Administrative Conference of the United States

SSA DISABILITY BENEFITS ADJUDICATION PROCESS:
ASSESSING THE IMPACT OF THE REGION I PILOT PROGRAM

Final Report: December 23, 2013

This report was prepared by the Office of the Chairman of the Administrative Conference of the
United States. The views expressed do not necessarily reflect those of the Council, the members
of the Conference, or its committees.

CONTRIBUTORS

GRETCHEN JACOBS
RESEARCH DIRECTOR
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

FUNMI OLORUNNIPA
ATTORNEY ADVISOR
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

AMBER WILLIAMS
ATTORNEY ADVISOR
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

TABLE OF CONTENTS

EXECUTIVE SUMMARY ................................................................................................................ 1

I.
   THEORY OF CLOSING THE RECORD ....................................................................................... 4

II.
   ADJUDICATION OF DISABILITY BENEFITS CLAIMS: PROCESS & LEGAL STANDARDS .......... 6

A.
   Summary of SSA’s Disability Benefits Adjudication Process ....................................... 6

B.
   SSA Legal Standards: Hearing Notices & Submission of Evidence .............................. 9

1.
   Social Security Act ....................................................................................................... 9

2.
   Regulations Governing Regions II – X ...................................................................... 10

3.
   Region I Pilot Program ............................................................................................. 11

4.
   Hearing Office Practices ........................................................................................... 13

C.
   Past Agency Regulatory Initiatives: Hearing Notices & Submission of Evidence ...... 14

1.
   The Disability Service Improvement Program .......................................................... 14

a.
   2003 Hearing: Announcement of Proposals for Reform........................................ 14

b.
   2004 Hearing: Update on Reform Plan .................................................................. 15

c.
   2005 NPRM: The Disability Service Improvement Program Takes Shape ........... 16

d.
   2005 Hearing: Discussion of the Disability Service Improvement Program ......... 18

e.
   2006 Final Rule: Disability Service Improvement Program Implemented ............ 20

f.
   2006 Hearing: Assessment of DSI and Plan for Nationwide Implementation ....... 21

2.
   Elimination of Most Aspects of DSI Leads to the Current Pilot Program ................ 22

a.
   2007 NPRM: Proposal to Implement DSI Nationally ........................................... 22

b.
   2009 NPRM: Proposed Elimination of the DSI Program ...................................... 24

c.
   2011 Final Rule: Some Aspects of DSI Remain in Region I ................................. 24

III. ASSESSMENT OF THE IMPACT OF SSA’S PILOT PROGRAM IN REGION I ............................... 24

A.
   Empirical Analysis of SSA Data: Comparing the Regions .......................................... 25

B.
   Survey & Interview of SSA Employees: Summary of Responses ............................... 31

1.
   Perspectives on Hearing Notices & Submission of Evidence.................................... 32

a.
   Overall Views of the Region I Pilot Program ........................................................ 32

b.
   Five-Day Rule ........................................................................................................ 38

c.
   75-Day Notice Requirement .................................................................................. 43

2.
   Current Practices Regarding Hearing Notices & Submission of Evidence .............. 47

a.
   Current Practices in Region I ................................................................................. 47

b.
   Current Practices in Regions II – X ....................................................................... 57

c.
   Current Practices Regarding Obtaining Medical Records ..................................... 63

C.
   Views of Third Party Organizations on Region I Pilot Program .................................. 65

1.
   Administrative Law Judge Organizations ................................................................. 65

a.
   Association of Administrative Law Judges............................................................ 65

b.
   Federal Administrative Law Judges Conference ................................................... 67

2.
   Claimant Representative Organizations.................................................................... 68

a.
   National Organization of Social Security Claimants’ Representatives.................. 68

b.
   National Association of Disability Representatives .............................................. 71

3.
   American Bar Association ......................................................................................... 73

D.
   Judicial Decisions Applying the Pilot Program’s Evidentiary Standards .................... 74

1.
   Majority View: Affirming Disallowance of Untimely Evidence ................................ 74

2.
   Minority View: Exclusion of Evidence Improper ...................................................... 78

IV. RECORD CLOSURE IN OTHER FEDERAL AGENCY ADJUDICATION PROGRAMS ..................... 79

A.
   Closure of the Record Prior to the Hearing: A Less Common Approach .................... 79

B.
   Post-Hearing Closure of the Record: The Predominant Practice ................................. 81

C.
   Open Record: Unique Approach by the Veteran’s Administration .............................. 84

V. GUIDING PRINCIPLES AND OBSERVATIONS: REGION I PILOT PROGRAM ............................... 87

A.
   Guiding Principles ........................................................................................................ 87

B.
   Other Observations ....................................................................................................... 89

1.
   Evidentiary Submission and Record Closure: Good Cause Exceptions ................... 89

2.
   Data Considerations .................................................................................................. 90

a.
   Data ........................................................................................................................ 90

b.
   Technology ............................................................................................................ 91

3.
   Conclusion ................................................................................................................. 91

ii

LIST OF TABLES
Table 1: Summary of Region I Record Closure Rule ............................................................. 12
Table 2: Comparison of Proposed & Final DSI Program Rule (2005-06) .............................. 20
Table 3: SSA Survey Respondents: Overall Views of Pilot Program..................................... 32
Table 4: Heat Map of Responses by Region I ALJs to Survey Question on Experiences
Under Pilot Program ................................................................................................................ 33
Table 5: Heat Map of Responses by Regions II-X ALJs to Survey Question on Experiences
Under Pilot Program ................................................................................................................ 34
Table 6: Heat Map of Responses by Region I ALJs to Survey Question on Claimant
Experiences Under the Pilot Program ...................................................................................... 35
Table 7: Heat Map of Responses by Region II-X ALJs to Survey Question on Claimant
Experiences Under the Pilot Program ...................................................................................... 36
Table 8: Views of Region I ALJs/HODs on Five-Day Rule ................................................... 39
Table 9: Views of Regions II-X ALJs/HODs on Five-Day Rule ............................................ 39
Table 10: Responses of Region I ALJs/HODs to Survey Question on Propriety of Timeframe
in Five-Day Rule ...................................................................................................................... 40
Table 11: Responses of Regions II-X ALJs/HODs to Survey Question on Propriety of
Timeframe in Five-Day Rule ................................................................................................... 40
Table 12: Responses of Region I ALJs/HODs to Survey Question on Experiences Under 75Day Hearing Notice Requirement ............................................................................................ 44
Table 13: Responses of Regions II-X ALJs/HODs to Survey Question on Experiences Under
75-Day Hearing Notice Requirement ...................................................................................... 44
Table 14: Responses of Region I ALJs/HODs to Survey on Propriety of Timeframe in 75Day Hearing Notice Requirement ............................................................................................ 45
Table 15: Responses of Regions II-X ALJs/HODs to Survey Question on Propriety of
Timeframe in 75-Day Hearing Notice Requirement ............................................................... 45
Table 16: Responses of Region I ALJs/HODs to Survey Question on Timing of Hearing
Notices ..................................................................................................................................... 48
Table 17: Responses of Region I ALJs to Survey Question on Timeliness of Evidence
Submissions Under Five-Day Rule.......................................................................................... 49
Table 18: Responses of Region I HODs to Survey Question on Timeliness of Evidence
Submissions Under Five-Day Rule.......................................................................................... 49
Table 19: Heat Map of Responses by Region I ALJs to Survey Question on Claimants’
Reasons For Submission of Evidence Less Than Five Days Before Hearing ......................... 50
Table 20: Responses by Region I ALJs to Survey Question on Claimants’ Representatives
Reasons For Submission of Evidence Less Than Five Days Before Hearing ......................... 51
Table 21: Heat Map of Responses by Region I ALJs to Survey Question on Unrepresented
Claimants’ Reasons For Submission of Evidence Less Than Five Days Before Hearing....... 52
Table 22: Heat Map of Responses by Region I ALJs to Survey Question on Unrepresented
Claimants’ Reasons for Submission of Evidence After the Hearing ....................................... 53
Table 23: Responses by Region I ALJs to Survey Question on Amount of Time Granted for
Submission of Additional Evidence Under Good Cause Exception ........................................ 54
iii

Table 24: Responses of Regions II-X ALJs/HODs to Survey Questions on Timing of Hearing
Notices ..................................................................................................................................... 58
Table 25: Responses by Regions II-X ALJs to Survey Question on Frequency of Claimants’
Submission of All Material Evidence Five Days Before Hearing ........................................... 59
Table 26: Responses by Regions II-X HODs to Survey Question on Frequency of Claimants’
Submission of All Material Evidence Five Days Before Hearing ........................................... 59
Table 27: Heat Map of Responses by Regions II-X ALJs to Survey Question on Reasons by
Claimants’ Representatives for Submission of Evidence Less Than Five Days Before Hearing
.................................................................................................................................................. 60
Table 28: Heat Map of Responses by Regions II-X ALJs to Survey Question on Reasons by
Unrepresented Claimants for Submission of Evidence Less Than Five Days Before Hearing
.................................................................................................................................................. 62

LIST OF FIGURES
Figure 1: Number & Timing of Document Submissions Nationally, CYs 2010-12............... 29

Figure 2: Number & Timing of Document Submissions in Region 1, CYs 2010-12 ............. 30

iv

EXECUTIVE SUMMARY
There are several reasons why “closing the record” is an important part of the
adjudicatory structure: (1) timeliness—a decision cannot be rendered until all relevant evidence
and information are before the decision-maker1; (2) fairness—the parties to a proceeding must
have access to all evidence and information2; and (3) accuracy—the “case” must have a
beginning and an end in order to be decided and evaluated.3 While the Social Security
Administration (“SSA”)’s disability benefits adjudication process is nonadversarial, most of the
reasons for closing the record cited above have relevance both as to SSA Appeals Council
review and for quality assurance purposes. This does not mean that exceptions for good cause
cannot be made, but rather that the case as a unit of analysis must be preserved in order to be
accurately evaluated. SSA’s Region I pilot program, which is intended to close the evidentiary
record five days before the hearing date subject to good cause exceptions (what we call “the fiveday rule), and which requires notice of the ALJ hearing 75 days before the hearing date (what we
refer to as “the 75-day notice requirement”), provides a laboratory of sorts to test and compare
these theoretical propositions.
Issuance of advance notices of hearings and closure of the administrative (evidentiary)
records are well-established adjudicatory concepts. Different fora may employ varying
timeframes, or provide divergent bases for exceptions, but it is the rare tribunal that does not use
these dual techniques in some form. In this respect, the Region I pilot program—with its 75-day
notice requirement and five-day rule—operates in familiar adjudication territory. In other
respects, however, the pilot program represents a sea change for SSA in that it mandates issuance
of hearing notices earlier (i.e., by about two months) and closure of the evidentiary record sooner
(i.e., pre-hearing closure subject to good cause exceptions) as compared to regulations applicable
to Social Security disability adjudications in the nine other SSA regions.
SSA commissioned the Administrative Conference of the United States (“Administrative
Conference” or “Conference”), through its Office of the Chairman,4 to study the impact of the
Region I pilot program on the adjudication process and to examine stakeholders’ respective
views of this program. We brought a variety of methodological approaches—and resources—to
bear on these tasks. These efforts included: (1) analyzing SSA-provided data from case
management and other management information systems; (2) administering online surveys to
SSA Administrative Law Judges (“ALJs”) and Hearing Office Directors (“HODs”) on a
nationwide basis; (3) interviewing 80 SSA officials holding a variety of positions, ranging from

1

See Soc. Sec. Admin., Federal Old-Age, Survivors, and Disability Insurance Benefits, Black Lung Benefits, and
Supplemental Security Income for the Aged, Blind, and Disabled, Regulations for Determining Claimant Rights,
2
See The Challenges of Achieving Fair and Consistent Disability Decisions: Hearing Before the Subcomm. on Soc.
Sec. of the H. Comm. on Ways & Means, 113th Cong. 6 (2013) (statement of David G. Hatfield, A.L.J. (ret.)),
available at http://waysandmeans.house.gov/uploadedfiles/hatfield_testimony32013.pdf (noting that “[t]he ALJ
needs all the facts to provide a full, inquisitorial hearing and make a reasoned decision”).
3
See ABA HOUSE OF DELEGATES, REPORT 115, at 17 (1995) [hereinafter ABA REPORT] (noting that “[n]o appellate
system can function under . . . circumstances” in which “claimants . . . are able to keep a case spinning for any
number of years, up and down the [appellate] ladder”).
4
While this report is issued by the Office of the Chairman of the Administrative Conference, for ease of reference,
this Office is referred to herein as simply the “Administrative Conference’ or “Conference.” The views expressed in
this report are those of the Chairman and staff of the Administrative Conference, and do not necessarily reflect those
of the members of the Conference or its committees.
1

ALJs, to decision writers, to Appeals Council officials; (4) meeting with representatives from
five private organizations (such as the National Organization of Social Security Claimants’
Representatives, the Association of Administrative Law Judges, and the American Bar
Association) who provided a range of perspectives on the Region I pilot program and, more
generally, the SSA disability benefits adjudication process; and, (5) researching the legal and
historical underpinnings of the pilot program, as well as the record closure practices in other
federal administrative adjudication programs.
This report examines the impact of the Region I pilot program and provides guiding
principles to SSA. Part I provides a brief overview of scholarly and judicial theories on closure
of the evidentiary record in administrative proceedings at the hearing and appellate levels. Part
II summarizes SSA’s past regulatory initiatives concerning, and current standards for, issuance
of notices of hearing and submission of evidence. Part III represents the analytical heart of the
report. To the task of quantitatively assessing the impact of the Region I pilot program, we took
primarily a comparative approach—namely, comparing the results from analyses of SSAprovided data for, and survey responses from, Region I (which employs the pilot program) with
other regions (predominantly, Regions VII and VIII) in which different notice of hearing and
evidentiary submission rules apply. In this part, we summarize the results from our comparative
empirical studies, interviews with stakeholders, and judicial decisions where the disallowance of
untimely evidence was at issue. (An accompanying appendix provides, among other things,
complete results from our empirical studies and surveys.)5 Part IV explores the record closure
practices of other federal agencies in their respective administrative adjudication proceedings.
Finally, Part V closes the report by offering guiding principles and other observations that SSA
wish to consider when contemplating future efforts in this area, including potential expansion of
the pilot program outside Region I. We highlight some of our findings immediately below.
From an empirical perspective, our analyses of SSA-provided data showed that the pilot
program, as currently implemented in Region I, appears to be making modest strides toward
advancing the goals set forth by SSA at its inception—namely, improving the efficiency,
accuracy, and timeliness of the Social Security disability benefits adjudication process. We
compared the three regions (i.e., Regions I, VII, and VIII)—along with national averages—
across the same key variables relating to case processing efficiency, record development, remand
rates on certain evidentiary issues, timing and volume of evidentiary submissions, and the time
interval between notice and hearing. For some of these variables, our analyses did not suggest
strong correlations between the pilot program and potential (theorized) effects such as decreasing
the number of cases placed in post-hearing status, or reducing average case processing times.
This is likely due, in whole in part, to the fact that the sources for SSA’s data were agency-wide
case processing and management systems, rather than databases tailored to the pilot program.
Nevertheless, our empirical analyses produced several notable results. Foremost among
these findings is that the Region I pilot program (and, most particularly, the five-day rule) may
be literally “bending the curve” in terms of the volume and timing of evidentiary submissions
relative to the hearing date. Analysis of SSA data covering the past three years shows that, in
Region I, documents have been submitted with greater frequency in the 6-20 days before

5

See APPENDIX TO SSA DISABILITY BENEFITS ADJUDICATION PROCESS: ASSESSING THE IMPACT OF THE REGION I
PILOT PROGRAM (Dec. 23, 2013) [hereinafter APPENDIX TO REPORT ON REGION I PILOT PROGRAM].
2

hearings (and, concomitantly, with less frequency in the 0-5 days before hearings, during
hearings, or post-hearing) compared to the two other studied regions and the nation. While the
data were not sufficiently robust to establish a clear causal link to the pilot program, this finding
nonetheless suggests an empirical correlation between the pilot program and earlier submission
of documents relative to hearings.
In addition, our data analyses showed that, since 2007 (i.e., the first full year of the pilot
program), the average annual time interval between issuance of the hearing notice and the
hearing date have risen faster and higher in Region I than in either of its sister regions (Regions
VII and VIII) or the nation as a whole. This trend suggests a strong correlation between the pilot
program’s 75-day notice requirement and Region I’s fast-rising average time interval between
notice and hearing. However, given that such time intervals also rose significantly across all
regions over the same eight-year time period (albeit at a slower pace), it is also likely that there
are other causal factors at play beyond simply the 75-day notice requirement. More detailed data
would be needed to conduct the types of statistical analyses sufficient to formulate more
definitive causal attributions.
Another key aspect of this study involved interviews and surveys of SSA ALJs and other
hearing office staff throughout the country to get their views on—and “real world” practices
under—the pilot program. Across all regions, strong majorities of ALJs and HODs responding
to our surveys viewed the pilot program favorably and supported its expansion outside Region I.
Perceived benefits included encouraging parties to timely submit evidence before hearings,
improving the evidentiary record, and allowing more efficient adjudication of cases. About the
only potential negative effects on claimants with which ALJs and hearing office staff voiced
modest concerns, in both survey in interview responses, were: (1) difficulties faced by
unrepresented claimants in understanding and adhering to the five-day rule, and (2) delayed
production of requested medical records by health care providers which, in turn, could impede
timely submission of evidence. (These concerns, among others, are also shared by the
representative community).
With respect to current practices relating to implementation of the pilot program in
Region I, we learned through interviews and surveys that, while the 75-day notice requirement is
regularly followed by most hearing offices, implementation of the five-day rule varies
throughout the region. These variations arise for a variety of reasons, including: (1) claimants
and representatives fail to timely submit evidence; (2) when evidence is submitted less than five
days before a hearing, some ALJs nonetheless invariably allow late evidentiary submissions
without inquiry; and (3) ALJs have different perspectives on their discretion under the five-day
rule, as well as circumstances satisfying the “good cause” exception. Accordingly, even though
views of the pilot program are favorable throughout hearing offices in Region I, variations in
implementation and application of the pilot program—predominantly relating to the five-day
rule—makes assessing the overall “real-world” impact (or potential impact) of the pilot program
particularly challenging.
Finally, the report concludes with guiding principles and other observations the agency
may wish to consider when assessing the status of the current pilot program in Region I and
expansion possibilities. Chief among the principles is the agency’s commitment to the program,
3

especially in its messaging and enforcement of the five-day rule. Uncertainty in some quarters
about the agency’s commitment to the program may be leading to varying document submission
practices among claimants or their representatives, as well as uneven application of the five-day
rule by ALJs and the Appeals Council. We also suggest that the agency capture data specifically
tailored to key aspects of the pilot program to facilitate program assessment and, if warranted,
modifications or improvements. Moreover, in lieu of the current formulation of the good cause
exception—an exception which has three-prongs, only one of which must be satisfied for
admission of untimely evidence—the agency may wish to consider introducing a balancing
approach whereby adjudicators weigh specific, enumerated factors in order to determine whether
to admit untimely evidence. Lastly, we suggest that the agency consider the needs of
stakeholders, communicate and support whatever regulatory approaches the agency decides to
take with respect to the pilot program, and ensure that, if some form of record closure and/or
hearing notice requirements are retained, these rules are being consistently enforced across all
applicable regions. The Administrative Conference believes that with SSA’s experience and
knowledge, as well as the information in this report, the agency is well-equipped to determine
how to best proceed.
I.

