently than other claimants who requested continuances that were granted. A Freedom of


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the administrative record is fully and fairly devel-oped.§§ 404.1512(b), 416.912(b).Social Security Act 205 (42 U.S.C. §405), and the ALJ decision shall be based on evidence adduced at hearing.

Once the ALJ is informed, and there is a good cause reason for not submitting the evidence in accor-dance with §§404.935, 416.1435, the ALJ should have obtained the evidence in accordance with his long standing duty to develop the evidence as set forth in Sims v. Apfel, 530 U.S. 102 (2000) and Richardson v. Perales, 402 U.S. 389 (1971), as well was §§404.936(a), 416.1436(a): ALJ may adjourn or post-pone the hearing or reopen it to receive additional evidence any time before notifying you of a hear-ing decision. §§404.941, 416.1441 if additional evidence is submitted or if there is an indication that additional evidence is available, a prehearing case review may be con-ducted and forwarded to State agency to revise the determination. It may be fully or partially favorable. §§404.944, 416.1444.

Information Act request should be filed ( 20 CFR §401.130).

A right to counsel is pro-vided to ensure a right to a full and fair hearing. Courts recognize civil litigants do have a right to unfet-tered access to the judicial process and a right to the services of an attorney after they gain access.

Any limitation on claim-ants’ access to the courts denies them a meaningful opportunity to be heard. Counsel, who in this case was limited by the ALJ to 7 business days preparation for a hearing, if applied uniformly across the board to all attorneys, would unfairly restrict the number of attorneys who would be willing to take on a disabil-ity case.

The law specifically pro-vides that 75 days notice of a hearing is a reasonable period of time for repre-sentatives to prepare for a hearing. Anything less than 75 days should be pre-sumptively not reasonable.

An attorney who does not have a reasonable period of time to prepare for a hear-ing could cause a decline


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The ALJ looks fully into the issues, subject to §§404.935, 416.1435: accepts as evidence any documents material, may continue the hearing to a later date if material evi-dence is missing, may stop the hearing and reopen the hearing at any time before mailing the decision in order to receive new and material evidence.

in efficiency of the hearing procedures, and increase the chance of decisions not based on substantial evi-dence or errors of law.

Counsel, stands in the shoes of the claimant, and must be given proper notice (e.g., 75 days under §§404.938, 416.1438) and “opportu-nity for hearing appropriate to the nature of the case”. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, (4 L.Ed. 865, 70 S.Ct 652 (1950) The hearing must occur at a “meaning-ful time and in a meaning-ful manner”. Armstrong v. Manzo, 380 U.S. 545, 552, 14 L.Ed.2d 62, 85 S.Ct. 1187 (1965). Civil liti-gants have a right to have a meaningful opportunity to be heard under the First Amendment which guaran-tees public access to trials.(See Tenn. v. Lane, 541 US 509, 533-34 (2004)

REMEDY:

The ALJ should reopen the decision, accept the new evidence, and hold a supplemental hearing (§§404.987, 416.1487 & HALLEX I-2-9-20 LU 8/29/14, §§404.988-404.989, 416.1488-416.1489).


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SSR 13-1p. The ALJ should disqualify himself and the case should be assigned to a new ALJ given that the ALJ abused his discretion and his decision is errone-ous and without any ratio-nal basis, is against public policy, and new evidence shows the ALJ findings are contrary to the weight of evidence, or the decision is clearly not justified under the circumstances, as there has been an improper exer-cise or a failure to exercise, administrative authority.

The action of the ALJ impedes the integrity of the social security system, it violated the ABA Codes of Judicial Conduct: Canon 1: A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. Canon 2: A judge shall per-form the duties of judicial office impartially, compe-tently, and diligently. If the ALJ is informed about the evidence or it is submitted prior to the decision, it will be accepted if SSA misled the claimant; the claim-ant had a physical, mental, educational, or linguistic limitation that prevented


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him or her from informing SSA about or submitting the evidence earlier; or some other unusual, unexpected, or unavoidable circum-stances beyond the claim-ant’s control (e.g., illness, death in family, claim-ant/rep diligently sought evidence and it was not received or was received less than five days prior to the hearing).

