The new SSA rules for processing Social Security disability claims are both procedural and substantive. I will start with one from the former camp.
Provide Or Inform
Starting on January 17, 2017, SSA will require all claimants to either provide SSA with all relevant evidence or inform SSA of all relevant evidence at least 5 days before a claimant’s hearing. Note that compliance with this rule is not mandatory until May 1 (May Day–how appropriate.) It is possible that some Administrative Law Judges (ALJs) will demand claimants follow this rule sooner that May 1, 2017. For this reason, it makes sense to start preparing for it now.
The 5-day rule is designed, in theory, to make the processing of disability claims uniform and easier. The uniformity argument is weak in that it scarcely makes any difference to the merits of claim when a claimant submitted his or her relevant evidence.
What SSA is more interested in with this rule is ensuring that ALJs have all the evidence at the time of the hearing. This makes sense. Most claimants would do this anyway, regardless of any rule change. But, as always, the devil is in the details.
ALJs Still Have To Rule On A Complete Record
The first issue to consider is that ALJs are still obligated to rule on a complete record. SSA did not change that requirement. So, there really is no meaningful penalty for not complying with this 5-Day rule. No matter when a claimant submits his or her evidence, so long as the judge is still deciding the case, she still has to accept the evidence and make it part of her decision.
Doctors And Medical Records Are The Rub
The bigger issue is likely to be the difficulty in providing evidence, particularly medical evidence, on any firm deadline. The people who wrote this rule have apparently never tried to order medical records. If they had, they would know that some doctors and clinics will not promptly provide their records no matter how many times the claimant asks for them. For many doctors, responding to medical records requests is the last thing they are concerned with. For many doctors, even keeping medical records appears to be a very low priority. Indeed, there are doctors still handwriting their notes, creating useless, illegible messes.
Inform Looks Better Than Provide
It will take time to see how claimants and their lawyers respond to the 5-Day rule. It appears the simplest way will be to write to the ALJ more than 5 days before the hearing. In this letter, a lawyer can simply list what evidence she thinks is relevant. This complies with the new requirement. I would not be surprised to see lawyers write to ALJs and say something along the lines of “here are the doctors we know of. If you think you can get these records before the hearing, have at it.”
Lawyers And Their Clients Will Have To Cooperate More
This rule does mean that claimants and their lawyers will have to work more closely on getting medical records. Claimants will need to provide very detailed lists of all their doctors. Lawyers will have to do a better job of asking questions about doctors and hospitals to make sure they get the records all ordered.
There is likely to be a great deal of confusion as these and other new rules take hold. SSA could revise or even drop them if they prove unworkable. But, starting May 1, the 5-day rule will be in place. Next time, we look at the substantive rules.