THEORY OF CLOSING THE RECORD

Closing the administrative record—as an instrument to promote timeliness, fairness, and
accuracy—is not a new concept. The House Committee on Ways and Means, Subcommittee on
Social Security debated this idea as early as 1975.6 Legislation—which did not pass—was
proposed five years later in the House that would have introduced a “modified closed record
requirement” into the adjudicatory process.7 Both the Social Security Advisory Board
(“SSAB”) and academics have weighed in on this idea for years.8 The Social Security
Administration (“SSA”) itself has developed various regulatory proposals over the course of the
past decade relating to the timing of hearing notices and closure of the record.9 The

6

See Frank R. Lindh, An Examination of the Proposed “Closed Record” Administrative Law Judge Hearing in the
Social Security Disability Program, 6 W. NEW ENG. L. REV. 745, 763-65 (1984) [hereinafter An Examination of the
Proposed “Closed Record”].
7
Id. at 766 (internal quotation marks omitted).
8
See SOC. SEC. ADVISORY BD., CHARTING THE FUTURE OF SOCIAL SECURITY’S DISABILITY PROGRAMS: THE NEED
FOR FUNDAMENTAL CHANGE (2001) (encouraging Congress and SSA to again review whether the record should
close after the ALJ decision); FRANK S. BLOCH, JEFFERY S. LUBBERS & PAUL R. VERKUIL, SOC. SEC. ADVISORY
BD., INTRODUCING NONADVERSARIAL GOVERNMENT REPRESENTATIVES TO IMPROVE THE RECORD FOR DECISION IN
SOCIAL SECURITY DISABILITY ADJUDICATIONS: A REPORT TO THE SOCIAL SECURITY ADVISORY BOARD (2003)
[hereinafter A REPORT TO THE SSAB] (recommending that SSA close the record after the ALJ hearing, subject to
certain qualifications); Frank S. Bloch, Jeffery S. Lubbers & Paul R. Verkuil, The Social Security Administration’s
New Disability Adjudication Rules: A Significant and Promising Reform, 92 CORNELL L. REV. 235 (2007)
(expressing cautious optimism about the Disability Service Improvement (“DSI”) program, including closing the
record); Robert E. Rains, A Response to Bloch, Lubbers & Verkuil’s The Social Security Administration’s New
Disability Adjudication Rules: A Significant and Promising Reform, 92 CORNELL L. REV. 249 (2007) (responding to
others’ assessment of DSI and praising the 75-day notice requirement).
9
See 1988 Draft Proposal, supra note 1; Soc. Sec. Admin., Administrative Review Process for Adjudicating Initial
Disability Claims, 71 Fed. Reg. 16,424, 16,427 (Mar. 31, 2006) (to be codified at 20 C.F.R. pts. 404, 405, 416, 422)
[hereinafter 2006 Final Rule]; Soc. Sec. Admin., Amendments to the Admin. Law Judge, Appeals Council, and
Decision Review Bd. Appeals Levels, Proposed Rules, 72 Fed. Reg. 61,218-45 (Oct. 29, 2007) [hereinafter 2007
Proposed Rules].
4

Administrative Conference of the United States, too, has issued recommendations and reports on
these and other aspects of SSA’s disability benefits adjudication process.10
As scholars have noted, “[t]he concept of ‘closing’ a record arises in two very different
contexts: preparing a record for decision and preserving a record of decision for review.”11 In an
administrative hearing, the administrative law judge (“ALJ”) reviews evidence in order to come
to a decision determining the rights of a party. A hearing should be a “forum for receiving
testimony and testing the evidence, not . . . a forum for initially presenting new documentary
evidence.”12 As one retired SSA ALJ recently stated in his congressional testimony:
The ALJ needs all the facts to provide a full, inquisitorial hearing and make a
reasoned decision. Too often hearings become essentially discovery proceedings,
where salient facts and evidence are being introduced for the first time, without
the benefit of review or thought. This naturally protracts the process and some
decisions are issued without consideration of all the facts.13
The Social Security Act sets forth the dual mandate that ALJs—as the decision-making
delegatees of the Commissioner—“make findings of fact, and decisions as to the rights of any
individual applying for payment,”14 and that the decision be based on “evidence adduced at the
hearing.”15 If material evidence is submitted in an untimely manner that precludes the ALJ from
reviewing the record prior to the hearing, the ALJ’s ability to fulfill his or her statutory mandate
is necessarily hampered. As SSA noted in the preamble to a proposed rulemaking over 20 years
ago:
The hearing process cannot function well or efficiently if additional evidence is
submitted so late that the ALJ is unable to assess it as necessary to inquire fully
into the issues at the hearing. Additional evidence may be too voluminous and
complex to be assessed quickly. It may present new issues or require that other
additional evidence be obtained.16

10

See Admin. Conf. of the U.S., Recommendation 78-2, Procedures for Determining Social Security Disability
Claims, 43 Fed. Reg. 27,508 (June 26, 1978); Admin. Conf. of the U.S., Recommendation 86-7, Case Management
as a Tool for Improving Agency Adjudication, 51 Fed. Reg. 46,989 (Dec. 30, 1986); Admin. Conf. of the U.S.,
Recommendation 87-6, State-Level Determinations in Social Security Disability Cases, 52 Fed. Reg. 49,142 (Dec.
30, 1987); Admin. Conf. of the U.S., Recommendation 87-7, A New Role of the Social Security Appeals Council, 52
Fed. Reg. 49,143 (Dec. 30, 1987); Admin. Conf. of the U.S., Recommendation 90-4, Social Security Disability
Program Appeals Process: Supplementary Recommendation, 55 Fed. Reg. 34,213 (Aug. 22, 1990). For relevant
sections, see APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at App. K.
11
A REPORT TO THE SSAB, supra note 8, at 40 (recommending that SSA close the record after the ALJ hearing,
subject to certain qualifications).
12
1988 Draft Proposal, supra note 1, at 9.
13
The Challenges of Achieving Fair and Consistent Disability Decisions: Hearing Before the Subcomm. on Soc.
Sec. of the H. Comm. on Ways & Means, 113th Cong. 6-7 (2013) (statement of David G. Hatfield, A.L.J. (ret.)),
available at http://waysandmeans.house.gov/uploadedfiles/hatfield_testimony32013.pdf.
14
42 U.S.C. § 405(b)(1) (2011); see also id. § 1383(c)(1)(A) (2011).
15
Id.
16
See Soc. Sec. Admin., Federal Old-Age, Survivors, and Disability Insurance Benefits, Black Lung Benefits, and
Supplemental Security Income for the Aged, Blind, and Disabled; Regulations for Determining Claimant Rights;
Proposed Rule Draft 9 (1988).
5

A complete evidentiary record is no less important at the appellate level of the
adjudication process. The Appeals Council has discretionary authority to review cases in which
there has been an abuse of discretion or an error of law, or where the findings are not supported
by substantial evidence, or where a policy or procedural issue needs to be resolved.17 This task
is necessarily made more difficult if the record it reviews is materially different from the record
at the ALJ hearing level. As the American Bar Association (“ABA”) observed:
[E]vidence of record [in SSA disability benefits claims] is a moving target and
subject to change at every level except the last. As a result, claimants and their
[representatives] are able to keep a case spinning for any number of years, up and
down the ladder. No appellate system can function under such circumstances; nor
does due process require such an open-ended opportunity to make one’s case.
Rules of finality are required to get and keep the backlog under control.18
Similarly, in an analogous context, the Supreme Court emphasized the importance of record
finality to the adjudicatory process:
Administrative consideration of evidence . . . always creates a gap between the
time the record is closed and the time the administrative decision is promulgated. .
. . If upon the coming down of the order litigants might demand rehearings as a
matter of law because some new circumstance has arisen, some new trend has
been observed, or some new fact discovered, there would be little hope that the
administrative process could ever be consummated in an order that would not be
subject to reopening.19
Although the Supreme Court was speaking in particular about the reopening context, the
principle holds true for closing the record. If claimants are allowed to submit evidence at any
time, there is “little hope that the administrative process could ever be consummated” because it
would always be subject to augmentation.
II.

ADJUDICATION OF DISABILITY BENEFITS CLAIMS: PROCESS & LEGAL STANDARDS

A. Summary of SSA’s Disability Benefits Adjudication Process
The Social Security Act created two programs—Social Security Disability Insurance
(“SSDI”) and Supplemental Security Income (“SSI”)—to provide monetary benefits to persons
with disabilities who satisfy these programs’ respective requirements.20 Individuals may qualify
for benefits if, among other things, they can show that they have a disabling impairment.21 The
programs share the same definition of disability: the inability “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which

17

See 20 C.F.R. §§ 404.970, 416.1470 (2012).
ABA REPORT, supra note 3, at 17.
19
Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 554-55 (1978) (quoting
ICC v. Jersey City, 322 U.S. 503, 514 (1944)) (internal quotation marks omitted).
20
See 42 U.S.C. §§ 401(b), 1381 (2011).
21
See id. §§ 423(d)(2)(A), 1382c(a)(3)(B) (2011).
18

6

can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.”22 Every year, millions of people apply for SSDI and SSI
benefits,23 and SSA has created what may be the world’s largest adjudicative system to process
these claims.24
The disability benefits adjudication process begins with the filing of an application, either
in-person at an SSA field office or online.25 Individuals seeking disability benefits may file (and
pursue) their own claims or they may choose to enlist the assistance of a representative, who may
or may not be an attorney.26 Once an application is received by the SSA field office, (in most
instances) the case is sent to a federally funded state Disability Determination Service (“DDS”)
for the initial steps in the adjudication process.27 In most states, a team consisting of a state
disability examiner and a state agency medical and/or psychological consultant makes an initial
determination of eligibility on behalf of SSA.28 The DDS team may gather medical documents
and/or order an examination by a contracting physician or psychologist, termed a consultative
examination (“CE”), to evaluate the claimant’s disability status.29 If an individual’s claim is
initially denied by the first DDS team, (in most states) the claimant may seek reconsideration30
by another DDS team, composed of a different examiner and medical or psychological
consultant.31 As a whole, about 40% of disability claims are collectively allowed at the initial
determination and reconsideration steps at the state DDS level.32
A claimant who is dissatisfied with the outcome of his or her claim at the state DDS level
may, in turn, request a hearing before a SSA ALJ.33 The ALJ reviews the case de novo; no
deference is afforded the DDS determination. The hearing before an ALJ may be held on the
written record, in-person, by video teleconferencing or telephone.34 An ALJ may consider
additional medical examinations, vocational or medical expert testimony, or other non-medical

22

Id. § 423(d)(1)(A) (2011); see also id. § 1382c(a)(3)(A) (2011).
In fiscal year (“FY”) 2012, over 3.2 million people applied for disability benefits. See SOC. SEC. ADMIN., FISCAL
YEAR 2012 PERFORMANCE AND ACCOUNTABILITY REPORT 8 (2012), available at http://www.ssa.gov/finance/2012/
Full%20FY%202012%20PAR.pdf.
24
See Securing the Future of the Disability Insurance Program: Hearing Before the Subcomm. on Soc. Sec. of the
H. Comm. on Ways & Means, 112th Cong. 1 (2012) (statement of Michael Astrue, Comm’r, Soc. Sec. Admin.)
[hereinafter Astrue Testimony], available at http://waysandmeans.house.gov/uploadedfiles/mikeastrue_ss_6_27_12.
pdf; see also Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (quoting JERRY L. MASHAW ET AL., SOCIAL
SECURITY HEARINGS AND APPEALS xi (1978)).
25
See 20 C.F.R. §§ 404.614, 416.325 (2012).
26
See id. §§ 404.1705, 416.1505 (2012).
27
See id. §§ 404.1613-18, 416.1013-18 (2012).
28
See 42 U.S.C. §§ 405(b), 1383(c)(1) (2011).
29
See Charles H. Koch, Jr., The Fourth Bite at the Apple: A Study of the Operation and Utility of the Social Security
Administration's Appeals Council, 17 FLA. ST. U. L. REV. 199, 219 (1990) (describing the disability claims process).
30
See 20 C.F.R. §§ 404.907, 416.1407 (2012); Astrue Testimony, supra note 24, at *1.
31
See 20 C.F.R. §§ 404.909, 416.1409 (2012); Astrue Testimony, supra note 24, at *2.
32
See SOC. SEC. ADVISORY BD., ASPECTS OF DISABILITY DECISION MAKING: DATA AND MATERIALS 44 fig. 39
(2012),
available
at
http://www.ssab.gov/Publications/Disability/GPO_Chartbook_FINAL_06122012.pdf
[hereinafter SSAB 2012 REPORT] (providing specific figures and differences in allowance rates among the states).
33
See 42 U.S.C. §§ 405(b)(1), 1383(c)(1)(A) (2011); 20 C.F.R. §§ 404.929, 416.1429 (2012); Astrue Testimony,
supra note 24, at *1.
34
See 42 U.S.C. §§ 405(b), 1383(c) (2011); 20 C.F.R. §§ 404.929, 416.1429 (2012); Astrue Testimony, supra note
24, at *4.
23

7

evidence (e.g., earning records, statements from third parties, school reports), as well as question
the claimant or other witnesses personally.35 In contrast to most administrative adjudications,
these hearings are nonadversarial—that is, the agency is not represented at the hearing.36 ALJs
have an affirmative duty to develop the record where needed, irrespective of whether the
claimant is represented.37 Currently, about 80% of claimants are represented, predominantly by
attorneys.38 ALJs currently determine that disability is warranted in roughly 50% of the cases
decided.39
A claimant may appeal an ALJ decision to the Appeals Council, which has discretionary
authority to deny or grant review.40 The Appeals Council will review a case if: (1) the ALJ
committed an abuse of discretion; (2) there is an error of law; (3) the ALJ’s decision was not
supported by substantial evidence; or (4) there is a broad policy issue that may affect the public
interest.41 In most cases, if new and material evidence is submitted and it relates to the period on
or before the ALJ hearing decision, the Appeals Council will evaluate the record and review the
case if it finds that the ALJ’s actions, findings, or conclusion are contrary to the weight of the
evidence.42 If the Appeals Council grants review, it may affirm, modify, reverse, or remand the
ALJ’s decision.43 If, instead, the Appeals Council denies review, the ALJ’s decision becomes
the final agency action.44

35

See 20 C.F.R. §§ 404.929-61; 416.1429-61 (2012).
The Department of Veterans Affairs (“VA”) is the other most notable example. See, e.g., Hodge v. West, 155
F.3d 1356, 1362 (Fed. Cir. 1998) (discussing “the historically non-adversarial system of awarding benefits to
veterans” and stating that “[t]his court and the Supreme Court both have long recognized that the character of the
veterans’ benefits statutes is strongly and uniquely pro-claimant”); see also Henderson v. Shinseki, 131 S. Ct. 1197,
1206 (2011) (referring to proceedings before the VA as “informal and nonadversarial”).
37
E.g., Hildebrand v. Barnhart, 302 F.3d 836, 838 (8th Cir. 2002) (describing the duty of an ALJ to “fully and fairly
develop[] the facts of the case”); Byes v. Astrue, 687 F.3d 913, 915-16 (8th Cir. 2012) (same); Thornton v.
Schweiker, 663 F.2d 1312, 1316 (5th Cir. 1981) (same); see also Sims v. Apfel, 530 U.S. 103, 111 (2000) (noting
“ALJ’s duty to investigate the facts and develop the arguments both for and against granting benefits”); Richardson
v. Perales, 402 U.S. 389, 410 (1971) (noting adjudicator’s duty to develop the facts). The ALJ’s duty to develop the
record is “less pronounced when . . . a claimant is represented by counsel.” Newcomb v. Astrue, No. 2:11-CV-02GZS, 2012 WL 47961, at *10 (D. Me. Jan. 6, 2012), aff’d, No. 2:11-CV-02-P-S, 2012 WL 206278 (D. Me. Jan. 24,
2012) (citing as examples, Heggarty v. Sullivan, 947 F.2d 990, 997 (1st Cir. 1991) and Hawkins v. Chater, 113 F.3d
1162, 1167-68 (10th Cir. 1997)).
38
See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at App. D, tbl. A-2 & fig. A-2, p. A-12.
The percentage of cases in which claimants are represented has greatly increased in the past 30 years. The
percentage of claimants represented by attorneys at ALJ hearings has nearly doubled from 1977 to 2010 (from about
35% to 76%), while the use of non-attorney representatives has also experienced a steady increase since 2007. See
SSAB 2012 REPORT, supra note 32, at 60 fig. 55.
39
See ADMIN. CONFERENCE OF THE U.S., STATISTICAL APPENDIX TO ACHIEVING GREATER CONSISTENCY IN SOCIAL
SECURITY DISABILITY ADJUDICATION: AN EMPIRICAL STUDY AND SUGGESTED REFORMS 13-16 (2013), available at
http://www.acus.gov/research-projects/social-security-disability-adjudication. The allowance rate of ALJ
dispositions in FY 2012 was 48%. See id. at 15. When combining ALJ and senior attorney decisions—senior
attorneys are authorized to make fully favorable decisions on the record—the allowance rate in FY 2012 was 50%.
See id.
40
See 20 C.F.R. §§ 404.967-68, 416.1467-68 (2012).
41
See id. §§ 404.970, 416.1470 (2012).
42
See id.
43
See id. §§ 404.979, 416.1479 (2012).
44
See id. §§ 404.981, 416.1481 (2012). A final determination or decision may be reopened by the agency of its own
accord or based on a request from the claimant. See id. §§ 404.987, 416.1487 (2012). In either instance, the
determination or decision may be revised. See id.
36

8

A claimant who is dissatisfied with the agency’s final action may seek judicial review in
federal district court.45 The district court can affirm the agency’s final action, or remand the
matter to the agency, either for an award of benefits or for further proceedings.46
B. SSA Legal Standards: Hearing Notices & Submission of Evidence
Without a record, one can neither (1) make a decision granting or denying SSDI or SSI
disability benefits nor (2) review a previous adjudicator’s decision. However, the biggest
challenge in compiling the record is the often-changing condition of the claimant. A claimant’s
health may either deteriorate or improve as his or her claim progresses through the administrative
process. In view of this “moving target,” when is the record considered complete so that a
decision may be made? What constitutes “the record” for purposes of review? Are there
procedures in place to either allow for submission of additional evidence later in the appeal
process or reopen a deficient decision? Does the claimant or representative have adequate time
to gather and submit evidence for the record? This next part describes the existing legal
standards governing these issues, as well as the practices in hearing offices.
1. Social Security Act
The Social Security Act invests the Commissioner of Social Security with “full power
and authority to make rules and regulations and to establish procedures . . . which are necessary
or appropriate to carry out [the] provisions” of the Act in order to establish entitlement to
disability benefits.47 The Act also requires the Commissioner to “adopt reasonable and proper
rules and regulations to regulate and provide for . . . the method of taking and furnishing”
evidence.48 As the Supreme Court has emphasized on several occasions, this statutory authority
is “exceptionally broad.” 49 The Commissioner thus has wide latitude to issue regulations
establishing the processes by which evidence is submitted and hearings are conducted.
Disability, in turn, is defined under the Act as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.”50 In order to determine whether a claimant has a disability,
the agency must make “findings of fact[] and decisions.”51 If the agency’s disability decision is
unfavorable to the claimant, he or she may appeal. The agency is required to “give such

45

42 U.S.C. §§ 405(g), 1383(c)(3) (2011); 20 C.F.R. §§ 404.981, 416.1481 (2012). A claimant must exhaust all
administrative remedies before appealing to federal court.
46
See 42 U.S.C. §§ 405(g), 1383(c)(3) (2011). Historically, federal district courts have reversed very few agency
actions. In FY 1995 – 2010, the average reversal rate was just over 5%. See SSAB 2012 REPORT, supra note 32, at
70 fig. 65b. Of the remaining cases, district courts affirm about half of SSA’s decisions, and remand the other half
to the agency for further proceedings. See id.
47
42 U.S.C. § 405(a) (2011).
48
Id.
49
See, e.g., Bowen v. Yuckert, 482 U.S. 137, 145 (1987) (quoting Heckler v. Campbell, 461 U.S. 458, 466 (1983)
(quoting Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981))).
50
42 U.S.C. § 423(d)(1)(A) (2011); see also id. § 1382c(a)(3)(A) (2011).
51
Id. §§ 405(b)(1), 1383(c)(1)(A) (2011).
9

applicant . . . reasonable notice and opportunity for a hearing with respect to such decision, and,
if a hearing is held, [must], on the basis of evidence adduced at the hearing, affirm, modify, or
reverse the [agency’s] findings of fact and such decision.”52
After the agency issues a final decision, it may be reversed and remanded by a federal
court. “Sentence Six”—so-called because it is the sixth sentence in 42 U.S.C. 405(g)—clothes
the court with authority to “order additional evidence to be taken before the Commissioner of
Social Security, 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.” Therefore, the claimant bears the burden of demonstrating that the new evidence
he or she submits to the court is material to the decision and he or she had good reason for not
submitting it earlier. If the claimant meets this high statutory bar, the court will reverse and
remand the case to the agency so that it reconsiders the case, including this new evidence.
2. Regulations Governing Regions II – X
This next part will discuss the regulations that govern timing of evidentiary submissions
and noticing of hearings that apply to Regions II-X.53 In the introduction to the section of the
regulations that details the process by which determinations and decisions are made and
reviewed, the agency emphasizes the “informal, nonadversary manner”54 of the administrative
review process (i.e., the ALJ hearing and Appeals Council review). The introduction continues
by linking that informal, nonadversarial process with an open record by noting that at “each step
of the review process, [the claimant] may present any information” to support his or her case.55
Except for certain limitations at the Appeals Council stage of review, the agency “will consider .
. . any information [the claimant] present[s] as well as all the information” it already has.56
These provisions allowing the record to be supplemented throughout the administrative process
exist in tension with the agency’s preference for early evidence submission.