Exhibiting the Evidence & Decision Writing Considerations. HALLEX I-2-6-59C LU 5/1/17. If ALJ was not informed or the evidence was not submit-ted timely but the circum-stances in §§404.935(b), 416.1435(b) apply, the evidence will be accepted and marked as an exhibit. The ALJ may, but is not required to address why the evidence was consid-ered in the decision. If the circumstances in HALLEX I-2-6-59C do not apply, the ALJ will not exhibit the untimely evidence and will explain the reason for not considering it.


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The Final Countdown: Living or Dying with the 5-Day Rule

Douglas Mohney, Esq.Michael Sexton, Esq.


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Avard Law Offices, P.A.PO Box 101110

Cape Coral, FL 33910(800) 814‐0808

www.avardlaw.com

Douglas Mohney, [email protected]

Michael Sexton, [email protected]

The Final Countdown: Living or Dying with the 5‐day Rule

HISTORY OF THE 5 DAY RULE Pilot Program began in Region I with 2007 being the first

full year of the program. (20 CFR §§ 405.301‐405.430) Part of the Disability Service Improvement Program Goals were to shorten decision times; close the record after

the ALJ Hearing and eliminate the AC Original plan had no exceptions to closing the record Due to uproar from “Consortium for Citizens with

Disabilities” a “good cause exception” was added.

CURRENT REGULATION 20 CFR §§ 404.935 & 416.1435 effective 1/17/2017 with

mandatory compliance nationwide required 5/1/2017(a) When submiting request for hearing, you should also

submit information or evidence…‐KEY LANGUAGE, “Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence as required in §§404.1512.416.912 no later than 5 business days before the date of the scheduled hearing”


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CURRENT REGULATION CONTINUED(b) If you have evidence required under §§404.1512,416.912

but you have missed the deadline described in paragraph (a) of this section, the administrative law judge will accept the evidence if he or she has not yet issued a decision and you did not inform us about or submit the evidence before the deadline because:

(1) Our action mislead you;

CURRENT REGULATION CONTINUED(2) You had a physical , mental, educational, or linguistic

limitation(s) that prevented you from informing us about or submitting the evidence earlier;

(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to:

(i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative or other person;

CURRENT REGULATION CONTINUED(ii) There was a death or serious illness in your immediate

family;(iii) Important records were destroyed or damaged by fire or

other accidental cause; or(iv) You actively and diligently sought evidence from a

source and the evidence was not received or was received less than 5 business days prior to the hearing.

‐HALLEX I‐2‐5‐1, Note 3 defines “business day”; it is a weekday, excluding federal holidays and it ends at 11:59 pm.


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CURRENT REGULATION CONTINUED Exhibiting the evidence and decision writing.

EVIDENCE ADMITTED ‐ HALLEX I‐2‐6‐59C. If the ALJ was not informed or the evidence was not submitted BUT the circumstances in 404.935(b) apply; the evidence will be accepted and marked as an exhibit. The ALJ may, but is not required to address why the evidence was considered in the decision.

EVIDENCE EXCLUDED – HALLEX I‐2‐6‐59C. If the circumstances in 404.935(b) do not apply, the ALJ will not exhibit the untimely evidence and will explain reasons for excluding it.

CURRENT REGULATION CONTINUED Submitting evidence before the close of the hearing and

post‐hearing submissions under the HALLEX HALLEX I‐2‐6‐78 LU 5/1/2017. The ALJ will consider

whether to grant an extension to submit the evidence, applying HALLEX I‐2‐7‐20A LU 5/1/2017. The ALJ may decline to obtain or consider the evidence unless the circumstances in 404.935(b) apply.

CASE LAW APPLIED TO EXCEPTIONS (i) Our action mislead you;

Wrong dates on the Notice of Hearing; Issues not clearly stated in the NOH, NOH issued less than 75 days before the hearing and no waiver by claimant. Black v. Astrue,2011 WL 1226027 (D. Me. Mar. 29, 2011)


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CASE LAW APPLIED TO EXCEPTIONS (ii) You had a physical, mental, educational or linguistic

limitations(s) that prevented you from informing us about or submitting the evidence earlier;

Unrepresented claimants who are illiterate in English for example and the Notices are all provided in English and not their native language; mentally ill claimants can sometimes establish good cause based on this exception. seeWalker v. Commish, 2013 WL 3833199 (U.S. Dist. Ct. M.D. Fla. 2013).

