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In the New England states, we are fortunate to receive 75-day notice of disability hearings. This is a carry-over of the DSI process which was implemented in SSA Region I. We also must submit evidence 5 business days ahead of the hearing. See 20 C.F.R. 405.331. In the rest of the country, you only receive 20 days notice of administrative law judge hearing, but you can bring new evidence to the hearing, and it must be considered by the ALJ.

Ideally, all your evidence is submitted well ahead of the hearing. This is one of the best practices of Social Security claimants' representatives. Nevertheless, sometimes there is an important piece of evidence, usually a medical record or a treating doctor's opinion, that could not be obtained earlier.

The regulation specifies 5 business days. Weekends and holidays are not counted. And when counting the 5 days, our judges at the Portland, Maine ODAR do not count the day of the hearing. As a result, the 5-day rule is really an 8-day rule. For a hearing that is held on a Thursday, your evidence must be received by Wednesday of the previous week. This is a trap for the unwary. 

Also, watch out for Monday hearings, and for Tuesday hearings following a holiday weekend. Operation of the rule means that there are two intervening weekends, and evidence must be submitted 10 days ahead of the hearing.

I do not agree with this 8-day interpretation of the rule, for what it's worth. Counting back the business days from a Thursday hearing, I think we can agree that Wednesday is 1 day before the hearing. Tuesday would be 2 days, Monday 3 days… skip the weekend… Friday would be 4 and Thursday would be 5 business days ahead of the hearing. It seems like common sense.

You can lose a case, and have a much worse chance on an Appeals Council request for review, if your evidence is not submitted timely at the hearing level. Some judges do not enforce the 5-day rule. Others rigidly enforce it. Since we do not know the identity of the judge ahead of the hearing, you cannot take a chance. 

To avoid problems, get your new evidence in early, preferably no later than 10-days ahead of the hearing. As an additional benefit, a claim with all the evidence submitted early has a better chance for an on the record decision, which saves time for everyone.


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