52

Id. § 405(b)(1) (2011); see also id. § 1383(c)(1)(A) (2011).
As a general matter, most of SSA’s ten regions encompass a unique group of neighboring states. Region II is
comprised of New York, New Jersey, and Puerto Rico; Region III of Maryland, West Virginia, Virginia, Delaware,
Pennsylvania, and Washington, D.C.; Region IV of Georgia, Alabama, South Carolina, North Carolina, Tennessee,
Florida, Mississippi, and Kentucky; Region V of Ohio, Illinois, Michigan, Indiana, Wisconsin, and Minnesota;
Region VI of New Mexico, Louisiana, Texas, Arkansas, and Oklahoma. Region VII of Missouri, Nebraska, and
Iowa; Region VIII of Montana, Idaho, Wyoming, Colorado, North Dakota, South Dakota, and Utah; Region IX of
California, Hawaii, Nevada, and Arizona; Region X of Alaska, Oregon, and Washington. There are two exceptions
to this general regional set up. First, SSA does have small service areas in in a few states that “cross borders” in the
sense that that service area is part of one region, while the rest of the state is part of another region. For example,
the Cincinnati, OH hearing office in Region V has a service area in northern Kentucky, which is part of Region IV.
Second, the National Hearing Centers (“NHC”) include five offices—one each in Virginia, New Mexico, Illinois,
Maryland, and Missouri—and adjudicates claims by video teleconferencing. See SOC. SEC. ADMIN. OFFICE OF THE
INSPECTOR GEN., NO. A-12-11-11147, THE ROLE OF THE NATIONAL HEARING CENTERS IN REDUCING THE HEARINGS
BACKLOG 1-2 (2012), available at http://oig.ssa.gov/sites/default/files/audit/ full/pdf/A-12-11-11147.pdf. NHC
procedures are usually determined by the region from which the claim originated, rather than the geographical
location of the NHC office overseeing its adjudication.
54
20 C.F.R. §§ 404.900(b), 416.1400(b) (2012).
55
Id.
56
Id.
53

10

At the hearing level, the agency not only encourages claimants to submit evidence within
10 days of requesting the hearing,57 but also requests “[a] statement of additional evidence to be
submitted and the date [the claimant] will submit it.”58 Although these provisions encourage
prompt submission of evidence, as well as advance notification of the evidence the claimant
expects to submit in the future, other provisions effectively only request claimants to ensure that
evidence is available at the hearing.59 Claimants, then, may “submit new evidence”60 at the
hearing and the ALJ will “issue a decision based on the hearing record.”61 Notice of the hearing
before an ALJ must be issued “at least 20 days before the hearing.”62
If the claimant appeals to the Appeals Council,63 he or she has an additional, though
limited, opportunity to submit evidence. The evidence must be “new and material”64 and must
“relate[] to the period on or before the date of the [ALJ] hearing decision.”65 If the evidence
meets these criteria, the Appeals Council will grant review “if it finds that the [ALJ’s] action,
findings, or conclusion is contrary to the weight of the evidence currently of record.”66
3. Region I Pilot Program
The regulations that govern Region I67 relating to timing of evidentiary submissions and
noticing of hearing differ from those governing Regions II-X in significant respects.68 First, the

57

See id. §§ 404.935, 416.1435 (2012) (“If possible, the evidence or a summary of evidence you wish to have
considered at the hearing should be submitted to the administrative law judge with the request for hearing or within
10 days after filing the request.”).
58
Id. §§ 404.933(a)(3), 416.1433(a)(3) (2012).
59
See id. §§ 404.935, 416.1435 (2012) (“Each party shall make every effort to be sure that all material evidence is
received by the administrative law judge or is available at the time and place set for the hearing.”).
60
Id. §§ 404.929, 416.1429 (2012). When describing the decision of the ALJ, the regulations reaffirm the
permissibility of submitting evidence at the hearing by stating that the ALJ “must base the decision on the
preponderance of the evidence offered at the hearing or otherwise included in the record.” Id. §§ 404.953, 416.1453
(2012).
61
Id. §§ 404.929, 416.1429 (2012). The ALJ has discretion to either stop and reschedule the hearing, or reopen the
hearing before he or she mails notice of a decision in order to receive evidence that is new and material to the claim.
See id. §§ 404.944, 416.1444 (2012).
62
Id. §§ 404.938, 416.1438 (2012).
63
See id. §§ 404.967, 416.1467 (2012) (“If you or any other party is dissatisfied with the hearing decision or with
the dismissal of a hearing request, you may request that the Appeals Council review that action.”).
64
Id. §§ 404.970(b), 416.1470(b) (2012).
65
Id.; see also id. § 404.976(b) (2012) (“The Appeals Council will consider all the evidence in the [ALJ] hearing
record as well as any new and material evidence submitted to it which relates to the period on or before the date of
the [ALJ] hearing decision.”); id. § 416.1476(b) (2012) (same).
66
Id. §§ 404.970(b), 416.1470(b) (2012). The final opportunity to submit additional evidence at the agency level
involves reopening the case. The claimant may request that his or her case be reopened, or the agency may reopen it
of its own initiative. See id. §§ 404.987(a)-(b), 416.1487(a)-(b) (2012) (“We may reopen a final determination or
decision on our own initiative, or you may ask that a final determination or a decision to which you were a party be
reopened.”). In either instance, the agency may revise the decision. See id. §§ 404.987(b), 416.1487(b) (2012).
Claims are seldom reopened.
67
Region I is comprised of Massachusetts, Connecticut, New Hampshire, Vermont, Maine, and Rhode Island.
68
These regulations, however, do similarly begin by affirming that the administrative process is conducted in a
“non-adversarial manner.” 20 C.F.R. § 405.1(c) (2012).
11

regulations note that, unless the claimant agrees to a shorter period, he or she will be notified “of
the time and place of the hearing at least 75 days before the date of the hearing.”69
Second, at the ALJ hearing level, three different tiers exist regarding the submission of
evidence depending on the time at which such evidence is submitted. Any evidence submitted
up until five days before the hearing will be admitted into the record. Evidence submitted at or
after the hearing must meet increasingly higher standards in order to be admitted into the record:
Table 1: Summary of Region I Record Closure Rule
Tier

70

1

Timeframe

Until
  5
  days
  before
  the

hearing

Evidence
  Accepted?

ALJ
  will
  accept
  the
  evidence

ALJ
  will
  accept
  the
  evidence
  if:

(1)
  agency’s
  action
  misled
  the
  claimant;

71

2

During
  5
  days
  before
  the

hearing
  or
  at
  the
  hearing

(2)
  claimant
  had
  a
  limitation
  that
  prevented
  the
  evidence
  from

being
  submitted
  earlier;
  or

(3)
  unusual,
  unexpected,
  or
  unavoidable
  circumstance
  beyond

the
  claimant’s
  control
  prevented
  the
  evidence
  from
  being

submitted
  earlier

ALJ
  will
  accept
  the
  evidence
  if:

Claimant
  demonstrates
  that
  there
  is
  a
  reasonable
  possibility
  that

the
  evidence
  will
  affect
  the
  outcome
  of
  his
  or
  her
  claim
  and

72

3

After
  the
  hearing,
  but
  before

the
  decision
  is
  issued

(1)
  agency’s
  action
  misled
  the
  claimant;

(2)
  claimant
  had
  a
  limitation
  that
  prevented
  the
  evidence
  from

being
  submitted
  earlier;
  or

(3)
  unusual,
  unexpected,
  or
  unavoidable
  circumstance
  beyond

the
  claimant’s
  control
  prevented
  the
  evidence
  from
  being

submitted
  earlier

Unless the Appeals Council accepts additional evidence into the record, “the official record
closes once the [ALJ] issues his or her decision regardless of whether it becomes [the agency’s]
final decision.”73

69

Id. § 405.315(a) (2012); see also id. § 405.316(a) (2012) (“We will mail or serve the notice at least 75 days before
the date of the hearing unless you agree to a shorter period.”).
70
See id. § 405.331(a) (2012). The notice of the ALJ hearing informs the claimant that he or she must submit
evidence “no later than five business days before the date of the scheduled hearing, unless” certain conditions are
met. See id. § 405.316(b)(6) (2012).
71
See id. § 405.331(b) (2012).
72
See id. § 405.331(c) (2012).
73
Id. § 405.360 (2012). For example, the Appeals Council may deny the claimant’s request for review. In this
instance, the Appeals Council makes the final agency decision (i.e., denying review); the record is considered closed
at the issuance of the ALJ decision.
12

A claimant in Region I—as in the other regions—may appeal to the Appeals Council.74
However, the Appeals Council does not consider additional evidence under the same criteria as
in other SSA regions. Rather, the Appeals Council will only consider additional evidence:
•
•
•

“where it relates to the period on or before the date of the hearing decision;”75 and
“there is a reasonable probability that the evidence . . . would change the outcome of the
decision;”76 and
one of these three circumstances apply:
o the agency’s “action misled” the claimant;77
o the claimant had a “limitation[] that prevented” the evidence from being
submitted earlier;78 or
o “[s]ome other unusual, unexpected, or unavoidable circumstance beyond [the
claimant’s] control prevented” the evidence from being submitted earlier.79

Unless additional evidence is admitted into the record because the claimant meets the above
conditions, “the record is closed as of the date of the [ALJ’s] decision, and the Appeals Council
will base its action on the same evidence that was before the [ALJ].”80
4. Hearing Office Practices
When the claimant submits a request to have an ALJ review the DDS’s determination,
the field office that receives the request will assign it to the appropriate hearing office.81 The
request is received by the hearing office docket clerk into a queue of unassigned cases. For
ALJs, cases are randomly assigned on a first-in, first-out basis.82 Case technicians receive case
assignments on a rotational basis. In many offices, the case technician develops the case record,
which may involve requesting updated evidence or suggesting to an ALJ that the record requires
additional factual development. In addition, as the claimant and/or his or her representative
submit(s) evidence, the case technician prepares exhibits and maintains the electronic (docket)
database. When a case is ready for scheduling, the full-time scheduler will schedule a case
according to the ALJ’s availability. The scheduler will then issue a notice of hearing to the

74

See id. § 405.401(a) (2012).
Id. § 405.401(c) (2012).
76
Id.
77
Id. § 405.401(c)(1) (2012).
78
Id. § 405.401(c)(2) (2012).
79
Id. § 405.401(c)(3) (2012).
80
Id. § 405.430 (2012). The reopening guidelines are the same in Region I as in the other regions except in 2
significant respects. First, while in most of the country a decision may be reopened for good cause within 4 years
for SSDI claims and within two years for SSI claims, in Region I, a decision may only be reopened for good cause
within “six months from the date of the final decision.” Id. § 405.601(b) (2012). Second, the good cause exception
in Region I does not include the furnishing of “new and material evidence,” but is limited to whether a clerical error
in computing benefits was made or whether the evidence used to reach the decision facially demonstrates that an
error was made. See id.
81
Telephone interview with ODAR officials (June 20, 2013) (interview notes on file with authors). All information
in this section was provided in this interview.
82
There are a number of exceptions to the “first-in, first-out” policy. See Soc. Sec. Admin., HALLEX I-2-1-55DAssignment of Service Area Cases to Administrative Law Judges (Feb. 12, 2009), available at http://ssa.gov/OP_
Home/hallex/I-02/I-2-1-55.html. ALJs can also identify cases that can be paid on the record.
75

13

claimant at least 20 or 75 days before the hearing—depending on regional requirements—unless
such notice is waived by the claimant.
The hearing office is managed by the hearing office chief ALJ (“HOCALJ”) and the
hearing office director (“HOD”). The HOCALJ oversees the ALJs and the HOD oversees the
other hearing office staff, including case technicians and decision writers. Case management
practices between the time the case is assigned and the date the hearing is held vary among
offices and ALJs.
At some point before the hearing, the ALJ and, if applicable, the medical and/or
vocational expert review(s) the case. The ALJ then conducts the hearing, which may include
examination of witnesses and collection of newly submitted evidence. If the ALJ determines
that post-hearing record development is required, he or she may hold supplemental hearing(s),
put the hearing into post-hearing status, and/or order a CE. Once such evidence (if any) is
collected, the ALJ may either draft the decision or prepare instructions for the decision writer. If
the latter, the decision writer drafts the decision and sends it to the ALJ. The ALJ then edits,
signs, and issues the decision.
C. Past Agency Regulatory Initiatives: Hearing Notices & Submission of Evidence
Region I is the only jurisdiction subject to the pilot program, which, as noted above,
details different procedures regarding the timing both for issuance of hearing notices and for
submission of evidence relative to the other nine SSA regions across the country. The next part
reviews past regulatory efforts resulting in the creation of these procedures.83
1. The Disability Service Improvement Program
a. 2003 Hearing: Announcement of Proposals for Reform
Commissioner Jo Anne Barnhart served as Commissioner of SSA from 2001 to 2007.84
Early in her tenure, she “began a comprehensive [s]ervice [d]elivery [a]ssessment to thoroughly
examine all of SSA’s workloads.”85 After a year and a half of research and outreach to
stakeholders, the agency developed a plan to, among other things, “shorten decision times [and]
pay benefits to people who are obviously disabled much earlier in the process.”86 At a hearing
before the Subcommittee on Social Security, Commissioner Barnhart announced SSA’s ideas to
reform the system. Two of the key proposals aimed at getting rid of “the backlog and reduc[ing]

83

For initiatives that predate the 2000s, see APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at
App. C, pp. A-6 to A-8.
84
See Soc. Sec. Admin., Social Security Commissioners: Jo Anne B. Barnhart, http://www.socialsecurity.gov/
history/barnhart.html (providing the history of SSA commissioners) (last visited May 5, 2013).
85
Soc. Sec. Admin.’s Management of the Office of Hearings and Appeals: Hearing Before the Subcomm. on Soc.
Sec. of the H. Comm. on Ways & Means, 108th Cong. (Sept. 25, 2003) (statement of Jo Anne B. Barnhart,
Commissioner, Social Security Administration) [hereinafter Barnhart Sept. 2003 Testimony], available at
http://www.ssa.gov/legislation/testimony_092503.html.
86
Press Release, Soc. Sec. Admin., Commissioner Barnhart Presents Her Approach to Improving the Disability
Determination Process (Sept. 25, 2003) (on file with authors).
14

the lengthy processing time”87 were (1) closing the record after the ALJ hearing and (2)
eliminating the Appeals Council.88
Organizations that were invited to the hearing shared their views on SSA’s proposal. The
SSAB urged Congress to “revisit the possibility of closing the record after the hearing decision
[wa]s made.”89 The Association of Administrative Law Judges (“AALJ”)—a union representing
primarily SSA ALJs—went further by advocating that the record be closed after the ALJ
hearing.90 The National Organization of Social Security Claimants’ Representatives
(“NOSSCR”)—a claimants’ representative organization—however, took the opposite view.91 It
recommended that the record be kept open for the admission of new evidence. The organization
stated that circumstances such as worsening of claimants’ conditions and delays in the
production of evidence by medical providers, as well as the need to maintain an informal
process, all pointed to why closing the record could be detrimental to claimants.92
b. 2004 Hearing: Update on Reform Plan
A year later, the Subcommittee on Social Security and the Subcommittee on Human
Resources held a hearing in order to get an update on the agency’s ideas for reform.93 The
Commissioner shared that SSA’s driving motivation in its reform efforts was “to make the right
decision [for the claimant] as early in the process as possible.”94 She stated that SSA was
conducting an outreach campaign and “study[ing] all of the issues.”95 Commissioner Barnhart
relayed that, in the course of its outreach efforts, some groups had expressed significant concerns
about the concepts of closing the record and elimination of the Appeals Council.96 Bases for
such concern included: (1) the plan for record closure lacked good cause exceptions; (2)
elimination of the Appeals Council would itself effectively close the record after the ALJ

87

Barnhart Sept. 2003 Testimony, supra note 85.
See id. The Commissioner believed that the Appeals Council added unnecessary processing time since it usually
supported the ALJ decision. See id. A number of SSA officials believe that Commissioner Barnhart did not fully
understand the Appeals Council’s work. See in-person interview with senior ODAR officials (Jan. 28, 2013)
(interview notes on file with authors).
89
Soc. Sec. Admin.’s Management of the Office of Hearings and Appeals: Hearing Before the Subcomm. on Soc.
Sec. of the H. Comm. on Ways & Means, 108th Cong. (Sept. 25, 2003) (statement of Sylvester J. Schieber, Member,
Soc. Sec. Advisory Bd.). The SSAB is “a 7-member bipartisan Advisory Board [created] to advise the President, the
Congress, and the Commissioner of Social Security on Social Security and Supplemental Security Income . . .
policy.” “Social Security Advisory Board,” http://www.ssab.gov/AbouttheBoard/AuthorizingStatute.aspx (last
visited July 18, 2013).
90
See id. (statement of Hon. Ronald G. Bernoski, Pres., Ass’n of Admin. Law Judges). Others took this view,
including the American Federal of Government Employees Council 215 and the Federal Managers Association.
91
See id. (statement of Richard P. Morris, Pres., Nat’l Org. of Claimants’ Rep’s).
92
See id.
93
See Comm’r of Soc. Sec.’s Proposal to Improve the Disability Determination Process: Joint Hearing Before the
Subcomm. on Soc. Sec. of the H. Comm. on Ways & Means and Human Res. Subcomm. on Soc. Sec. of the H.
Comm. on Ways & Means, 108th Cong. (2004) (statement of Jo Anne B. Barnhart, Comm’r, Soc. Sec. Admin.),
available at http://www.ssa.gov/legislation/testimony_093004.html. Congressman Brady affirmed Commissioner
Barnhart’s plan as one of reforming the process so that claimants do not “fall through the [safety] net,” while also
eliminating unnecessary procedural steps. Id.
94
Id.
95
Id.
96
See id.
88

15

decision; and, (3) no appellate body to review an ALJ decision would overwhelm the federal
court system with SSA disability benefits cases.97
In addition to receiving testimony from the Commissioner, the Subcommittees again
heard from a number of organizations.98 The SSAB suggested that closing the record “may . . .
serve to reduce timelines by sharpening the focus on the hearing itself as the final administrative
step.”99 The board stressed the importance of finality, stating that without closure of the record,
new evidence could always be submitted, resulting in an ever-changing record.100 The SSAB,
however, also noted that if the agency closed the record, certain evidence should be allowed
under a good cause exception.101 The AALJ continued to support “the concept of closing the
record after the ALJ hearing,” but only so long as all material evidence had been included before
closure.102 The union proffered a suggestion for a good cause exception consisting of two
tests.103 One test would relate to evidence that did not exist at the time of the hearing, which, in
the AALJ’s view, should be automatically admitted.104 The other test would apply to evidence
that did exist prior to the hearing, for which, in its view, the claimant would have to provide a
good reason for failing to submit earlier.105
At the same hearing, the Consortium for Citizens with Disabilities (“CCD”)—a coalition
of various organizations that advocates on behalf of people with disabilities—firmly opposed
closing the record. While CCD strongly supported submitting evidence as quickly as possible, it
stated that certain circumstances made timely submission of evidence impossible.106 Yet should
SSA nonetheless move forward with its record closure plan, CCD advocated for the addition of a
good cause exception which would permit claimants to submit new and material evidence into
the record during or after the ALJ hearing.107 CCD also recommended keeping the adjudication
process informal so that it would be understandable, especially to laypeople.108
c. 2005 NPRM: The Disability Service Improvement Program Takes Shape
Nearly a year and many meetings with “hundreds of interested organizations, groups, and
individuals” later,109 SSA issued a Notice of Proposed Rulemaking (“NPRM”) that proposed

97

See id.
See id.
99
Id. (statement of Hon. Hal Daub, Chairman, Soc. Sec. Advisory Bd.).
100
See id.
101
See id.
102
See id. (statement of Ronald G. Bernoski, Pres., Ass’n of Admin. Law Judges). Others, such as the National
Council of Social Security Management Organizations, the National Association of Disability Examiners, and the
Federal Managers Association supported closing the record after the ALJ decision. The Federal Bar Association
supported a good cause exception.
103
See id.
104
See id.
105
See id.
106
See id.
107
See id.
108
See id.
109
Soc. Sec. Admin., Administrative Review Process for Adjudicating Initial Disability Claims, 70 Fed. Reg. 43,593
(proposed July 27, 2005) [hereinafter 2005 Proposed Rules]. The people and organizations with whom SSA met
included members of Congress and congressional staff, organizations representing the interests of claimants,
98