CASE LAW APPLIED TO EXCEPTIONS (3) Some other unusual, unexpected or unavoidable

circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to:

The first 2 examples have to do with illness, death, destroyed evidence and are self explanatory.

CASE LAW APPLIED TO EXCEPTIONS As practitioners it is item number (iv) which will

consistently arise in almost all cases. (iv) You actively and diligently sought evidence

from a source and the evidence was not received or was received less than 5 business days prior to the hearing.

The case law, which mainly comes from Region 1 because of the Pilot Program is definitely not “claimant friendly”


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MAINE DISTRICT COURT IS HARDASS Black v. Astrue, 2011 WL 1226027 (D.Me. March 29, 2011).

Claimant’s attorney informed ALJ before the 5 day deadline of a PRTF from a physician stating the claimant met the “B” criteria with marked ADLs and social functioning. The actual report had not yet been filed. ALJ denied the submission of the report and denied the case. Court upheld stating counsel provided no extant circumstances prevented timely submission!

R.I. DISTRICT COURT MORE LENIENT Howe v. Colvin, 147 F. Supp 3d 5 (U.S.D.C., D. R.I. 2015). ALJ

abused his discretion rejecting treating Dr’s RFC submitted 4 days before hearing. There was a clerical error in the submission‐the RFC was attached to another document when submitted. No ALJ discretion to refuse evidence if unusual circumstances caused the delay.

MASS. COURTS CAN BE REASONABLE Martins v. Colvin, 2014 WL 4437779 (D. Ma., Sept. 8, 2014).

83 pages of records were not submitted until 1 day before hearing. ALJ refused to admit. On appeal, D.C. noted counsel had made diligent efforts to obtain the records for at least 2 months prior to the hearing and the provider was uncooperative. Court found Plaintiff could not have reasonably anticipated her provider would be so unhelpful or that it would take so much time.


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RECENT CASE SCENARIOFACTS OF CASEClaimant is Haitian Immigrant, U.S. Citizen; 35 years old; illiterate in English; speaks Creole and broken English and has a 5th grade education in Haiti. His PRW is as a landscape laborer. He has severe DDD, DJD, GERD in addition to non‐exertional limitations.

PRIOR TO HEARINGNOH sent dated 2/15/2017‐NO MENTION OF 5 DAY RULE AS PRIOR TO 5/1/2017 IMPLEMENTATION

Subsequently, 3/24/2017 letter sent advising claimant he will get “at least 75 days” notice; notice will advise of the issues; must object at least 5 business days before hearing and also “send or let us know about evidence at least 5 business days before your hearing”. NOTE‐ ALL NOTICES AND CORRESPONDENCE ARE IN ENGLISH DESPITE FACT CLAIMANT STATED ON HIS ORIGINAL 3368 THAT HE DID NOT UNDERSTAND ENGLISH AND HIS PREFERRED LANGUAGE WAS CREOLE.

NO NEW NOH IS EVER ISSUED AND ORIGINAL HEARING DATE OF 5/23/2017 IS NEVER CHANGED

Claimant represented by NATIONAL LAW FIRM #1 for over 2 years BUT WITHDRAWS ON 5/08/2017

Lawyer #2 hired 5/10/2017; ONLY 7 business DAYS BEFORE HEARINGS; immediately requests continuance alleging good cause as just hired pursuant to 20 CFR § 404.936 & 416.1436.

Lawyer #2 also submits letter pursuant to 20 CFR §§ 404.935 & 416.1435 advising there is likely missing evidence. (5‐day letter)

NOTE Lawyer #2 is not granted ERE access until 5/22/2017; the day before scheduled hearing due to file not being updated with new 1696 by ODAR.

Lawyer #2 telephones and faxes continuous requests for status and follow‐ups regarding postponement and ERE access; ALL WITH NO RESPONSE FROM ODAR

5/22/2017 the day BEFORE schedule hearing, ALJ via telephone advises no postponement and he expects Lawyer #2 to make the 4 hour drive and be present with the claimant at the hearing.

