A complete medical record is paramount in getting your Social Security disability claim approved. At the hearing level, the most common question I get from my clients is, “are all the records in?” The Social Security Administration recently enacted a new regulation that requires the Administrative Law Judge be provided, or informed of, all written evidence within five business days of the hearing. 20 CFR 404.935.
Attorney representatives typically request, pay for and submit medical records prior to a hearing. For the reasons explained below, timing is key in order to comply with the new 5-day rule.
First, it would be impractical for representatives to constantly hound all of their clients in case some new and material medical evidence has come into existence. Too much time would be wasted and the representation of SSD claimants would no longer be a viable practice. On the other end of the spectrum, representatives must exercise due diligence in pursuing relevant evidence in their clients’ claims.
Second, depending on the state, claimants can wait up to two years for a hearing after the previous denial. Social Security usually sends a Notice of Hearing about 90 days before the date of the hearing. This creates a dilemma. ALJs are very concerned with the claimant’s recent medical evidence, which shows whether ongoing benefits are warranted and whether any medical improvement has occurred or is likely to occur. So, if the file is updated too early, additional updates will be necessary to add new evidence. If the file is updated too late, the 5-day rule might be violated. Depending on the source, requests for records can be outstanding for 30 days or more, despite follow-ups and re-requests, before the records are produced. This results in a small window in which records requests will generate complete submissions just in time but not too late.
The best way to handle this situation is with a team effort. When this issues arises in hearings, I have had multiple judges describe to my clients a “two-way street,” where representatives and clients both have an obligation to communicate with each other. If you don’t notify your representative with your new address or phone number, your representative has no way to reach you and therefore no way to know where you have been going for treatment. They can update with sources they already know about but not with new sources. The longer you do not return their phone calls or respond to their letters, the more likely you will violate the 5-day rule and a strict judge will refuse to consider key evidence. If your representative is unable to reach you after several attempts, he or she is allowed to drop your case.
An ALJ can approve a case without a hearing if the evidence is strong enough, although this is very rare. However, as above, it is impractical for representatives to frequently contact their clients just in case there is new, significant medical information. A representative will always contact their clients to update the file before the hearing. Until then, clients must contact their representatives with new medical information so the representative can obtain the records and submit them to the ALJ. New medical information might be a new doctor, diagnosis, test or hospitalization.