16

several changes to the disability determination process.110 In the preamble, the agency stated that
it expected the changes to “significantly reduce average disability determination processing time,
increase decisional consistency and accuracy, and ensure that the right determination or decision
[wa]s made as early in the disability determination process as possible.”111 The agency also
stated its belief that the changes would facilitate claimants’ timely submission of evidence,
thereby improving the efficiency of the disability determination process.112
In this 2005 NPRM, SSA proposed rules that would require claimants to submit evidence
no later than 20 days before their scheduled ALJ hearing date.113 As a twin provision, SSA
proposed to extend the timeframe for issuance of the hearing notice to 45 days before the
hearing.114 That way, the agency believed, claimants would have adequate time to collect and
submit their evidence by the record closure date.115 Regarding evidence that was not submitted
within the prescribed timeframe, SSA proposed two exceptions that claimants would be required
to raise at the hearing:
[1]If [the claimant was] aware of any additional evidence that [he or she] could
not timely obtain and submit or [2] if [the claimant was] scheduled to undergo
additional medical evaluation after the hearing for any impairment that forms the
basis of [the] disability claim, [he or she] must inform the [ALJ] of either of these
circumstances during [the] hearing.116
These exceptions, however, were subject to the ALJ’s discretion.117 The ALJ could grant the
claimant’s request to keep the record open for a defined amount of time.118 After the evidence
was received, the record would close and the decision would be issued.119
The 2005 NPRM also provided for submission of new evidence in “very limited
situations.”120 The agency might consider new evidence submitted by the claimant after the
record was closed and about which the claimant had not previously informed the ALJ. Such
situations would include when a claimant “experience[d] a significant worsening of a condition
or . . . the onset of a new impairment after the hearing, but before the decision [wa]s issued.”121
These situations merited special consideration, according to SSA, because the claimant could not

beneficiaries, retirees, legal and medical professionals, and SSA and state agency employees involved in the
disability determination process. See id.
110
See id. at 43,590-43,624.
111
Id. at 43,590.
112
See id.
113
See id. at 43,597. SSA proposed to require that all evidence—both in support of and contrary to a claim—be
submitted. See id. at 43,602. SSA proposed requiring that all evidence currently available to the claimant be
submitted when he or she filed a request for hearing, and that additional evidence be submitted only up until 20 days
before the hearing. See id.
114
See id. at 43,597.
115
See id.
116
Id. (emphasis added).
117
See id.
118
See id.
119
See id.
120
Id.
121
Id.
17

have known they would occur.122 This “limited” exception, however, only applied if the
claimant sought to submit this evidence no later than 10 days after the issuance of the ALJ
decision.123
SSA proposed implementing these changes gradually, one region at a time, beginning
with one of its smaller regions.124 It planned to choose a region with the fewest annual court
filings so that it could closely monitor the impact on the court system.125 To implement these
new procedures, SSA created a new part—part 405—which applied to both title II and title XVI
claims.126
d. 2005 Hearing: Discussion of the Disability Service Improvement Program
A couple of months later, the Subcommittees on Social Security and Human Resources
held another joint hearing in order to examine the 2005 NPRM.127 Commissioner Barnhart, as
well as various stakeholders testified about the proposed regulations.
When asked by the Chairman of the Subcommittee on Social Security why the agency
proposed time limits for the submission of evidence, Commissioner Barnhart explained that the
time requirements were meant to ensure that the ALJ was looking at the most developed record
possible so that he or she could make a decision based on the entire record at the hearing.128
However, the 2005 NPRM allowed for good cause exceptions should evidence need to be
admitted later than the regulations required.129 She emphasized the problems of rescheduling
and postponement of hearings—31% of hearings were being postponed. Postponement and
rescheduling affected not only the claimant whose hearing was rescheduled or postponed after he
or she had waited a substantial amount of time to even get a hearing, but also other claimants
who could have had a hearing scheduled in a slot that ended up being unused.130
A member of the Subcommittee on Human Resources expressed concern that the process
was moving away from a “truth seeking, informal[,] non-adversarial process.”131 He thought the
process should give the claimant every opportunity to prove disability and believed a 20-day
limit would create a procedural stumbling block that was diametrically opposed to the goal of the

122

See id.
See id. If the decision was selected by the Decision Review Board (“DRB”)—the appellate body designed to
replace the Appeals Council—for review, the claimant must submit the evidence and explanation to that body. See
id. In addition, SSA “propose[d] to delete new and material evidence as a basis for finding good cause to reopen” a
claim. Id. at 43,603. Further, if the only reason for requesting reopening is the submission of evidence that had not
been previously provided, SSA would decline to reopen the claim. See id.
124
See id. at 43,599.
125
See id. at 43,600.
126
See id. For a comparison between the 2005 NPRM and today’s regulations as they exist today, see APPENDIX TO
REPORT ON REGION I PILOT PROGRAM, supra note 5, at App. B pp. A-4 & A-5.
127
See Comm’r of Soc. Sec.’s Proposed Improvements to the Disability Determination Process: Joint Hearing
Before the Subcomm. on Soc. Sec. of the H. Comm. on Ways & Means and Human Res. Subcomm. on Soc. Sec. of
the H. Comm. on Ways & Means, 109th Cong. (Sept. 27, 2005).
128
See id. (testimony of Jo Anne Barnhart, Comm’r of Soc. Sec. Admin.).
129
See id.
130
See id.
131
Id. (statement by Xavier Becerra, Rep., California).
123

18

program.132 The Commissioner assured him that the goal was not to close the record prior to the
ALJ hearing, but rather after issuance of the ALJ decision.133
CCD reiterated its concern that the proposed good cause exceptions were insufficient to
prevent unfair and unjust decisions, which could lead to resolution of claims on the basis of
technicalities rather than truth.134 CCD also highlighted what it believed were three incorrect
underlying assumptions: (1) “the claimant or representative ha[d] control over the sources of
medical or vocational evidence;” (2) the “claimant [wa]s represented from the beginning of the
process;” and (3) “diagnosis [wa]s simple and straightforward.”135 The organization stated that
reality was quite different. It noted that a claimant or representative could face great difficulty in
obtaining evidence.136 In addition, the organization stated that the claimant often did not retain
representation until late in the process.137 Finally, it said that medical conditions were often
challenging to diagnose.138 CCD believed it was wrong to deny a person benefits simply because
he or she did not comply with such stringent procedural limitations as the 2005 NPRM would
impose.139
While NOSSCR recognized the difficulties ALJs faced when they received evidence just
prior to or at the hearing, calling it detrimental to the ALJ’s “ability to be educated about the
medical record . . . and mak[ing] the hearing less effective,”140 the organization, like CCD,
opposed certain provisions in the 2005 NPRM.141 NOSSCR maintained that requiring evidence
20 days before the hearing, subject to a good cause exception was actually in contravention of
the statutory requirement that decisions be made based on “‘evidence adduced at the
hearing.’”142 NOSSCR pointed to the difficulty in obtaining medical records, explaining that
while the regulations would give claimants or representatives only 25 days to marshal the

132

See id.
See id. (testimony of Jo Anne Barnhart, Comm’r of Soc. Sec. Admin.).
134
See id. (statement of Marty Ford, Co-Chair, Soc. Sec. Task Force, Consortium of Citizens with Disabilities)
[hereinafter Ford 2005 Statement].
135
See id.; see also Letter from Marcie E. Goldbloom, Daley, DeBofsky & Bryant, to Jo Anne Barnhart, Comm’r,
Soc. Sec. Admin. (Oct. 19, 2005) (on file with authors) (stating that she often represented claimants who obtained
her services less than a full month before the hearing, and most of the cases required record development).
136
See Ford 2005 Statement, supra note 134; see also Comments on 2005 NPRM submitted by Kathleen Flaherty,
Rose Bonaduce, Timothy Hornbecker, & Colleen Graney (Oct. 14 & 15, 2005) (expressing concern that claimants
and representatives lack control over when they will receive evidence from medical providers) [hereinafter Flaherty,
et. al. Comments].
137
See Ford 2005 Statement, supra note 134; see also Flaherty, et. al. Comments, supra note 136 (noting that
claimants are not often represented until later in the process)
138
See Ford 2005 Statement, supra note 134.
139
See id.
140
Id. (testimony of Thomas D. Sutton, Pres., Nat’l Org. of Soc. Sec. Claimants’ Rep’s).
141
See id.
142
Id. CCD agreed that the 20-day requirement may violate the statute. See Ford 2005 Statement, supra note 134.
133

19

evidence143 (45 day notice minus 20-day prior-to-hearing submission deadline), nothing required
medical providers to produce the evidence timely.144
e. 2006 Final Rule: Disability Service Improvement Program Implemented
About six months after the hearing to discuss its 2005 NPRM, SSA issued final rules
establishing the Disability Service improvement (“DSI”) program, which was intended “to
improve the accuracy, consistency, and fairness of [the agency’s] disability determination
process and to make the right decision as early in the process as possible.”145 The final rule
issued by SSA was different than the proposed rule in a number of ways, as shown below:146
Table 2: Comparison of Proposed & Final DSI Program Rule (2005-06)

2005
  Proposed
  Rule

2006
  Final
  Rule

147

Evidence
  Submission
  Deadline

No
  later
  than
  20
  (calendar)
before
  the
  hearing
  date

  days

No
  later
  than
  5
  business
  days
  before

the
  hearing
  date

Notice
  of
  Hearing
  Requirement

At
  least
  45
  days
  before
  the
  hearing

date

At
  least
  75
  days
  before
  the
  hearing

date

As a result of these new regulations, “[t]he record . . . closed after the [ALJ] issue[d] a decision,
with provision for good cause exceptions to this rule.”148
By revising its 2005 NPRM, SSA stated that receiving “new and voluminous medical
evidence” just prior to or at the hearing did not allow the ALJ adequate time “to review and
consider that evidence.”149 This, in turn, often caused the hearing to be postponed, which
delayed both this and other claimants’ hearings and decisions.150 Moreover, the medical and
vocational experts likewise will have had scant time to review and prepare.151 Simultaneously,
SSA recognized the claimant’s need for timely notification of the hearing in order to collect
medical evidence. The agency therefore committed to providing notice of hearing 75 days in
advance of the hearing date, and set 90-day notice of hearing as an administrative goal.152

143

Some firms have staff dedicated solely to developing clients’ records, including issuing requests for records,
following up with phone calls and faxes, and reviewing submissions to ensure that they are complete. See id.
(statement of Thomas D. Sutton, Pres., Nat’l Org. of Soc. Sec. Claimants’ Rep’s).
144
As ways to compel medical providers to produce records, NOSSCR recommended providing adequate
reimbursement rates, contacting providers repeatedly for the records, and issuing subpoenas for the production of
records. See id.
145
2006 Final Rule, supra note 9, at 16,424.
146
See id. at 16,428.
147
The 2005 NPRM defined “day” as “calendar day, unless otherwise indicated.” 2005 Proposed Rules, supra note
109, at 43,610.
148
2006 Final Rule, supra note 9, at 16,428.
149
Id. at 16,434.
150
See id.
151
See id.
152
See id.
20

The ALJ continued to “retain discretion at the time of the hearing to hold the record open
for the submission of additional evidence.”153 Though not required, the regulations encouraged
the claimant to inform the ALJ of any additional evidence, evaluations, or procedures he or she
was aware of so that the ALJ could decide whether to hold the record open.154 After he or she
received the evidence, the ALJ would “close the record and issue a decision.”155
The record was considered closed when the ALJ issued his or her decision.156 The
Decision Review Board (“DRB”)—the entity designed to replace the Appeals Council—would
only review evidence that was before the ALJ.157 If the DRB found that further record
development was necessary, it would remand the case to the ALJ.158
Finally, SSA announced that it would begin to implement these and other changes first in
Region I, one of its smallest regions.159 By gradually implementing the changes, SSA hoped to
monitor the effects of the new rules and apply lessons learned to the program’s implementation
in other regions.160 SSA did not anticipate introducing the changes to another region for one
year in order to have adequate time to assess the implementation and resolve any issues.161
f. 2006 Hearing: Assessment of DSI and Plan for Nationwide Implementation
About three months after the final rules were issued, the Subcommittee on Social
Security held another hearing in order to learn how the Commissioner planned to implement
DSI.162 The Commissioner stated that the regulations would apply to claims filed on or before
August 1, 2006 and only in states where such regulations had been implemented.163
Commissioner Barnhart also noted that the DRB would review 100% of ALJ decisions in order
both to respond to commenters who were concerned that erroneous denials would not be
reviewed, and “to design, test, and validate a predictive model for selecting a subset of all ALJ
decisions for DRB review that include those most likely to be remanded by the U.S. District
Courts.”164

153

Id. at 16,435.
See id.
155
Id. at 16,434.
156
See id. at 16,456.
157
See id.
158
See id.
159
See id. at 16,440. Region I was chosen because of its size and proximity to headquarters. See In-person
interview with senior Office of Disability Adjudication and Review (“ODAR”) official (Jan. 28, 2013) (interview
notes on file with authors) [hereinafter Senior ODAR Official Interview]. The Region VIII (also known as the
“Denver Region”) is similar in size, but was farther away from headquarters. See id.
160
See 2006 Final Rule, supra note 9, at 16,440.
161
See id. at 16,441.
162
See Soc. Sec.’s Improved Disability Determination Process: Hearing Before the Subcomm. on Soc. Sec. of the H.
Comm. on Ways & Means, 109th Cong. (2006) (statement of Jo Anne Barnhart, Comm’r, Soc. Sec. Admin.),
available at http://www.ssa.gov/legislation/testimony_061506.html.
163
See id.
164
Id. (statement of Jo Anne Barnhart, Comm’r, Soc. Sec. Admin.). Originally, SSA intended to identify the most
error-prone cases through a predictive model. See Senior ODAR Official Interview, supra note 159. The company
SSA had been working with to create such a model misrepresented its ability to do so. See Senior ODAR Official
154

21

Ultimately, the 75-day notice requirement and the five-day rule were meant to balance
protection of the claimant’s interests with administrative efficiency.165 It was thought that 75
days would be adequate time to collect and submit evidence and five days would allow for
administrative processing and review by experts.166 The agency wanted to tighten up the system
while acting fairly toward claimants by acknowledging circumstances in which he or she could
not avoid submitting evidence later than the regulations generally required.167 Although SSA
intended to implement these and other changes nationwide, DSI would never be nationally
implemented and in fact would be (mostly) repealed in a few short years.
2. Elimination of Most Aspects of DSI Leads to the Current Pilot Program
SSA was pleasantly surprised how few—especially among the representative
community—expressed concern about the new procedures in Region I.168 DSI appeared to be
more successful than expected, in all but one, albeit significant, respect.169 SSA’s Office of the
General Counsel and the federal courts were displeased with DRB review. The regulations
stated that a case would be certified to district court if the DRB did not review it within 90 days
of the ALJ’s decision.170 The courts experienced a marked increase in case filings because the
DRB lacked the resources to review every ALJ decision, as it had committed to do.171 Within a
couple of months, cases began to pile up and the DRB started reviewing only unfavorable and
partially favorable decisions.172 It became more and more common that the DRB would not be
able to review a case at all and would simply certify it to federal court.173 The inability of the
DRB to function as envisioned was a significant contributor to the eventual elimination of DSI.
a. 2007 NPRM: Proposal to Implement DSI Nationally
It was in this context—six months after DSI was launched—that Michael Astrue began
his term as the new Commissioner of SSA.174 Within the first year of his six-year term, SSA
issued a NPRM that proposed a number of changes—both to Region I, and to the rest of the

Interview, supra note 159. Once SSA discovered that predictive modeling was not possible at that time, the
company disappeared. See id. SSA is getting closer to being able to conduct “text mining.” Id.
165
See Senior ODAR Official Interview, supra note 159; see also In-person interview with Administrative Appeals
Judge (“AAJ”) (Jan. 28, 2013) (interview notes on file with authors) [hereinafter AAJ Interview].
166
See Senior ODAR Official Interview, supra note 159.
167
See id.; see also In-person interview with former senior Office of Appellate Operations (“OAO”) official (Jan.
28, 2013) (interview notes on file with authors).
168
See Senior ODAR Official Interview, supra note 159; see also AAJ Interview, supra note 165.
169
See in-person interview with senior Appeals Council official (Jan. 28, 2013) (interview notes on file with
authors) [hereinafter Senior Appeals Council Official Interview]. But for the bottleneck of the DRB, the system
worked well—the flow of evidence was not the problem, lack of resources was the problem. See AAJ Jan. 29
Interview, supra note 240.
170
See Senior ODAR Official Interview, supra note 159.
171
See id.
172
See Senior Appeals Council Official Interview, supra note 169.
173
See id.
174
See Soc. Sec. Admin., Social Security Commissioners: Michael Astrue, http://www.ssa.gov/pressoffice/
factsheets/astrue.htm (last visited June 26, 2013).
22

country.175 In it, SSA proposed to implement the changes made at the hearing level nationwide
and to remake the DRB and Appeals Council into a “Review Board.”176
The 2007 NPRM proposed to apply Region I’s notice requirement and evidence
submission rules nationwide. SSA gave the same reasons for nationwide implementation as it
had for Region I implementation. In order to give claimants enough time to submit evidence,
SSA proposed notifying the claimant of the hearing date at least 75 days in advance.177 This
consideration was balanced by the need for ALJs and others (i.e., vocational and/or medical
experts) to have time to thoroughly prepare for the hearing, hence the five-day rule.178 The fiveday rule would include the same good cause exceptions that existed in Region I.179
These proposed regulatory changes proved to be unexpectedly controversial. A
substantial amount of backlash erupted from both congressmen and representative organizations
in response to the 2007 NPRM.180 A number of committee and subcommittee chairmen wrote a
letter to Commissioner Astrue.181 They expressed support for certain aspects of the 2007 NPRM,
such as the 75-day hearing notice, but took issue with other aspects, especially aspects they
interpreted as being unfair, preventing all evidence from being considered, and promoting
efficiency “over a full and fair consideration of the claim.”182 They remarked that the backlog
was not due to a failure in the appeals process, but rather because of underfunding.183 NOSSCR
and CCD reiterated their prior objections to DSI both through a letter writing campaign, and in
face-to-face meetings with agency officials.184

175

See 2007 Proposed Rules, supra note 9, at 61,218-45.
See id. at 61,219. The primary issue with the DRB involved a failure to design a predictive model that would
identify those cases with the most problems. See id. Moreover, the DRB was tasked with reviewing 100% of cases,
which could not be sustained on a regional, much less a nationwide basis. See id.
177
See id.
178
See id.
179
See id. One change to both Region I and the rest of the nation involved holding the record open. SSA proposed
to formalize the practice of keeping the record open by enshrining that practice in regulations. Under these new
regulations, the ALJ would still be able to hold the record open should the claimant inform the ALJ of any evidence
he or she anticipates receiving or if he or she was scheduled to undergo further evaluation post-hearing. See id. at
61,220. The ALJ would keep the record open for a specific time period to allow for the submission of further
evidence, after which the record would close and the decision would be issued. See id. The ALJ could also choose
to hold a supplementary hearing, if he or she thought it best. See id.
180
See In-person interview with Appeals Council official (Jan. 28, 2013) (interview notes on file with authors).
181
See Letter from John D. Dingell, Chairman, H. Comm. on Energy & Commerce, et. al., to Michael J. Astrue,
Comm’r, Soc. Sec. Admin. (Dec. 20, 2007) (on file with authors) [hereinafter Dingell, et. al. Letter]. Signees
included the House Chairmen of the Committees on Energy and Commerce, Judiciary, Ways and Means, and
Oversight and Government Reform, as well as House Chairman of the Subcommittees on Health (Ways and Means),
Courts, the Internet, and Intellectual Property (Judiciary), Oversight (Ways and Means), Health (Energy and
Commerce), Income Security and Family Support (Ways and Means), Social Security (Ways and Means), and
Commercial and Administrative Law (Judiciary). See id. Members of the Senate Committee on Finance also sent a
letter to Commissioner Astrue noting their concerns, among which was closing the record. See Letter from Max
Baucus, Chairman, S. Comm. on Finance, et. al., to Michael J. Astrue, Comm’r, Soc. Sec. Admin. (Jan. 24, 2008)
(on file with authors).
182
Dingell, et. al. Letter, supra note 189.
183
See id.
184
See Letter from Nancy G. Shor, Exec. Dir., Nat’l Org. of Soc. Sec. Claimant’s Rep’s, to Michael J. Astrue,
Comm’r, Soc. Sec. Admin. (Dec. 18, 2007) (on file with authors); In-person meeting between SSA senior officials
176

23

b. 2009 NPRM: Proposed Elimination of the DSI Program
Due to the vast number of comments the agency received, as well as “increasing
workloads, lengthening hearing backlogs, and diminishing resources,”185 SSA decided to
reevaluate its 2007 NPRM.186 Instead of applying Region I’s regulations nationwide, SSA
proposed bringing Region I’s practices in line with the rest of the nation by “remov[ing] all
remaining DSI rules and us[ing] the same rules for adjudication in [R]egion [I] as [it] use[d] in
the rest of the country.”187 The proposed rules would eliminate the DRB, the 75-day notice
requirement, and the five-day rule.188
c. 2011 Final Rule: Some Aspects of DSI Remain in Region I
About a year and a half later, SSA issued final rules with respect to Region I.189 The
agency explained that it was adopting some, though not all, of the changes it proposed in its 2009
NPRM.190 It eliminated the DRB, which reestablished the Appeals Council as the appellate body
in Region I.191 The final rules left the 75-day notice requirement and five-day rule intact.192 The
current pilot program, then, is but the vestige of DSI. The history of ambivalent support for the
program may help explain the dichotomy between agency perspectives on the program and how
the program works in practice.193
III. ASSESSMENT OF THE IMPACT OF SSA’S PILOT PROGRAM IN REGION I
To assess the impact of SSA’s Region I pilot program, we analyzed statistical data
provided by SSA, interviewed SSA ALJs, staff members and other agency officials, conducted a
national survey of ALJs and HODs, solicited the views of several judicial and legal organizations
with an interest in the SSA disability adjudication process through written questions and follow

and NOSSCR representatives (Jan. 17, 2008) (notes on file with authors); In-person meeting between SSA senior
officials and NOSSCR and CCD representatives (Feb. 7, 2008) (notes on file with authors).
185
Soc. Sec. Admin., Reestablishing Uniform National Disability Adjudication Provisions, 74 Fed. Reg. 63,688
(proposed Dec. 4, 2009).
186
See id. at 63,688-94.
187
See id. at 63,689.
188
See id. at 63,690.
189
See Soc. Sec. Admin., Eliminating the Decision Review Board, 76 Fed. Reg. 24,802-12 (May 3, 2011).
Interestingly, SSA only received comments from six individuals and organizations in response to its 2009 NPRM.
See id. at 24,803. Although the commenters generally supported the proposal, they expressed a handful of concerns,
only one of which is relevant to this study. See id. They asked SSA to extend the 75-day notice of hearing
requirement nationwide. See id. SSA declined to accept the comment because it was outside the purview of the
2009 NPRM, which proposed only changes to Part 405 (Region I), not changes to Parts 404 and 416 (all other
regions). See id. at 24, 804.
190
See id. 24,802.
191
See id. Due to different practices at the ALJ level, certain regulations governing the Appeals Council review in
Region I, such as the consideration of evidence submitted after the hearing decision, would be different than those
that are in effect for the rest of the country. See id.
192
It also left both the reopening provisions and the heightened standards required for admittance of evidence to the
Appeals Council intact.
193
This dichotomy is discussed in detail infra Pt. III.B.
24

up interviews, and examined judicial decisions concerning the pilot program’s five-day rule.194
This part summarizes the results from these sources.
A. Empirical Analysis of SSA Data: Comparing the Regions
Our empirical analysis of the impact of the pilot program focused on a comparative
approach that assessed SSA-provided data for Regions I, VII, and VIII, as well the nation as a
whole, along several key variables, such as case processing efficiency, remand rates, and timing
and volume of evidentiary submissions. In sum, our analyses of SSA data showed that the pilot
program, as currently implemented in Region I, appears to be making modest strides toward
advancing the goals set forth by SSA at its inception—namely, improving the efficiency,
accuracy, and timeliness of the Social Security disability benefits adjudication process.
Complete descriptions of our methodology, empirical analyses, and results are set forth in
Appendix D of the accompanying Appendix to Report on Region I Pilot Program, and a
summary follows below.
Before summarizing the results of our empirical analyses, two initial matters warrant
discussion. First, for this study, data were provided to the Conference by SSA from the agency’s
Case Processing Management System (“CPMS”) and the Appeals Council Review Processing
System (“ARPS”) information data tables,195 as well as eView, and the Standard Data Repository
(“SDR”).196 Staff both in the Office of Electronic Services and Strategic Information, Division
of Management Information and Analysis and detailed to the Appeals Council computed some of
the variables that were not available directly from these tables. While CPMS, ARPS, eView, and
SDR represented the best available data sources, and offer a window into certain aspects of the
pilot program (e.g., issuance of hearing notices and evidentiary submission), they are national
case and information management databases that do not capture a number of variables uniquely
specific to the Region I pilot program (e.g., frequency and disposition of requests for good cause
exceptions). Given these limitations, the data studied herein—while reliable—are not
sufficiently tailored to serve as the basis for definitive, empirically based conclusions about the
impact of the pilot program, or to establish causal relationships between the pilot program and
particular analytical results.197 What the comparative results do suggest, however, is that there
are some potential areas where the pilot program is having its intended effect (while not having
any decidedly negative effect—at least insofar as measured by our limited data set).