Lawyer #2 submits Pre‐Hearing Memorandum on 5/22/2017

RECENT CASE SCENARIOAT THE HEARING BEFORE FLORIDA ALJ “Rode‐Kil” on 5/23/2017

ALJ refuses to admit Lawyer #2’s evidence proffer which was identified in his “5‐day letter” and blames Lawyer #2 for the failures of NATIONAL LAW FIRM #1

ALJ refuses to admit Lawyer #2’s Pre‐Hearing Memorandum

ALJ does not acknowledge or comment upon the Request For Continuance (but a letter dated 5/22/2017 denying continuance appears on the Exhibit List attached to the Unfavorable Decision)

ALJ refuse to hold the record open for critical evidence Lawyer #2 has advised is outstanding

July 11, 2017, an UNFAVORABLE DECISION is issued and the ALJ states “The representative did not explain why these records were not obtained earlier other than arguing that he was not retained in this case until May 10, 2017. I noted that the claimant had requested this hearing on May 20, 2015 (Exhibit 9B). By June 19, 2014, the claimant had been represented at all times by another representative, which is before the date he requested a hearing.”

CLAIMANT HAS ASKED IN WRITING TO HAVE ALJ “ RODE‐KIL” REOPEN & REVISE THE DECISION. COPY SENT TO HOCALJ, RCALJ, & CALJ. AN APPEAL TO APPEALS COUNCIL IS ALSO PLANNED, DEPENDING ON OUTCOME OF REQUEST TO REOPEN AND REVISE.

ALJ VIOLATED THE REGULATIONS ALJ’s actions are contrary to the regulations:

20 CFR § 404.938(a)‐ In the 3/24/2017 letter the claimant was advised he would get a new 75 day clock and new NOH‐NEVER HAPPENED

There is a good reason for the 75‐day rule. SSA recognized in the Comments and Responses to the Notice of Proposed Rule Making, that less than 75 days notice (e.g. 60 days) was not adequate due to HIPAA timeframes for providing needed medical evidence!

Therefore, anything less than 75 days notice should be presumptably unreasonable. Simply considering efficiency of the hearing process; without allowing adequate time to prepare a case will cause a decline in the hearing process and lead to even more decisions not based on substantial evidence and containing errors of law. So now more appeals.

20 § CFR 404.936(e)(2) & (f)(2)(ii)‐Lawyer #2 objected to hearing date and asked for a continuance based on fact he was just appointed within 30 days of the hearing. The law states in (ii) your representative was appointed within 30 days of the scheduled hearing and needs additional time to prepare;

HALLEX I‐2‐3‐10A & 10C; I‐2‐6‐52‐ ALJ will grant continuance and give reasonable notice


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ALJ DENIED RIGHT TO COUNSEL AND ACCESS 42 U.S.C. § 406(a)‐(c); 20 CFR §§ 404.1700‐404.1710 as well

as the 1st amendment was violated by the ALJ as claimant’s attorney was not permitted the time to adequately prepare for the hearing and his actions interfered with the claimant’s right to an attorney.

If such a decision is allowed to stand; no attorney will take a case on short notice or where a hearing is already scheduled

Due process clause of the 5th amendment also violated as claimant denied a “full and fair” hearing.

DENIAL OF RIGHT TO ACCESS, CONT’D “Civil litigants have a right to a meaningful opportunity to

be heard under the First Amendment…”Tenn. V. Lane, 541 US 509, 533‐34(2004)

“Opportunity for a hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 US 306,313 (1950).

The hearing must occur at a “meaningful time and in a meaningful manner.”Armstrong v. Manzo, 380 US 545,552 (1965)

ALJ’S REFUSAL OF EVIDENCE IS AN ABUSE OF DISCRETION ALJ has clearly abused his discretion contrary to 20 CFR §

404.935(b) which REQUIRES acceptance of the evidence after the 5‐day period but BEFORE the decision when there unavoidable, unusual or unexpected circumstances beyond the claimant’s control

How could this claimant control the fact her first lawyers withdrew less than 20 days before the hearing!