194

For a more detailed description of the assessment methods used in this report, see APPENDIX TO REPORT ON
REGION I PILOT PROGRAM, supra note 5, at App. A, pp. A-1 to A-3.
195
Adjudicators and other agency employees at both the ALJ hearing level and Appeals Council level use electronic
case management systems to help manage their workflow and provide case-related management information. The
current system in use at the hearing level is CPMS, while at the Appeals Council level ARPS is used. Not only do
adjudicators and other staff members use CPMS and ARPS in their day-to-day work, but the agency also uses data
from these systems to identify and address trends and anomalies existing at the various levels of agency
adjudication.
196
The electronic folder is essentially “an electronic version of a . . . disability claim file [where, among other
things,] all of the medical evidence, correspondence, [and] decisions . . . are stored.” See E-mail from Maren
Weight, Appeals Officer, Soc. Sec. Admin., to Amber Williams, Att’y Advisor, Admin. Conference of the U.S.
(Dec. 18, 2013) (on file with authors). “eView is the mechanism through which all agency employees view the
electronic folder[, while SDR] is the structured format of all the information contained in the electronic folder.” Id.
197
See, e.g., APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at A-13, A-15, A-16, A-18, A-21, A22, A-26, A-29, A-31, A-32 & A-33.
25

Second, to facilitate assessment of the pilot program in Region I, we elected to use a
comparative approach that assessed data from Region I relative to two other SSA regions
(Regions VII and VIII), as well as nationally across all SSA regions. While no comparison is
perfect in such a large adjudication system, Regions I, VII, and VIII share several defining
characteristics that make comparison useful. These regions each have a relatively similar
number of hearing offices,198 ALJs,199 and annual dispositions.200 Also, each region has one
prototype state (i.e., Region I: New Hampshire; Region VII: Missouri; and Region VIII:
Colorado).201 We compared these regions—along with national averages—across the same key
variables relating to case processing times, record development, decisional quality (as measured
by remand frequency percentages), volume and timeliness of evidentiary submissions, and time
intervals between issuance of the notice of hearing and the hearing date. Notable findings from
these comparative empirical analyses are highlighted below.
Record Development. To assess the impact of the pilot program on record development,
we examined the relative frequency with which ALJs ordered CEs in Region I relative to other
regions. ALJs order CEs when “the claimant does not provide adequate evidence about his or
her impairment(s).”202 One may assume that CEs are needed more often in cases where records
have not been adequately developed. It is thus noteworthy that the data show that, from calendar
years (“CYs”) 2010 – 2012, Region I had the lowest percentage of cases for which a CE was
ordered relative to either Regions VII or VIII, or the national average.203 This result may suggest
that the Region I pilot program does—as SSA hoped—promote record development. However,
firm conclusions cannot be drawn (or causal connections made) absent data that are more
sensitive to potentially confounding factors, such as variations across regions (and nationally) in
diseases or impairments, access to medical care, record development at the DDS level, and
quality of representation.
We also evaluated SSA data relating to the comparative frequencies at which ALJs in
Regions I, VII, and VIII (and, collectively, across all regions) left records open after hearings—
often referred to as “putting a case into post”—to assess the impact of the pilot program on posthearing record development. The analyses failed to demonstrate a correlation (either positive or

198

These regions’ respective hearing office totals are as follows: Region I (8); Region VII (9); and, Region VIII (5
and 4 satellite offices). See E-mail from Rainbow Forbes, Appeals Officer, Soc. Sec. Admin., to Amber Williams,
Att’y Advisor, Admin. Conference of the U.S. (June 7, 2013) (on file with authors).
199
Current number of ALJs by region are: Region I (57); Region VII (72); and Region VIII (37). Id.
200
In FY 2012, these regions had 32,174 (Region I), 35,329 (Region VII), and 20,885 (Region VIII) dispositions
respectively. See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at App. D, tbl. A-1, p. A-11
(annual dispositions by region).
201
Prototype states are states in which the reconsideration level has been eliminated. Soc. Sec. Admin., POMS § DI
12015.100-Disability Redesign Prototype Model (Feb. 13, 2012), https://secure.ssa.gov/poms. nsf/lnx/0412015100
(last visited May 23, 2013). After the initial determination, an appealed case is sent to ODAR for a hearing. See id.
The prototype states are: Alabama, Alaska, California (Los Angeles North and West branches only), Colorado,
Louisiana, Michigan, Missouri, New Hampshire, New York, and Pennsylvania—one from each region. See id.
202
Soc. Sec. Admin., HALLEX I-2-5-20-Consultative Examinations and Tests (Sept. 28, 2005), available at
http:/www.ssa.gov/OP_Home/hallex/I-02/I-2-5-20.html (describing when and how to request a CE). The CE should
only include those test(s) the ALJ requires to make his or her decision. See id.
203
See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at App. D, tbl. A-3 & fig. A-3, pp. A-13 &
A-14.
26

negative) between the pilot program and the percentage of cases placed in post-hearing status.204
Given data constraints, it cannot be known at this time whether this finding stems from lack of
data tailored to the pilot program, its current implementation in Region I, or both.
Case Processing Efficiency. A second key area of data analysis centered on the question
of whether the pilot program has had any effect on the efficiency of case processing in Region I
relative to other regions. To that end, we first analyzed comparative average processing times
for cases at the ALJ hearing level (i.e., the time interval between the filing of a request for an
ALJ hearing and issuance of an ALJ decision). This study showed that, over the five-year period
from FY 2008 to
  FY 2012, Region I’s annual average case processing times were generally lower
than those of its sister regions or the nation as a whole.205 Nonetheless, it is difficult to draw
conclusions from this finding because (1) average case processing times generally declined
across all regions in this timeframe, and (2) Region I’s average processing times did not exhibit
the same comparatively steady decline, as did those of the other two regions and the nation.206
We also explored whether implementation of the pilot program correlated with a
reduction in the number of cases pending relative to annual caseloads (as measured by total
number of dispositions annually) over this same five-year period. By evaluating this
pending:disposition ratio, we aimed to minimize the influence of differentials in inter-regional
(and national) caseloads in order to better isolate the impact of the pilot program on case
processing. With the exception of one year (FY 2009), Region I’s pending:disposition ratio
exhibited a consistent downward trend that was unmatched by the other regions or nationally.
Indeed, in FYs 2011 and 2012, Region I exhibits the lowest pending:disposition ratio. This trend
suggests a correlation between enhanced case processing efficiency and the pilot program.
Additional data would be needed, however, to determine whether the pilot program was the
causal factor (or one of the causal factors) in this observed result.
Remand Rates on Certain Evidentiary Issues. The third key area we studied from an
empirical perspective involved assessment of whether the pilot program affected the comparative
frequency with which the Appeals Council remanded cases based on certain evidentiary issues
relevant to the five-day rule.207 SSA tracks the reasons for remands from the Appeals Council
based on remand codes that are entered into its case management databases.208 Each remanded
case may be coded for up to three remand reasons, and the agency analyzes the frequency for
each remand category—what we refer to as the “frequency rate” or “frequency percentage.”
Two of the coded remand categories—“new evidence” and “inadequate record development”—
were studied because they are particularly salient to implementation of the five-day rule. The
“new evidence” code means that the case was remanded due to evidence the claimant submitted

204

See id. at App. D, tbl. A-4 & fig. A-4, tbl. A-5 & fig. A-5, pp. A-14 to A-16.
See id. at App. D, tbl. A-6 & fig. A-6, p. A-17.
206
See id.
207
SSA also provided the Conference with data concerning the rates at which federal courts have remanded cases
back to the agency based on (1) new evidence presented at either the administrative appeal or federal court levels, as
well as (2) inadequate record development. However, the number of times federal courts remanded cases based on
claims originating in Regions I, VII, and VIII respectively on these grounds were so small—that is, generally
numbering in the single digits annually—that reliable analysis could not be conducted.
208
See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, App. D at A-19 (discussing remand
coding and tracking).
205

27

on appeal, while the “inadequate record development” code means that the record did not have
enough information to support the decision that was made. If the pilot program either fails to
provide adequate opportunity for evidence submission or prematurely closes the record, one
would assume that Region I would have higher remand frequency rates for “new evidence”
and/or “inadequate record development” relative to other regions.
Analysis of the SSA data, which covered FY 2008 to FY 2012, did not suggest that the
pilot program was adversely affecting record development in Region I claims. That is, the
comparative data generally did not evidence an uptick in remand frequency percentages for
either “new evidence” or “inadequate record development” in cases originating from Region I as
compared to other regions.209 Region I’s remand frequency rates for these two categories of
Appeals Council remands were lower than in Regions VII and VIII, as well as the national
average.210 These results indicate a modest correlation—though not necessarily causation—
between the pilot program and lower Appeals Council remand frequency rates for “new
evidence” or “inadequate record development.”
Volume and Timing of Evidentiary Submissions Relative to Hearing Dates. The fourth
key area of empirical inquiry concerned both the volume and timing of evidentiary submissions
relative to hearing dates. Our data analyses in this area were aimed most particularly at
evaluating the impact of the five-day rule, though the 75-day notice requirement also plays a role
in timely submissions. We assessed the trends in each region, as well as nationally, for CYs
2010 – 2012.
For this set of analyses, SSA compiled data that was not otherwise directly available from
the agency’s case management systems bearing on the timing, as well as volume, of evidentiary
submissions by claimants (or their representatives) relative to hearing dates.211 More
specifically, for CYs 2010 – 12, these data provided the total annual number of documents
submitted in each region (and nationally) for all cases in which hearings were conducted. These
annual document totals by region were then broken down into fourteen separate time interval
categories capturing document filing dates relative to their respective hearing, starting from
1,000 or more days before the hearing to the hearing date and afterward (with this latter time
category referred to as “hearing+”).212
We found that Regions VII and VIII, as well as the nation, exhibited remarkably similar
document submission/timing profiles in CYs 2010 – 12.213 Focusing on the time intervals most

209

See id. at App. D, tbl. A-9 & fig. A-9, tbl. A-10 & fig. A-10, pp. A-21 to A-23.
See id.
211
See id. at App. D, pp. A-9 to A-10 & A-23 (discussing SSA’s case management systems).
212
For this data set compiled by SSA, a “document” connotes a unit of written information filed by claimants or
representatives, regardless of the number of pages. Thus, a “document” could be a copy of a 100-page medial report
or a one-page letter. Moreover, this SSA-provided data concerned only the quantity of documents filed in each
region annually; it did not provide any qualitative information about the relevance or materiality of any submitted
documents. With respect to time interval categories, the fourteen categories designated by SSA were (in days):
hearing+; 0-5; 6-10; 11-20; 21-30; 31-50; 51-100; 101-200; 201-300; 301-400; 401-500; 501-700; 751-1000; 1000+.
213
See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at App. D, figs. A-11, A-12 & A-13, pp.
A-24 to A-25; see also id. at App. D, pp. A-27 to A-31 (discussing similar results for additional analyses relating to
the timing and volume of document submissions).
210

28

relevant to assessment of the pilot program (i.e., 100 days or less before the hearing to hearing+),
each of the regions (and the nation) show similar patterns as follows: (1) a downward trend in
document submissions from 51-100 days to a trough at 21-30 days; (2) followed by a slight
upswing in document submissions between the 21-30 and 11-20 day intervals; (3) followed by a
downturn in document submissions between the 11-20 and 6-10 day intervals; and (4) ending in
a significant increase in document filings from 6-10 days out from the hearing to the hearing+
interval category.214 In order words, in Regions VII and VIII and nationally, the bulk of
documents submitted in the 30-day period leading up to the hearing (or at or after the hearing),
are submitted in the narrow window of time within five or less days for the hearing, at the
hearing, or after the hearing.
For example, Figure 1 below graphically depicts, for the nation as a whole, the total
number of documents filed annually relative to each of the fourteen time interval categories.

Number
  of
  Documents
  (thousands)

Figure 1: Number & Timing of Document Submissions Nationally, CYs 2010-12
250

NaLonal

200

150

CY10

100

CY11

50

CY12

0

Time
  Intervals
  (days)

Turning to Region I, the results for CYs 2010 – 2012 evidenced both similarities to, and
significant departures from, the document submission/timing profiles of its sister regions and the
nation as a whole. Set forth below in Figure 2 are the data for Region I with respect to total
number of documents filed annually for this three-year time period relative to each of the
fourteen time interval categories.

214

See id. at App. D, figs. A-11, A-12 & A-13, pp. A-24 to A-25.
29

Figure 2: Number & Timing of Document Submissions in Region 1, CYs 2010-12

Number
  of
  Documents
  (thousands)

Region
  1

12

10

8

6

CY10

4

CY11

2

CY12

0

Time
  Intevals
  (days)

As evidenced by this figure, in the time periods farther out from the hearing (i.e., from
1,000+ to 30 days before the hearing), the volume and timing of document submissions in
Region I exhibit a remarkably similar pattern to that of the nation. However, over the course of
the remaining time periods (i.e., from 30 days to hearing+), Region I shows marked differences
in its submission/timing profile. The Region I data show that documents are submitted with
greater frequency in the 6-20 days before hearings (and, concomitantly, with less frequency in
the 0-5 days before hearings or at/after hearings) relative to the nation (or other regions). 215 This
marked outward “bend in the curve” for Region I over the course of the 30 days leading up to
hearings (and thereafter)—particularly its increase in document submissions during the 6-10 day
interval—is highly suggestive of a correlation between the five-day rule and the region’s distinct
document submission/timing profiles in recent years. Of course, absent changes to SSA’s case
processing or information management systems, there is no way to qualitatively assess whether
the pilot program has led to timely, pre-hearing submission of material evidence (as opposed to,
for example, submission of duplicative or irrelevant documents). Nonetheless, from a
quantitative perspective, the pilot program appears to have had an impact on the volume and
timeliness of document submissions.
Issuance of Hearing Notices. The fifth—and final—area of data analyses specifically
related to the Region I pilot program’s 75-day notice requirement. We examined SSA-provided
data for CYs 2005 – 2012 to assess the impact of this requirement on the timing for issuance of
hearing notices relative to hearing dates. These analyses showed that, while average time
intervals between issuance of hearing notices and hearings have been rising steadily at both
regional and national levels in recent years, such time interval increases have been especially
pronounced in Region I.216 Moreover, in both CY 2011 and CY 2012, Region I’s annual

215

See id. at App. D, fig. A-14, p. A-26; see also id. at App D, pp. A-27 to A-31 (discussing similar results for
additional Region 1 analyses relating to the timing and volume of document submissions).
216
See id. at App. D, tbl. A-12 & fig. A-18, pp. A-32 & A-33; see also id. at App. D pp. A-33 & A-34.
30

average time intervals (of 80.8 and 93.9 days respectively) exceeded the 75-day notice
requirement’s default timeframe for issuance of hearing notices, and CY 2010 was not far off
(73.3 days).217 This trend is not surprising given that only Region I—by virtue of the pilot
program—must issue notices of hearing (absent party consent) no less than 75 days prior to
hearings. Nonetheless, the data suggest a strong correlation between the Region I pilot
program’s 75-day notice requirement and the region’s rising time intervals between issuance of
hearing notices and hearings. However, given that average time intervals also rose substantially
in Regions VII and VIII (and nationally) over the same eight-year time period (albeit at a slower
pace), it is also likely that there are other causal factors at play beyond simply the 75-day
requirement. More detailed data would be needed to conduct the types of analyses from which
causal attributions could be potentially formulated.
B. Survey & Interview of SSA Employees: Summary of Responses
As part of our assessment of the impact of the Region I pilot program, we also conducted
interviews and surveys of SSA officials throughout the country to get their views on—and “realworld” experiential practices under—hearing notice and evidentiary submission rules applicable
in their respective regions, including (for those working in Regions II-X) Region I. More
specifically, we administered a national, online survey to ALJs and HODs in all regions, as well
as interviewed ALJs and hearing office staff in Regions I, VII, and VIII, and the NHC.218 We
also met with SSA officials from the Appeals Council to obtain their views.219 Altogether, we
interviewed about 80 SSA officials during the course of this study.220
While the empirical analyses described in Part III.A above show that the pilot program,
as currently implemented in Region I, appears to be making modest strides toward advancing the
goals set forth by SSA at its inception (i.e., improving the efficiency, accuracy, and timeliness of
the Social Security disability benefits adjudication process), survey and interview results suggest
that capturing the overall “real-world” impact (or potential impact) of the pilot program proves
especially challenging. In sum, while a solid majority of SSA ALJs and hearing office staff view
the Region I pilot program favorably and support its expansion to other regions, varied
application (and practices) of the pilot program in Region I—most particularly, the five-day
rule—appear to be clouding the “true” (or potential) impact of the program. A detailed
discussion of perspectives and practices shared by survey and interview respondents on the
Region I pilot program and other regions’ notice and evidentiary submission rules are set forth
below.

217

See id. at App. D, tbl. A-12, p. A-32. Neither of the other two regions (or the nation) had two successive years
during this eight-year period in which the average time interval between notice and hearing exceeded 75 days. See
id.
218
For a detailed summary of the methodology used for surveys conducted (as well as confidence intervals for the
four sampled groups of SSA officials), interviews administered, and the selection of interviewees and survey
respondents, APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at App. A, pp. A-1 to A-3.
219
See id., at App. A, pp. A-2 & A-3 (discussing interview methodology).
220
See id.
31

1. Perspectives on Hearing Notices & Submission of Evidence
This section of the report summarizes the overall views of the Region I pilot program
from ALJs and hearing office staff members in Region I and Regions II-X, as well as specific
perspectives on the program’s 75-day notice requirement and five-day rule.
a. Overall Views of the Region I Pilot Program
Overall, strong majorities of SSA ALJs and HODs favor the Region I pilot program. As
shown in Table 3 below, across all the regions, 60-80% of all ALJs and HODs who responded to
the survey “strongly favor” or “somewhat favor” this program. By comparison, only 9-19% of
these same groups of respondents expressed opposition.221
Table 3: SSA Survey Respondents: Overall Views of Pilot Program
Based on your experience (as an ALJ or HOD in Regions 1-10) over the past year, what is your overall view
of the pilot program in Region 1 (i.e., both the 75-day hearing notice requirement and the closing of the
222
record five days before the hearing (absent showing of good cause) requirement)?

Answer
  Options

A)
  Strongly
  favor

B)
  Somewhat
  favor

C)
  Neutral/Undecided

D)
  Somewhat
  oppose

E)
  Strongly
  oppose

Region
  I
  ALJs

Regions
  II-‐X
  ALJs

Region
  I
  HODs

Regions
  II-‐X
  HODs

Response

Percent

Response
  Percent

  Response

  Percent

Response

Percent

46.2%

19.2%

15.4%

15.4%

3.8%

63.0%

17.7%

9.8%

4.5%

4.8%

33.3%

50.0%

0.0%

0.0%

16.7%

57.4%

24.3%

12.2%

3.5%

2..6%

Moreover, many of the ALJs surveyed elected to supplement their basic responses with
additional thoughts or comments through use of optional text boxes. Here, too, the dominant
sentiment was strong support for the pilot program. ALJs noted, for example, their views that
the program rules help encourage representatives to submit evidence in advance of the hearing,
be more prepared for the hearing and, as a result, the hearing process is more efficient and
effective.223 As one ALJ surveyed noted: “[The] 75 day notice and five-day submission of
evidence rules are proactive in making all scheduled hearings productive and [they] support the
demand for judicial economy in the SSA high volume hearing process.”224 Another ALJ
surveyed stated: “[T]he regulations provide the ALJ with solid tools to promote timely, fair and

221

Additional perspectives from SSA ALJs and HODs surveyed in Region I and Regions II-X are set forth in the
text responses to survey questions which are highlighted throughout this section of the report and which can be
found in full in APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at App. E, pp. A-35 to A-132.
222
See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at Apps. E-1 (Region I ALJs), Survey
Response # 28, at p. A-43; E-2 (Region I HODs), Survey Response # 25, at p. A-62; E-3 (Regions II-X ALJs),
Survey Response # 17, at p. A-72; E-4 (Regions II-X HODs), Survey Response # 16, at p. A-127.
223
See id. at Apps. E-1, Survey Response # 42, at pp. A-52 to A-54; E-3, Survey Response # 27, at p. A-77 to A121.
224
Id. at App. E-1, Survey Response # 42-5, p. A-53.
32

complete hearings.”225 And a third ALJ surveyed stated: “[T]he rules force the [representative]
to be active on the claim earlier, thus resulting in a more complete . . . record.”226
Interestingly, however, closer review of inter-regional differences in survey responses
evidences something akin to a “grass is always greener” dichotomy between the views of the
pilot program in Region I relative to the other regions. That is, support for the pilot program is
consistently stronger in Regions II-X (where the program is not in effect), than in Region I
(where the program’s record closure and hearing notice provisions currently apply). For
example, based on Table 3 above, Region I ALJs express favor for the pilot program (i.e.,
“strongly favor” or “somewhat favor”) at a rate 24% lower than ALJs in Regions II-X.
Similarly, ALJs in Region I report feeling “neutral” or “undecided” about the program at nearly
twice the rate of neutral-responding ALJs in Region II-X. To be sure, the majority of surveyed
ALJs and HODs across all regions favor for the pilot program. Nonetheless, this differential in
inter-regional favorability/opposition percentages may be worth further examination by SSA to
discern the reasons for this contrast.
In assessing the overall views on the Region I pilot program, it is also important to
examine ALJs’ perspectives on its actual (or projected) effects, both positive and negative. The
survey responses make plain that the majority of ALJs across all regions believe that the pilot
program has (or would have) a beneficial impact on the adjudication process. As shown in
Tables 4 and 5 below, majorities of ALJs in both Region I and Regions II-X “strongly agree” or
“agree” that the pilot program not only encourages parties to timely submit evidence before
hearings, but also improves the evidentiary record, reduces the need for supplemental hearings,
and allows an ALJ to adjudicate cases more efficiently and fairly. Similarly, majorities of ALJs
responding to the Region I or Regions II-X surveys “strongly disagree” or “disagree” with the
notion that the pilot program has no effect on how they adjudicate cases.
Table 4: Heat Map of Responses by Region I ALJs to Survey Question on Experiences Under Pilot
Program
Question
  #35:

  Listed
  below
  are
  some
  possible
  experiences
  you
  may—or
  may
  not—have
  had
  in
  the
  past
  year

while
  adjudicating
  cases
  under
  Region
  1’s
  pilot
  program.

  For
  each
  item
  listed
  in
  the
  box
  below,
  please
  indicate

your
  level
  of
  agreement—based
  on
  your
  own
  experience—with
  the
  following
  statement:

  “The
  pilot
  program
  in

227
Region
  1
  …..”

Answer
  Options

Allows
  me
  to
  review
  the

evidentiary
  file
  earlier

Encourages
  parties
  to
  timely

submit

  evidence
  before
  hearings

Reduces
  need
  for
  supplemental

hearings

Strongly

Agree

Agree

Neither

Agree
  or

Disagree

Disagree

Strongly

Disagree

Rating

Average

Response

Count

23.1%

26.9%

23.1%

23.1%

3.8%

3.42

26

50.0%

30.8%

11.5%

7.7%

0.0%

4.23

26

38.5%

23.1%

19.2%

15.4%

3.8%

3.77

26

225

Id. at App. E-1, Survey Response # 19-2, p. A-49.
Id. at App. E-1, Survey Response # 40-2, p. A-52.
227
Id. at App. E-1, Survey Response # 35, p. A-45.
226

33

Question
  #35:

  Listed
  below
  are
  some
  possible
  experiences
  you
  may—or
  may
  not—have
  had
  in
  the
  past
  year

while
  adjudicating
  cases
  under
  Region
  1’s
  pilot
  program.

  For
  each
  item
  listed
  in
  the
  box
  below,
  please
  indicate

your
  level
  of
  agreement—based
  on
  your
  own
  experience—with
  the
  following
  statement:

  “The
  pilot
  program
  in

227
Region
  1
  …..”

Reduces
  need
  for
  consultative

examinations

Allows
  me
  to
  adjudicate
  cases

more
  efficiently

Allows
  me
  to
  adjudicate
  cases

more
  fairly

Improves
  the
  evidentiary
  record

Has
  had
  no
  effect
  on
  how
  I

adjudicate
  cases

15.4%

23.1%

34.6%

23.1%

3.8%

3.23

26

46.2%

15.4%

26.9%

3.8%

7.7%

3.88

26

38.5%

15.4%

30.8%

11.5%

3.8%

3.73

26

42.3%

23.1%

19.2%

11.5%

3.8%

3.88

26

11.5%

15.4%

15.4%

19.2%

38.5%

2.42

26

(Note: “Heat map” above shows graphical distribution of survey response values by color-coding higher
response values with darker colors.)
Table 5: Heat Map of Responses by Regions II-X ALJs to Survey Question on Experiences Under
Pilot Program
Question
  #25:

  Listed
  below
  are
  some
  possible
  effects
  expanding
  Region
  1’s
  pilot
  program
  to
  other
  SSA
  Regions

may
  have
  in
  your
  cases.

  For
  each
  item
  listed
  in
  the
  box
  below,
  please
  indicate
  your
  level
  of
  agreement—based

on
  your
  own
  opinion
  and
  experience
  as
  an
  ALJ—with
  the
  following
  statement:

  “I
  believe
  expanding
  the
  pilot

228
program
  in
  Region
  1
  to
  other
  SSA
  Regions
  will
  …..”

Answer
  Options

Allows
  me
  to
  review
  the

evidentiary
  file
  earlier

Encourage
  parties
  to
  timely

submit
  evidence
  before
  hearings

Reduce
  the
  need
  for

supplemental
  hearings

Reduce
  the
  need
  for
  consultative

examinations

Allow
  me
  to
  adjudicate
  cases

more
  efficiently

Allow
  me
  to
  adjudicate
  cases

more
  fairly

Improve
  the
  evidentiary
  record

Have
  no
  effect
  on
  how
  I

adjudicate
  cases

Strongly

Agree

Agree

Neither

Agree
  or

Disagree

Disagree

Strongly

Disagree

Rating

Average

Response

Count

31.7%

31.1%

26.7%

6.8%

3.8%

3.80

679

65.8%

26.2%

3.1%

3.4%

1.5%

4.52

679

45.4%

31.1%

14.1%

7.2%

2.2%

4.10

679

12.4%

19.3%

43.7%

19.6%

5.0%

3.14

679

53.0%

29.3%

11.0%

3.5%

3.1%

4.26

679

36.8%

23.0%

26.7%

8.0%

5.6%

3.77

679

54.6%

27.5%

11.8%

3.4%

2.7%

4.28

679

5.0%

7.5%

21.5%

30.9%

35.1%

2.16

679

(Note: “Heat map” above shows graphical distribution of survey response values by color-coding higher
response values with darker colors.)

228

Id. at App. E-3, Survey Response # 25, p. A-75.
34

ALJs in Region I and Regions II-X were also asked about possible negative effects of the
pilot program on either unrepresented claimants or represented claimants.229 As depicted in
Tables 6 and 7 below, ALJs in Region I and Regions II-X reject the view that claimants or
representatives have experienced (or would experience) undue difficulties under the pilot
program’s rules. As one ALJ surveyed in Region IV put it: “ALJs bend over backwards to give
[claimants] a full and fair hearing.”230 Indeed, strong majorities of ALJs across all regions
“strongly disagree” or “disagree” with statements that this program unduly formalizes the
hearing process, interferes with a claimant’s right to a full and fair hearing, prejudices claimants
who secure representation late in the process, or is difficult to adhere to because of delays in
medical provider responses to medical records requests. The only negative effects with which
ALJs expressed modest concern (i.e., response percentages for “strongly agree” or “agree” at or
above 20%) were unrepresented claimants’ difficulties in understanding pilot program rules and
compliance difficulties because medical providers delay responding to records requests. Indeed,
many ALJs we surveyed and interviewed noted that unrepresented claimants would have
difficulty complying with the rules because they often depend on the agency for help in
understanding the hearing process and obtaining medical records and other pieces of evidence.
Table 6: Heat Map of Responses by Region I ALJs to Survey Question on Claimant Experiences
Under the Pilot Program
Question
  #38
  :

  Listed
  below
  are
  some
  possible
  experiences
  that,
  in
  your
  view,
  claimants
  and/or
  their

representatives
  may—or
  may
  not—have
  had
  in
  the
  past
  year
  while
  having
  claims
  adjudicated
  under
  Region
  1’s

pilot
  program.

  For
  each
  item
  listed
  in
  the
  box
  below,
  please
  indicate
  your
  level
  of
  agreement—based
  on
  your

231
own
  experience—with
  the
  statement
  that:

  “The
  pilot
  program
  in
  Region
  1
  …..”

Answer
  Options

Is
  difficult
  for
  unrepresented

claimants
  to
  understand

Unduly
  formalizes
  the
  hearing

process

Interferes
  with
  a
  claimant’s
  right

to
  a
  full
  and
  fair
  hearing

Prejudices
  claimants
  who
  secure

representation
  close
  to
  the

hearing
  date

Leads
  to
  incomplete
  evidentiary

records

Is
  difficult
  to
  comply
  with

because
  medical
  providers
  delay

responding
  to
  requests
  for

medical
  records

Strongly

Agree

Agree

Neither

Agree
  or

Disagree

Disagree

Strongly

Disagree

Rating

Average

Response

Count

8.0%

28.0%

20.0%

28.0%

16.0%

2.84

25

4.0%

4.0%

4.0%

56.0%

32.0%

1.92

25

8.0%

0.0%

0.0%

52.0%

40.0%

1.84

25

4.0%

4.0%

12.0%

48.0%

32.0%

2.00

25

4.0%

0.0%

12.0%

48.0%

36.0%

1.88

25

4.0%

16.0%

16.0%

40.0%

24.0%

2.36

25

229

These effects have often been offered by opponents of the program as reasons not to expand it to other regions.
See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at App. E-1, Survey Response # 42-2, pp.
A-52 & A-53.
231
Id. at App. E-1, Survey Response # 38, p. A-46.
230

35

Question
  #38
  :

  Listed
  below
  are
  some
  possible
  experiences
  that,
  in
  your
  view,
  claimants
  and/or
  their

representatives
  may—or
  may
  not—have
  had
  in
  the
  past
  year
  while
  having
  claims
  adjudicated
  under
  Region
  1’s

pilot
  program.

  For
  each
  item
  listed
  in
  the
  box
  below,
  please
  indicate
  your
  level
  of
  agreement—based
  on
  your

231
own
  experience—with
  the
  statement
  that:

  “The
  pilot
  program
  in
  Region
  1
  …..”

Fails
  to
  account
  for
  a
  claimant’s

need
  to
  submit
  new
  (or
  updated)

medical
  evidence
  due
  to
  changes

in
  his/her
  medical
  condition

Does
  not
  seem
  to
  have
  any
  effect

on
  claimants
  and/or
  their

representatives

4.0%

8.0%

16.0%

48.0%

24.0%

2.20

25

4.0%

16.0%

40.0%

20.0%

20.0%

2.64

25

(Note: “Heat map” above shows graphical distribution of survey response values by color-coding higher
response values with darker colors.)
Table 7: Heat Map of Responses by Region II-X ALJs to Survey Question on Claimant Experiences
Under the Pilot Program
Listed
  below
  are
  some
  possible
  effects
  that
  expanding
  Region
  1’s
  pilot
  program
  to
  other
  SSA
  Regions
  may
  have

on
  claimants
  and/or
  their
  representatives.

  For
  each
  item
  listed
  in
  the
  box
  below,
  please
  indicate
  your
  level
  of

agreement—based
  on
  your
  own
  opinion
  and
  experience
  as
  an
  ALJ—with
  the
  following
  statement:

  “I
  believe

232
expanding
  the
  pilot
  program
  in
  Region
  1
  to
  other
  SSA
  Regions…..”

Answer
  Options

Would
  make
  it
  more
  difficult
  for

unrepresented
  claimants
  to

understand
  the
  process

Would
  unduly
  formalize
  the

hearing
  process

Would
  interfere
  with
  a
  claimant’s

right
  to
  a
  full
  and
  fair
  hearing

Would
  prejudice
  claimants
  who

secure
  representation
  close
  to

the
  hearing
  date

Would
  lead
  to
  incomplete

evidentiary
  records

Would
  be
  difficult
  to
  comply
  with

because
  medical
  providers
  delay

in
  responding
  to
  requests
  for

medical
  records

Fails
  to
  account
  for
  a
  claimant’s

need
  to
  submit
  new
  (or
  updated)

medical
  evidence
  due
  to
  changes

in
  his/her
  medical
  condition

Would
  not
  appear
  to
  have
  any

effect
  on
  claimants
  and/or
  their

representatives

Strongly

Agree

Agree

Neither

Agree
  or

Disagree

Disagree

Strongly

Disagree

Rating

Average

Response

Count

6.5%

15.2%

22.5%

37.1%

18.6%

2.54

676

2.5%

4.1%

11.8%

42.8%

38.8%

1.89

676

3.7%

3.3%

10.1%

37.9%

45.1%

1.83

676

3.8%

12.1%

16.0%

42.8%

25.3%

2.26

676

3.7%

8.3%

14.2%

42.6%

31.2%

2.11

676

6.7%

15.8%

18.0%

39.1%

20.4%

2.49

676

6.8%

12.4%

17.8%

40.1%

22.9%

2.40

676

10.7%

17.6%

27.1%

30.0%

14.6%

2.80

676

232

Id. at App. E-3, Survey Response # 26, p. A-75.
36

With respect to expansion of the pilot program, ALJs across all regions expressed strong
support for its implementation beyond Region I. About 70% of surveyed ALJs from both
Region I and Regions II-X agreed that the pilot program should be expanded to other regions.233
Supporters of expansion posited a variety of positive effects they believed would flow from
moving the pilot program outside the confines of Region I. For example, an ALJ in Region IV
expressed the following view: “[T]his is a [program] that needs to be quickly and fully
implemented.”234 Another Region IV ALJ surveyed noted that “[a]pplying Region I’s policies
would greatly help us handle cases promptly, reduce backlog, and require attorneys to do their
jobs properly.”235 A third ALJ from Region IV stated that expansion would “[i]mprove the
quality of representation, reduce the incidence of low merit cases, improve the quality of
evidence, reduce the total volume of medical exhibits, significantly reduce processing time and
[reduce] post-hearing delays in record completion.”236 And a Region I ALJ noted: “I think the
pilot has been a good thing and I would favor it being uniformly applied nationally.”237
In addition to ALJs, we also asked Appeals Council officials during interviews their
overall impression of Region I’s pilot program. Most of the Appeals Council officials
interviewed expressed support for the 75-day notice requirement and the five-day rule.238 They
viewed the pilot program as furthering the agency’s goals of making sure those who merit
disability benefits are paid as early as possible and of quickly achieving final resolution in a
case.239 As one Administrative Appeals Judge (“AAJ”) noted: “The two rules taken together
help to ensure a fair and balanced adjudication system which make sure meritorious claims are
paid as quickly as possible.”240
Many Appeals Council officials expressed their belief that the pilot program should be
expanded nationwide to improve efficiency in the adjudicatory process by encouraging timely
submission of evidence. As one AAJ put it: “If the Region I pilot program’s rules were
expanded to other regions, better decisions would result and there would be less appeals.”241
Indeed, the majority of Appeals Council officials interviewed believed that expansion of the
program to other regions would result in fewer appeals, thus making the appellate body’s
workload lighter and the adjudicatory process more efficient. Many AAJs also expressed
support for pilot program expansion because they felt that having the 75-day notice requirement
and the five-day rule would prevent some representatives from strategically withholding
evidence in order to get a “second bite at the apple” at the Appeals Council level.242 Several
officials noted that they have reviewed cases where new evidence was submitted on appeal that

233

See id. at Apps. E-1, Survey Response # 41, p. A-47; E-3, Survey Response # 24, p. A-74.
See id. at App. E-3, Survey Response # 27-122, pp. A-94 & A-95.
235
See id. at App. E-3, Survey Response # 27-112, p. A-92.
236
See id. at App. E-3, Survey Response # 27-27, p. A-80.
237
See id. at App. E-1, Survey Response # 42-4, p. A-53.
238
See In-person interviews with Appeals Council officials (Jan. 29-30, 2013) [hereinafter Appeals Council
Interview] (interview notes on file with authors).
239
See id.
240
See In-person interview with AAJ (Jan. 29, 2013) [hereinafter AAJ Jan. 29 Interview] (interview notes on file
with authors).
241
See In-person interview with AAJ (Jan. 30, 2013) (interview notes on file with authors).
242
See Appeals Council Interview, supra note 238.
234

37

could have been submitted at the initial hearing and they believe some representatives
intentionally withhold evidence.243
Not every Appeals Council official we interviewed supported expansion of the Region I
pilot program. A minority of such individuals questioned the extent to which the program’s rules
are consistently followed and accordingly, the true impact of the program.244 One AAJ
expressed doubt that either the five-day rule or the 75-day notice requirement had much effect on
the appeals process, and stated: “In general, very few cases I review even involve the issue of
new evidence at all so the five-day rule never comes up in any of my cases.”245 Similarly,
another AO seemed skeptical about whether the five-day rule impacts evidentiary submissions,
noting that the rule appeared to be rarely used to exclude evidence because ALJs in Region I
generally admitted evidence under the good cause exception. “I have never read an ALJ decision
which excluded evidence based on the five-day rule,” this AO said.246
In sum, majorities of ALJs, HODs, and Appeals Council officials we surveyed and
interviewed viewed Region I’s pilot program favorably and support its expansion to other
regions. Nonetheless, within this pool of support, there exist varying views on particular aspects
of the pilot program’s five-day rule and 75-day notice requirement that warrant closer
examination. Accordingly, we turn below to an exploration of the specific perspectives of ALJs,
HODs, and members of the Appeals Council on the five-day rule and 75-day notice requirement
as illuminated by surveys and interviews responses.
b. Five-Day Rule
The majority of surveyed ALJs and HODs across all regions expressed support for the
five-day rule. Tables 8 and 9 below provide the survey response percentages for ALJs and
HODs in Region I and Regions II-X respectively. Respondents expressed solid support for the
five-day rule, with favorable response percentages (i.e., “strongly” or “somewhat” favorable)
averaging 80% across all four groups. By contrast, no more than 7.7% of respondents to any
survey expressed opposition (i.e., “somewhat oppose” or “strongly oppose”) to the rule. One
ALJ in Region I explained his support for the rule (via survey text box) by noting that “[the rule
has] helped representatives understand that they must request evidence from medical providers
much sooner than they did in the past; has greatly reduced the need to keep the record open for
additional evidence; [and] [h]as made the overall hearing process more efficient.”247

243

See id.
Indeed, survey and interview responses regarding current notice of hearing and evidentiary submission practices
in Region I appear to show that enforcement of the pilot program is inconsistent. For a full discussion of these
practices and the apparent inconsistency, see infra Pt. III.B.2.
245
See In-person interview with AAJ (Feb. 4, 2013) (interview notes on file with authors).
246
See In-person interview with AO (Jan. 29, 2013) (interview notes on file with authors).
247
See id. at App. E-1, Survey Response # 40-4, p. A-52.
244

38

Table 8: Views of Region I ALJs/HODs on Five-Day Rule
Based
  on
  your
  experience
  as
  an
  ALJ
  in
  Region
  1
  (or
  a
  HOD
  in
  Region
  1)
  over
  the
  past
  year,
  what
  is
  your
  view
  of

the
  closing
  of
  the
  record
  five
  days
  before
  the
  hearing
  (absent
  showing
  of
  good
  cause)
  requirement
  portion
  of

248
Region
  1's
  pilot
  program?

  ALJs

  HODs

Answer
  Options

A)
  Strongly
  favor

B)
  Somewhat
  favor

C)
  Neutral/Undecided

D)
  Somewhat
  oppose

E)
  Strongly
  oppose

Response
  Percent

Response
  Percent

57.7%

23.1%

3.8%

7.7%

7.7%

83.3%

16.7%

0.0%

0.0%

0.0%

Table 9: Views of Regions II-X ALJs/HODs on Five-Day Rule
Based
  on
  your
  experience
  as
  an
  ALJ
  (or
  HOD)
  at
  SSA,
  what
  is
  your
  view
  of
  the
  closing
  of
  the
  record
  five
  days

  249
before
  the
  hearing
  (absent
  showing
  of
  good
  cause)
  requirement
  portion
  of
  Region
  1's
  pilot
  program?