Plus remember, this claimant is illiterate in English and Creole so how can he understand 404.935????


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THE ALJ MISREPRESENTED THE FACTS ALJ “Rode‐Kil” states in his decision, “representative did

not provide a late submission reason that meets one of the circumstances in 404.935(b).”

WRONG‐ Atty#2 advised ODAR numerous times prior to hearing and at the hearing that he was: Just retained 7 business days earlier and needed

continuance; Not provided ERE access to review the file until day

before hearing; Aware of recent treatment for the claimant

ALJ HAS FAILED TO OBTAIN EVIDENCE ALJ “Rode‐Kil” has an independent duty to develop the

record. 20 CFR §§ 404.941; 404.944; 404.935; 404.1512(b), etc. In this case, once Law Firm#1 withdrew‐ the claimant was unrepresented! So there was also a HEIGHTENED DUTY to develop the record. Cowart v. Schweiker, 662 F.2d 731 (11th Cir. 1981). Plus claimant unable to communicate in English.

ALJ was advised of additional evidence he should have either obtained it himself or allowed Lawyer #2 to submit it in accordance with his own duty. Sims v. Apfel, 530 US 102 (2000) as well as 404.936

REMEDIES AND TOOLS Request ALJ “Rode‐Kil” to re‐open his decision; accept the

new evidence, and hold a supplemental hearing pursuant to 404.987; 404.988; 404.989 & HALLEX I‐2‐9‐20. (highly unlikely to happen)

Request the ALJ to disqualify himself per SSR 13‐1P and the case should be assigned to a new ALJ based on abuse of discretion; decision clearly erroneous and without any rational basis, or is clearly not justified under the circumstances, as there has been an improper exercise or a failure to exercise, administrative authority.

Appeal to AC (I know, obvious!)


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REMEDIES AND TOOLS Potential ethical considerations

The actions of ALJ “Rode‐Kil” impede the integrity of the social security system.

ABA Code of Judicial Conduct: Canon 1: A judge shall uphold and promote the

independence, integrity, and impartiality of the judiciary, and shall avoid impropriety

REMEDIES AND TOOLS Canon 2: A judge shall perform the duties of judicial

office impartially, competently, and diligently

Remember, 20 CFR § 404.935(b) states the late evidence WILL BE ACCEPTED if no decision has been made and you can establish one of the exceptions.

In the “Rode‐Kil” case we can show: (1) Our action mislead you‐the defective NOH and the

subsequent letter stating another NOH was forthcoming and the claimant would get 75 days notice.

REMEDIES AND TOOLS (3)Some other unusual, unexpected, or unavoidable

circumstance beyond your control prevented you from informing us about or submitting evidence earlier;

HIS LAWYER QUIT 3 WEEKS BEFORE HEARING AND THE CLAIMANT DOES NOT SPEAK, UNDERSTAND, READ OR WRITE IN ENGLISH VERY WELL;


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CONCLUSIONHowe v. Colvin, 147 F. Supp 3d 5 (U.S.D.C., D.RI 2015) There is no ALJ discretion to refuse evidence if unusual

circumstances caused the delay. SS Act is construed liberally to further remedial purposes

and the proceedings are not strictly adversarial (YEA, RIGHT!)

ALJ bears responsibility for adequate development of the record.

Exclusion of probative evidence violates the tenets of the SS Act and raises form over substance.

CONCLUSION CONT’DPioneer Inv. Servs. v. Brunswich Assoc., 507 US 380,395

(1993); The Supreme Court stated:“the determination is an equitable one, taking into account the relevant circumstances, prejudice to the applicant, length of delay, impact on proceedings, reason for delay, whether it was in reasonable control of the movant, and whether the movant acted in good faith”

Hopefully for our claimants reason and equity will prevail as these cases make their way into the federal courts; but for now we are facing an extreme shift to mortal combat at the hearing level.

AVARD LAW OFFICES, P.A.PO Box 101110

Cape Coral, FL 33910(800) 814‐0808

www.avardlaw.com

Douglas Mohney, [email protected]

Michael Sexton, [email protected]


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the final countdown: living or dying with the five-day...

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