  ALJs

  HODs

Answer
  Options

Response
  Percent

Response
  Percent

A)
  Strongly
  favor

B)
  Somewhat
  favor

76.2%

72.2%

12.0%

2.9%

15.7%

7.0%

3.7%

5.1%

4.3%

0.9%

C)
  Neutral/Undecided

D)
  Somewhat
  oppose

E)
  Strongly
  oppose

Survey respondents were also asked for their views (if any) on whether the five-day rule
provided “the right amount” of time to adequately review the record (ALJ surveys) or properly
prepare the evidentiary file (HODs). Responses to the four surveys plainly showed that ALJs
and HODs in Region I and Regions II-X believe that closing the record five days before a
hearing (subject to good cause exceptions) indeed provides the right amount of time for both
tasks (see Tables 10 and 11 below). While most respondents viewed the five-day rule favorably,
a minority of respondents—ranging from 12% (Regions II-X HODs) to 24% (Regions II-X
ALJs)—believed five days was not enough time. Survey respondents suggesting longer
timeframes (via text box) recommended, on average, that the record instead close 10-12 days
before the hearing.250

248

See id. at Apps. E-1, Survey Response # 32, at p. A-44; E-2, Survey Response # 29, at pp. A-63 & A-64.
See id. at Apps. E-3, Survey Response # 21, pp. A-73 & A-74; App. E-4, Survey Response # 20, p. A-128.
250
See id. at Apps. E-1, Survey Response # 34, p. A-50; App. E-3, Survey Response # 23, p. A-77; E-4, Survey
Response # 19, p. A-129.
249

39

Table 10: Responses of Region I ALJs/HODs to Survey Question on Propriety of Timeframe in
Five-Day Rule
What
  do
  you
  think
  of
  the
  current
  rule
  in
  Region
  1
  closing
  the
  evidentiary
  record
  five
  (5)
  days
  before
  the
  hearing

(absent
  a
  showing
  of
  good
  cause)—that
  is,
  does
  it
  give
  ALJs
  the
  right
  amount
  of
  time
  to
  adequately
  review
  the

evidentiary
  record
  before
  the
  hearing
  (or
  for
  HODs,
  does
  it
  give
  case
  managers
  the
  right
  amount
  of
  time
  to

251
properly
  prepare
  the
  evidentiary
  file
  before
  ALJs
  review
  of
  the
  record
  before
  a
  hearing)?

Answer
  Options

A)
  Far
  too
  little
  time

B)
  Too
  little
  time

C)
  Just
  right

D)
  Too
  much
  time

E)
  Far
  too
  much
  time

  ALJs

  HODs

Response
  Percent

Response
  Percent

7.7%

7.7%

76.9%

3.8%

3.8%

0.0%

16.7%

83.3%

0.0%

0.0%

Table 11: Responses of Regions II-X ALJs/HODs to Survey Question on Propriety of Timeframe in
Five-Day Rule
What
   do
   you
   think
   of
   the
   current
   rule
   in
   Region
   1
   closing
   the
   evidentiary
   record
   five
   (5)
   days
   before
   the
   hearing

(absent
  a
  showing
  of
  good
  cause)—that
  is,
  does
  it
  give
  ALJs
  the
  right
  amount
  of
  time
  to
  adequately
  review
  the

evidentiary
   record
   before
   the
   hearing
   (or
   for
   HODs,
   does
   it
   give
   case
   managers
   the
   right
   amount
   of
   time
   to

252
properly
  prepare
  the
  evidentiary
  file
  before
  ALJs
  review
  of
  the
  record
  before
  a
  hearing)?

Answer
  Options

A)
  Far
  too
  little
  time

B)
  Too
  little
  time

C)
  Just
  right

D)
  Too
  much
  time

E)
  Far
  too
  much
  time

  ALJs

  HODs

Response
  Percent

Response
  Percent

2.9%

20.9%

72.8%

2.8%

0.6%

0.0%

12.2%

85.2%

2.6%

0.0%

Interviews with SSA employees, moreover, generally evidenced these same levels of
support for the five-day rule. During interviews, we asked Region I and Regions II-X ALJs and
hearing office staff whether, in their view, the pilot program’s five-day rule provided the right
amount of time for pre-hearing compilation and review of the evidentiary record. The ALJs
generally spoke in support of this record-closing timeframe.253 Most judges noted that they
review the record one to three days before the hearing, so that closing the record five days prior

251

Id. at Apps. E-1, Survey Response # 33, p. A-44 & A-45; E-2, Survey Response # 30, p. A-64.
Id. at Apps. E-3, Survey Response # 22, p. A-74; E-4, Survey Response # 21, p. A-128.
253
See In-person, video teleconference, and telephone interviews with ALJs in Regions I, VII, and VIII (Feb. 4-5
and Feb. 11-14, 2013) [hereinafter Multiple ALJ Feb. Interviews] (interview notes on file with authors).
252

40

to the hearing provides provided them adequate time for pre-hearing record review. However, as
with some survey respondents, a few Region I ALJs we interviewed suggested that the record
should close more than five days before the hearing. One ALJ in Hartford, CT opined that it
would be preferable if the record closed fourteen days before the hearing, though he also added
that his preferred record-closure timeframe might not be realistic given the burden it might place
on representatives seeking to obtain claimants’ medical records from health care providers who
delayed responding to such requests.254 Another ALJ in Portland, ME stated that he felt a rule
closing the record 10 days before the hearing would be more appropriate because this would
allow hearing office staff to send a claimant’s medical records to a medical expert in advance of
the hearing.255
Hearing office staff that we interviewed (i.e., case technicians, decision writers, group
supervisors, and hearing office directors) in Regions I, VII, and VIII, also expressed broad
support for the record-closing timeframe embodied in the five-day rule.256 Nonetheless, a few
hearing office staffers told us that extending record closure from five days to seven to 10 days
before the hearing would be better.257 The individuals who made these suggestions noted that
doing so would give hearing office staff more time before the hearing to properly review and
organize claimants’ evidentiary submissions.258
Lastly, our interviews and surveys of SSA ALJs and other hearing office staff illuminated
three additional matters related to the five-day rule that warrant discussion: (1) the interrelated
nature of issues relating to expansion, uniformity, and enforcement of the rule; (2) perceived
tension between the rule and an ALJ’s duty to develop the record; and (3) concerns about
enforcing the rule against unrepresented claimants. Each of these areas is discussed in brief
below.
Interrelated Issues of Expansion and Enforcement of the Five-day Rule. Many surveyed
ALJs, as well as those with whom we met, stated that their views on whether (or how) to expand
the five-day rule beyond Region I are inextricably entwined with effective enforcement of the
rule. Several Region I ALJs we spoke to who favored expansion of the five-day rule to other
regions expressed a belief that a national rule on closing the evidentiary record would be best.
For example, one ALJ in Providence, RI opined that it makes little sense to enforce different
evidentiary/record-closure rules across regions; accordingly, he hoped the five-day rule would be
expanded beyond Region I.259
Some Region I ALJs also emphasized the importance of ensuring effective enforcement
of the rule (i.e., preclusion of untimely evidence absent showing of good cause) should it be

254

See Video teleconference interview with ALJ (Feb. 4, 2013) [hereinafter ALJ Feb. 4 VTC Interview] (interview
notes on file with authors).
255
See Video teleconference interview with ALJ (Feb. 5, 2013) [ALJ Feb. 5 VTC Interview] (interview notes on file
with authors).
256
See In-person, video teleconference, and telephone interviews with hearing office staff members in Regions I,
VII, and VIII (Feb. 4-5 and Feb. 11-14, 2013) (interview notes on file with authors).
257
See id.
258
Id.
259
See ALJ Feb. 4 VTC Interview, supra note 254.
41

expanded to other regions.260 “If [SSA] is going to expand the five-day rule to other regions,”
noted an ALJ in Boston, MA, “the agency should make sure it has some teeth first.”261
Similarly, a senior judge in Boston, MA conditioned his support for expansion of the rule outside
the region on effective enforcement and assessment: “We need to do a better job of enforcing
and evaluating the five-day rule right here in Region I, before expanding it to other regions.”262
An ALJ from Portland, ME suggested that if the five-day rule were expanded, training ALJs on
how and when to enforce the rule would be critical.263 One ALJ surveyed in Region V noted:
“The five-day rule is good, although I would like to ensure that the ‘good cause’ [exception] is
not so broad as to make the five-day rule meaningless.”
Perceived Tension between Five-Day Rule and ALJ Record-Development Duties. A
number of ALJs that we interviewed, as well as surveyed, expressed their concern that the fiveday rule stood in tension with their affirmative duty to ensure a fully-developed record. One
ALJ surveyed in Region VII out it this way:
Closing the record before the hearing is patently unfair to the claimant and is
placing the efficiency of process over a claimant’s right to have a fair hearing.
Part of the duty of the ALJ is to fully and fairly develop the record. This process
places an unfair burden on the claimant.264
Another ALJ interviewed in Boston, MA expressed her wariness of excluding evidence under the
five-day rule, even when submitted on an untimely basis, because of her duty to develop the
record.265 “I worry that if I do not admit the evidence, the case will come back on remand from
the Appeals Council because of my failure to develop the record,” she said.266 Such concerns
from a minority of ALJs stand in contrast to the generally favorable views afforded the pilot
program (including the five-day rule) by ALJs and HODs in their survey responses, as well as
the support for the five-day rule expressed by Appeals Council officials whom we interviewed
for this report.267
To be sure, only a few of the Region I ALJs we interviewed believed the five-day rule as
standing in tension with their duty to develop the record. One ALJ in Portland, ME noted that
closing the record five days before the hearing actually helps him perform his duty as an ALJ
better because the five-day rule encourages claimants and their representatives to be more
aggressive about submitting evidence in a timely fashion before the hearing, which means he can

260

Issues with current evidentiary submission practices in Region I and enforcement of the five-day rule are
discussed more fully infra Pt. III.B.2.
261
See In-person interview with ALJ (Feb. 5, 2013) [hereinafter ALJ Feb. 5 Interview] (interview notes on file with
authors).
262
See In-person interview with ALJ (Feb. 4, 2013) [hereinafter ALJ Feb. 4 Interview] (interview notes on file with
authors).
263
See ALJ Feb. 5 VTC Interview, supra note 255.
264
See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at Apps. E-3, Survey Response # 27-124,
at p. A-95.
265
See ALJ Feb. 5. Interview, supra note 255.
266
See id.
267
A summary of the Appeals Council’s favorable views on the Region I pilot program is provided supra Pt.
III.B.1.a.
42

review the record and potentially issue a decision earlier.268 “In my mind, there is no tension.
Closing the record ensures administrative finality, making sure that evidence is examined and
cases are processed in a timely manner so that disability benefits can be paid as soon as
possible,” he said.269
Concerns about Enforcement of Five-Day Rule against Unrepresented Claimants. Many
ALJs we interviewed and surveyed made plain their concerns that, because unrepresented
claimants face special challenges, compliance with the five-day rule was (or would be) difficult
and, in some cases, impossible. Nearly all of the Region I ALJs responding to our survey
reported “almost always” or “frequently” granting unrepresented claimants’ requests for good
cause exceptions.270 ALJs in other regions expressed similar views. A number of such ALJs
noted either not supporting expansion of the five-day rule to the extent it would apply to
unrepresented claimants, or, if the rule was expanded, supporting inclusion of special precautions
to ensure that unrepresented claimants were not unfairly prejudiced or unduly burdened.271 As
one ALJ in Region X put it: “The unrepresented claimants that I see have no ability, physically
or mentally, to comply with the requirement.”272
Similarly, almost all of the ALJs interviewed in Regions I, VII, and VIII reported either
not enforcing the five-day rule against unrepresented claimants or invariably invoking the good
cause exception as a basis for admitting untimely evidence. For example, an ALJ in
Lawrenceville, MA explained that he did not think the five-day rule should apply to
unrepresented claimants because, in his view, they did not know enough about the procedural
rules. To do otherwise, he believed, would lead to improvident denial of potentially meritorious
claims for benefits.273 Another ALJ in Providence, RI observed that, while most of the claimants
that appear before him are represented, he is much more lenient with those few without
representation.274 He went on to explain that, instead of disallowing untimely evidence from
unrepresented claimants, he would often develop the record on his own by ordering a CE after
the hearing or getting additional medical expert testimony.275
c. 75-Day Notice Requirement
Both the survey results and interview responses evidence broad and overwhelmingly
favorable support for the 75-day notice requirement. Indeed, as shown in Tables 12 and 13
below, the vast majority of ALJs and HODs surveyed in Region I and Regions II-X “strongly
favor” or “favor” the 75-day notice requirement.

268

See ALJ Feb. 5 Interview, supra note 261.
See id.
270
See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at App. E-1, Survey Response # 15, p. A39 (total of 96% of Region I ALJ survey respondents reported “almost always” or “frequently” granting good causebased requests for submission of evidence less than five days before hearings).
271
See id. at Apps. E-1, Survey Response # 38, p. A-46; E-3, Survey Response # 26, pp. A-75 & A-76; see also
Multiple ALJ Feb. Interviews, supra note 253.
272
See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at App. E-3, Survey Response # 27-66, p.
A-85.
273
See ALJ Feb. 4 VTC Interview, supra note 254.
274
See ALJ Feb. 5 VTC Interview, supra note 255.
275
Id.
269

43

Table 12: Responses of Region I ALJs/HODs to Survey Question on Experiences Under 75-Day
Hearing Notice Requirement
Based
   on
   your
   experience
   as
   an
   ALJ
   in
   Region
   1
   (or
   HOD
   in
   Region
   1)
   over
   the
   past
   year,
   what
   is
   your
   overall

276
view
  of
  the
  75-‐day
  hearing
  notice
  requirement
  portion
  of
  the
  pilot
  program
  in
  Region
  1?

  ALJs

Answer
  Options

  HODs

Response
  Percent

A)
  Strongly
  favor

B)
  Somewhat
  favor

C)
  Neutral/Undecided

D)
  Somewhat
  oppose

E)
  Strongly
  oppose

50.0%

19.2%

7.7%

15.4%

7.7%

Response

Percent

33.3%

33.3%

0.0%

16.7%

16.7%

Table 13: Responses of Regions II-X ALJs/HODs to Survey Question on Experiences Under 75-Day
Hearing Notice Requirement
Based
  on
  your
  experience
  as
  an
  ALJ
  (or
  as
  a
  HOD)
  at
  SSA,
  what
  is
  your
  overall
  view
  of
  the
  75-‐day
  hearing
  notice

  277
requirement
  portion
  of
  the
  pilot
  program
  in
  Region
  1?

Answer
  Options

A)
  Strongly
  favor

B)
  Somewhat
  favor

C)
  Neutral/Undecided

D)
  Somewhat
  oppose

E)
  Strongly
  oppose

  ALJs

  HODs

Response
  Percent

Response
  Percent

40.0%

24.2%

19.4%

9.5%

6.9%

40.9%

29.6%

16.5%

9.6%

3.5%

Similarly, the majority of ALJs and HODs surveyed in Region I and Regions II-X agree
that 75 days’ notice is the right amount of time to provide to claimants and/or their
representatives (see Tables 14 and 15 below). Notably, however, some 38% of ALJs in Region I
and 46% of ALJs in Regions II-X believed that 75 days’ notice provides claimants and
representatives with “too much time” or “far too much time.” Survey respondents suggesting
shorter timeframes (via text box) recommended, on average, that the hearing notice be issued 4950 days prior to the hearing.278

276

See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, Apps. E-1, Survey Response # 29, at A43; E-2, Survey Response # 26, p. A-63.
277
See id. at Apps. E-3, Survey Response # 18, at p. A-73; E-4, Survey Response # 17, at p. A-127.
278
See id. at Apps. E-1, Survey Response # 31, at p. A-50; E-3, Survey Response # 20, at p. A-76; E-4, Survey
Response # 19, at p. A-129.
44

Table 14: Responses of Region I ALJs/HODs to Survey on Propriety of Timeframe in 75-Day
Hearing Notice Requirement
What
  do
  you
  think
  of
  the
  current
  rule
  in
  Region
  1
  requiring
  at
  least
  75
  days’
  notice
  of
  a
  hearing
  date—that
  is,

279
does
  it
  give
  the
  right
  amount
  of
  advance
  notice
  to
  claimants
  and/or
  their
  representatives?

Answer
  Options

A)
  Far
  too
  little
  time

B)
  Too
  little
  time

C)
  Just
  right

D)
  Too
  much
  time

E)
  Far
  too
  much
  time

  ALJs

  HODs

Response
  Percent

Response
  Percent

0.0%

3.8%

57.7%

30.8%

7.7%

0.0%

0.0%

83.3%

0.0%

16.7%

Table 15: Responses of Regions II-X ALJs/HODs to Survey Question on Propriety of Timeframe in
75-Day Hearing Notice Requirement
What
  do
  you
  think
  of
  the
  current
  rule
  in
  Region
  1
  requiring
  at
  least
  75
  days’
  notice
  of
  a
  hearing
  date—that
  is,

280
does
  it
  give
  the
  right
  amount
  of
  advance
  notice
  to
  claimants
  and/or
  their
  representatives?

  ALJs

  HODs

Answer
  Options

A)
  Far
  too
  little
  time

B)
  Too
  little
  time

C)
  Just
  right

D)
  Too
  much
  time

E)
  Far
  too
  much
  time

Response
  Percent

Response
  Percent

0.3%

2.8%

51.5%

39.4%

6.0%

0.9%

0.9%

57.4%

35.7%

5.2%

During their interviews, Region I ALJs expressed the same strong support for the 75-day
notice requirement as found in the survey responses.281 Several ALJs noted that they support the
rule because 75 days provides the claimant or their representative enough time both to request
medical records from providers and submit such records to the hearing office in a timely fashion.
As one ALJ in Portland, ME opined: “Seventy-five days is enough time for any diligent
representative to prepare for the hearing by gathering and submitting evidence in advance of the
hearing.”282 When asked whether the 75-day notice requirement burdens them in any way, most
Region I ALJs noted that it does not because they are now used to having their cases scheduled
far in advance of the hearing in order to adhere to this requirement.
Although some hearing offices in Region I send out notices of hearing farther in advance
than required under the rule, the majority of Region I ALJs we interviewed did not believe that

279

Id. at Apps. E-1, Survey Response # 30, p. A-44; E-2, Survey Response # 27, p. A-63.
Id. at Apps. E-3, Survey Response # 19, p. A-73; E-4, Survey Response # 18, p. A-127.
281
See In-person and video teleconference interviews held with ALJs in Region I (Feb. 4-5, 2013) (interview notes
on file with authors).
282
See ALJ Feb. 5 VTC Interview, supra note 255.
280

45

the required notice period should not be any longer than 75 days and, like some survey
respondents, felt that a shorter notice timeframe—such as 45 or 60 days—would be adequate.
One ALJ in Providence, RI, who previously worked as a claimants’ representative, noted that he
simply did not see the point of sending out notices any earlier than 75 days. “The 75-day notice
requirement provides just the right amount of time,” he asserted, “[and] additional time is not
needed because, based on my experience, claimants’ representatives would not use that
additional time, they would simply sit on the case until it gets closer to the hearing date.”283
Only a few Region I ALJs interviewed expressed a desire to provide more advance notice. For
example, a senior judge in Lawrenceville, MA stated that, although he believes 75 days is
enough notice time, he would prefer a rule providing 90 days just to make sure representatives
had enough notice to gather and submit evidence in a timely fashion.284
As with Region I ALJs, the majority of Regions VII and VIII ALJs we interviewed also
expressed support for expansion of the 75-day notice requirement to other regions in order to
have national consistency in notice requirements and facilitate a more efficient adjudicatory
process.285 Most of these ALJs agreed that the additional time provided by 75 days’ notice of a
hearing date would promote better pre-hearing record development by claimants and
representatives. As one ALJ in Denver, CO observed, evidentiary records in those cases where
notice is provided at least 60 days in advance tend to be better developed than the records in
those cases where notice is provided only 30 or 45 days in advance.286 Similarly, an ALJ in
Kansas City, MO noted that giving claimants and their representatives as much notice as possible
helps provide needed time to develop the evidentiary record for a case.287
Support for expansion of the 75-day notice requirement among ALJs in Regions II-X was
not, however, absolute. A small minority of ALJs believed either that providing such advance
notice was problematic or unduly burdensome. Survey respondents in these regions who
suggested an alternative notice timeframe (via text box) recommended, on average, that notices
of hearing be issued 49 days before the hearing.288 For example, an ALJ surveyed in Region V
asserted: “The 75-day notice requirement is onerous and [would] make[] scheduling difficult.”289
A few ALJs surveyed also expressed concern that issuing notices 75 days before hearings might
lead claimants—particularly unrepresented claimants—to forget to show up for their hearings.
Some ALJs in Regions VII and VIII thought 75 days was excessive and would pose an undue
burden on SSA staff who schedule cases. As well, an ALJ in Sioux Falls, SD believed that
requiring 75 days’ notice would create difficulties in planning his hearing schedule and could
make scheduling vacations or work absences more difficult.290 A few ALJs we surveyed and
interviewed also expressed skepticism that implementation of a 75-day notice requirement would

283

See id.
See ALJ Feb. 4 VTC Interview, supra note 254.
285
See Multiple ALJ Feb. Interviews, supra note 253.
286
See Video teleconference interview with ALJ (Feb. 13, 2013) [hereinafter ALJ Feb. 13 VTC Interview]
(interview notes on file with authors).
287
See Video teleconference interview with ALJ (Feb.14, 2013) (interview notes on file with authors).
288
See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, Apps. E-3, Survey Response # 20, at A76; see also id. at E-4, Survey Response # 19, p. A-129 (Regions II – X HODs) (suggesting, on average, alternative
notice timeframe of 49 days prior to hearings).
289
See id. at App. E-3, Survey Response # 1, p. A-67.
290
See ALJ Feb. 13 VTC Interview, supra note 286.
284

46

lead to earlier submission of evidence. They believed that representatives would not use this
extra time to prepare their claimants’ case, but, instead, would procrastinate and still submit
evidence close to the hearing date.
Generally, hearing office staff members whom we interviewed in Regions I, VII, and
VIII voiced strong support for the 75-day notice requirement as well as its expansion to other
regions.291 Region I staff members supporting expansion of the notice requirement observed that
implementation of the requirement in their region has led to earlier submission of evidentiary
records, which, in turn, affords staff sufficient time to prepare records for review by ALJs and
other hearing office staff. Similarly, the majority of staff members interviewed in Regions VII
and VIII favored expanding the 75-day requirement to all regions. Many staff members in
Regions VII and VIII expressed hope that having such a requirement governing the issuance of
hearing notices would bring more consistency and efficiency to the hearing process across
regions. As with many ALJs, staff members also expressed the hope that, if claimants’
representatives received additional advance hearing notice, they would make greater efforts to
obtain and submit medical records earlier, thus making it easier for SSA staff to prepare and
review the case record prior to a hearing.
2. Current Practices Regarding Hearing Notices & Submission of Evidence
A critical aspect of assessing the impact of the Region I pilot program is identifying and
comparing the current notice of hearing and evidentiary submission practices in Region I with
those of other regions. An assessment of the pilot program would be incomplete without
discussion of how the program works in practice. This section of the report, therefore, sets forth
gives an overview of current practices based on surveys, interviews, and, to a lesser extent,
empirical analyses.
a. Current Practices in Region I
Through both interviews and survey responses from ALJs and hearing office staff in
Region I, we learned that, while the 75-day notice requirement is regularly followed by hearing
offices, implementation of the five-day rule varies throughout the region. These variations arise
for a variety of reasons, including: (1) claimants and representatives fail to timely submit
evidence; (2) when evidence is submitted less than five days before a hearing, some ALJs
nonetheless invariably allow late evidentiary submissions without inquiry; and (3) ALJs have
different perspectives on their discretion under the five-day rule, as well as circumstances
satisfying the “good cause” exception. Accordingly, even though views of the pilot program are
favorable throughout hearing offices in Region I, variations in implementation and application of
the pilot program—predominantly relating to the five-day rule—makes assessing the overall
“real-world” impact (or potential impact) of the pilot program particularly challenging.

291

See Multiple ALJ Feb. Interviews, supra note 253.
47

Notices of Hearing
Under the Region I pilot program, hearing offices are required to issue notices of hearing
at least 75 days before the hearing unless the claimant agrees to a shorter period.292 Our research
for this study—including empirical analyses, surveys, and interviews—consistently establishes
that Region I hearing offices in recent years have indeed been issuing hearing notices 75 days in
advance of hearings in the vast majority of cases. From an empirical perspective, as noted
above, Region I has experienced particularly pronounced increases in the average time interval
between issuance of hearing notices and hearings in recent years; indeed, in both CY 2011 and
CY 2012, the annual average time intervals (of 80.8 and 93.9 days respectively) in the region
exceeded the 75-day notice requirement’s default timeframe.293 This empirical finding is further
buttressed by survey results from Region I ALJs and HODs, the majority of whom reported that
their offices send notices out 75 days or more in advance of hearings.294 As Table 16 below
shows, only 7% of ALJs and 14% of HODs reported that their offices sent out notices less than
75 days before the hearing.
Table 16: Responses of Region I ALJs/HODs to Survey Question on Timing of Hearing Notices
In
  the
  past
  year,
  about
  how
  long
  before
  a
  hearing
  were
  notices
  of
  hearing
  typically
  sent
  by
  your
  office
  to

295
claimants?

  ALJs

  HODs

Response

Response

Answer
  Options

Percent

Percent

A)
  Less
  than
  75
  days
  before
  the
  hearing

7.4%

14.3%

B)
  75
  days
  before
  the
  hearing

44.4%

57.1%

C)
  90
  days
  before
  the
  hearing

25.9%

28.6%

D)
  120
  days
  before
  the
  hearing

3.7%

0.0%

E)
  More
  than
  120
  days
  before
  the
  hearing

3.7%

0.0%

F)
  Don’t
  know/Not
  sure

14.8%

0.0%

Similarly, when we met with Region I ALJs and hearing office staff, they indicated
consistent adherence to the 75-day notice requirement. Every Region I ALJ or hearing office
staff member stated that the current practice in their office is to send notices of hearing to
claimants and representatives (if any) at least 75 days in advance of the hearing date.296 Several
interviewees indicated that notices are sent out even earlier in certain Region I offices. For
example, ALJs in Portland, ME, Hartford, CT and Providence, RI noted that in many cases, their
offices mailed notices 90 days in advance of hearings.297

292

See 20 C.F.R. §§ 405.315(a), 405.316(a) (2012).
See discussion supra Pt. III.A.
294
See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, Apps. E-1, Survey Response # 3, at p. A35; E-2, Survey Response # 3, at p. A-55.
295
See id. at Apps. E-1, Survey Response # 3, at p. A-35 & E-2, Survey Response # 3, at p. A-55.
296
See In-person and video teleconference interviews with Region I ALJs and hearing office staff members (case
technicians, decision-writers, group supervisors, and hearing office directors) (Feb. 4-5, 2013) (interview notes on
file with authors).
297
See id.
293

48

A few ALJs with whom we spoke observed that their respective offices, in the past, may
have been less consistent in meeting the 75-day requirement. For example, one senior ALJ in
Hartford, CT stated that judges experienced an initial period of adjustment (since, prior to the
pilot program, offices only scheduled hearings 20 to 30 days in advance of hearings), but that the
majority of ALJs in her office were now used to scheduling their cases well in advance and, thus,
had no problem adhering to the 75-day requirement.298 Similarly, many Region I staff members
we interviewed noted that the 75-day notice requirement is now just considered the “norm” in
their offices; some even noted that their offices issue notices even earlier than required—up to 90
or 120 days before the hearing.
Submission of Evidence
Thus, while hearing offices in Region I appear to be consistently applying the 75-day
notice requirement, current practices under the five-day rule, on the other hand, reveal a sizeable
degree of variation—among claimants and/or representatives, as well as ALJs. As set forth
below in Tables 17 and 18, according to ALJs and HODs in Region I responding to the survey,
represented claimants consistently follow the five-day rule only about half of the time.299
Table 17: Responses of Region I ALJs to Survey Question on Timeliness of Evidence Submissions
Under Five-Day Rule
In
   your
   cases
   in
   the
   past
   year,
   about
   how
   often
   was
   all
   material
   written
   evidence
   timely
   submitted
   by

300
claimants—that
  is,
  five
  (5)
  business
  days
  or
  more
  before
  hearings?
Answer
  Options

Almost

Always

Frequently

Sometimes

Rarely

Almost

Never

Rating

Average

Response

Count

Represented
  Claimants

18.5%

37.0%

18.5%

25.9%

0.0%

3.48

27

Unrepresented
  Claimants

11.1%

7.4%

29.6%

33.3%

18.5%

2.59

27

Table 18: Responses of Region I HODs to Survey Question on Timeliness of Evidence Submissions
Under Five-Day Rule
In
  your
  office’s
  cases
  in
  the
  past
  year,
  about
  how
  often
  was
  all
  evidence
  timely
  submitted
  by
  claimants—that
  is,

301
five
  (5)
  business
  days
  or
  more
  before
  hearings?

  If
  you
  do
  not
  know,
  please
  select
  "N/A"

Answer
  Options

Represented
  Claimants

Unrepresented

Claimants

Almost

Always

Frequently

Sometimes

Rarely

Almost

Never

N/A

Rating

Average

Response

Count

14.3%

28.6%

42.9%

14.3%

0.0%

0.0%

3.43

7

0.0%

42.9%

28.6%

28.6%

0.0%

0.0%

3.14

7

298

See ALJ Feb. 5 VTC Interview, supra note 255.
See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, Apps. E-3, Survey Response #7, at p. A36; E-4, Survey Response #5, at p. A-56 (overall average of Region I ALJs and HODs reporting that represented
claimants “sometimes,” “rarely” or “never” submitted all material evidence at least five days before hearings equal
to 50.8%).
300
See id. at App. E-1, Survey Response # 7, p. A-36.
301
See id. at App. E-2, Survey Response # 5, p. A-56.
299

49

Understanding why representatives in Region I seek to submit evidence less than five
days before the hearing is also important to assessing how evidentiary submission practices
currently work. When surveyed, ALJs indicated that there are varying reasons offered by
claimants’ representatives who submit evidence late.302 However, one reason appears to be
offered more often than others. Indeed, more than 80% of Region I ALJs surveyed report that
representatives “almost always” or “frequently” state that they “recently received evidence from
a medical provider or other source” as the reason for submitting evidence less than five business
days before the hearing303 (see Table 19 below).
Table 19: Heat Map of Responses by Region I ALJs to Survey Question on Claimants’ Reasons For
Submission of Evidence Less Than Five Days Before Hearing
Listed
  below
  are
  some
  possible
  reasons
  why
  parties
  might
  seek
  to
  submit
  material
  written
  evidence
  less
  than

five
  (5)
  business
  days
  before
  a
  hearing.

  For
  each
  statement
  listed
  below,
  please
  indicate
  how
  frequently
  it
  was

used
   by
   CLAIMANTS'
   REPRESENTATIVES
   in
   the
   past
   year
   as
   a
   basis
   for
   seeking
   to
   submit
   material
   written

304
evidence
  less
  than
  five
  (5)
  business
  days
  before
  a
  hearing:

Answer
  Options

Did
  not
  know
  how
  to

submit
  evidence

Recently
  received

evidence
  from
  a

medical
  provider
  or

other
  source

Recently
  received

evidence
  from

claimant

Did
  not
  have
  enough

time
  to
  submit

evidence

An
  unusual
  or

avoidable

circumstance
  beyond

his/her
  control

SSA’s
  notice/actions

were
  misleading

Claimant’s
  physical,

mental,
  educational
  or

linguistic
  limitation

prevented

  timely

submission

No
  reason
  given

Almost

Always

Frequently

Sometimes

Rarely

Almost

Never

N/A

Rating

Average

Response

Count

0.0%

0.0%

3.7%

7.4%

70.4%

18.5%

1.18

27

18.5%

66.7%

14.8%

0.0%

0.0%

0.0%

4.04

27

3.7%

48.1%

29.6%

14.8%

3.7%

0.0%

3.33

27

0.0%

7.4%

25.9%

33.3%

29.6%

3.7%

2.12

27

0.0%

7.4%

29.6%

33.3%

29.6%

0.0%

2.15

27

0.0%

0.0%

0.0%

0.0%

70.4%

29.6%

1.00

27

0.0%

0.0%

22.2%

22.2%

44.4%

11.1%

1.75

27

0.0%

18.5%

18.5%

7.4%

40.7%

14.8%

2.17

27

(Note: “Heat map” above shows graphical distribution of survey response values by color-coding higher
response values with darker colors.)

302

See id. at App. E-1, Survey Response # 9, p. A-37.
See id.
304
Id. at App. E-1, Survey Response # 9, p. A-37.
303

50

Similarly, when asked about the reasons why claimants’ representatives seek to submit
evidence after a hearing has concluded, Region I ALJs’ responses varied. However, again,
“recently received evidence from a medical provider or other source” was the most frequently
cited reason305 (see Table 20 below).
Table 20: Responses by Region I ALJs to Survey Question on Claimants’ Representatives Reasons
For Submission of Evidence Less Than Five Days Before Hearing
Listed
  below
  are
  some
  possible
  reasons
  why
  parties
  might
  seek
  to
  submit
  material
  written
  evidence
  after
  a

hearing
  has
  concluded.

  For
  each
  statement
  listed
  below,
  please
  indicate
  how
  frequently
  it
  was
  used
  by

CLAIMANTS'
  REPRESENTATIVES
  in
  the
  past
  year
  as
  a
  basis
  for
  seeking
  to
  submit
  material
  written
  evidence
  after

306
a
  hearing
  had
  concluded:

Answer
  Options

Did
  not
  know
  how
  to

submit
  evidence

Recently
  received

evidence
  from
  a

medical
  provider
  or

other
  source

Recently
  received

evidence
  from

claimant

Did
  not
  have
  enough

time
  to
  submit

evidence

An
  unusual
  or

avoidable

circumstance
  beyond

his/her
  control

SSA’s
  notice/actions

were
  misleading

Claimant’s
  physical,

mental,
  educational
  or

linguistic
  limitation

prevented
  timely

submission

No
  reason
  given

Almost

Always

Frequently

Sometimes

Rarely

Almost

Never

N/A

Rating

Average

Response

Count

0.0%

0.0%

0.0%

3.8%

69.2%

26.9%

1.05

26

3.8%

50.0%

19.2%

11.5%

11.5%

3.8%

3.24

26

0.0%

26.9%

30.8%

7.7%

30.8%

3.8%

2.56

26

0.0%

3.8%

23.1%

19.2%

42.3%

11.5%

1.87

26

0.0%

7.7%

38.5%

11.5%

38.5%

3.8%

2.16

26

0.0%

0.0%

0.0%

11.5%

61.5%

26.9%

1.16

26

0.0%

3.8%

7.7%

23.1%

53.8%

11.5%

1.57

26

11.5%

3.8%

7.7%

7.7%

42.3%

26.9%

2.11

26

(Note: “Heat map” above shows graphical distribution of survey response values by color-coding higher
response values with darker colors.)

Region I ALJ survey responses regarding reasons why unrepresented claimants seek to
submit evidence shortly before, at, or after a hearing vary, with many reporting the unrepresented

305
306

See id. at App. E-1, Survey Response # 17, p. A-40.
Id. at App. E-1, Survey Response # 17, p. A-40.
51

claimants “almost always” or “frequently” state that they were: (1) “not aware of the submission
deadline;” (2) “recently received evidence from a medical provider or other source;” or (3) “did
not know how to submit evidence” as reasons why they failed to timely submit evidence.307
Notably, a sizable percentage of ALJs reported that unrepresented claimants “almost always” or
“frequently” offer no reason for seeking to submit evidence shortly before, at, or after a
hearing.308 Tables 21 and 22 below illustrate the varying reasons provided by unrepresented
claimants for submitting evidence less than five days before, at, or after a hearing.
Table 21: Heat Map of Responses by Region I ALJs to Survey Question on Unrepresented
Claimants’ Reasons For Submission of Evidence Less Than Five Days Before Hearing
Question
  to
  Region
  I
  ALJs:

  Listed
  below
  are
  some
  possible
  reasons
  why
  parties
  might
  seek
  to
  submit
  material

written
  evidence
  less
  than
  five
  (5)
  business
  days
  before
  a
  hearing.

  For
  each
  statement
  listed
  below,
  please

indicate
  how
  frequently
  it
  was
  used
  by
  UNREPRESENTED
  CLAIMANTS
  in
  the
  past
  year
  as
  a
  basis
  for
  submitting

309
material
  written
  evidence
  less
  than
  five
  (5)
  business
  days
  before
  a
  hearing:
Answer
  Options

Did
  not
  know
  how
  to

submit
  evidence

Recently
  received

evidence
  from
  a

medical
  provider
  or

other
  source

Did
  not
  have
  enough

time
  to
  submit

evidence

A
  physical,
  mental,

educational
  or

linguistic
  limitation

prevented
  him/her

from
  timely

submitting
  evidence

An
  unusual
  or

avoidable

circumstance
  beyond

his/her
  control

SSA’s
  notice/actions

were
  misleading

Was
  not
  aware
  of

submission
  deadline

No
  reason
  given

Almost

Always

Frequently

Sometimes

Rarely

Almost

Never

N/A

Rating

Average

Response

Count

7.7%

23.1%

19.2%

11.5%

23.1%

15.4%

2.77

26

3.8%

38.5%

23.1%

3.8%

15.4%

15.4%

3.14

26

3.8%

0.0%

26.9%

26.9%

30.8%

11.5%

2.09

26

0.0%

11.5%

26.9%

19.2%

26.9%

15.4%

2.27

26

0.0%

3.8%

38.5%

15.4%

26.9%

15.4%

2.23

26

0.0%

0.0%

19.2%

23.1%

38.5%

19.2%

1.76

26

7.7%

34.6%

11.5%

11.5%

23.1%

11.5%

2.91

26

3.8%

19.2%

23.1%

7.7%

26.9%

19.2%

2.57

26

(Note: “Heat map” above shows graphical distribution of survey response values by color-coding higher
response values with darker colors.)

307

See id. at Apps. E-1, Survey Response # 12, p. A-38; E-1, Survey Response # 20, p. A-41.
See id. at Apps. E-1, Survey Response # 12, p. A-38; E-1, Survey Response # 20, p. A-41.
309
See id. at App. E-1, Survey Response # 12, p. A-38.
308

52

Table 22: Heat Map of Responses by Region I ALJs to Survey Question on Unrepresented
Claimants’ Reasons for Submission of Evidence After the Hearing
Listed
  below
  are
  some
  possible
  reasons
  why
  parties
  might
  seek
  to
  submit
  material
  written
  evidence
  after
  a

hearing
  has
  concluded.

  For
  each
  statement
  listed
  below,
  please
  indicate
  how
  frequently
  it
  was
  used
  by

UNREPRESENTED
  CLAIMANTS
  in
  the
  past
  year
  as
  a
  basis
  for
  submitting
  material
  written
  evidence
  after
  a
  hearing

310
had
  concluded:

Answer
  Options

Did
  not
  know
  how
  to

submit
  evidence

Recently
  received

evidence
  from
  a

medical
  provider
  or

other
  source

Did
  not
  have
  enough

time
  to
  submit

evidence

A
  physical,
  mental,

educational
  or

linguistic
  limitation

prevented
  him/her

from
  timely

submitting
  evidence

An
  unusual
  or

avoidable

circumstance
  beyond

his/her
  control

SSA’s
  notice/actions

were
  misleading

Was
  not
  aware
  of

submission
  deadline

No
  reason
  given

Almost

Always

Frequently

Sometimes

Rarely

Almost

Never

N/A

Rating

Average

Response

Count

3.8%

23.1%

15.4%

11.5%

26.9%

19.2%

2.57

26

3.8%

34.6%

26.9%

7.7%

15.4%

11.5%

3.04

26

0.0%

3.8%

30.8%

19.2%

30.8%

15.4%

2.09

26

0.0%

11.5%

26.9%

15.4%

30.8%

15.4%

2.23

26

0.0%

0.0%

34.6%

15.4%

30.8%

19.2%

2.05

26

0.0%

3.8%

7.7%

19.2%

38.5%

30.8%

1.67

26

7.7%

30.8%

11.5%

11.5%

19.2%

19.2%

2.95

26

7.7%

7.7%

15.4%

7.7%

42.3%

19.2%

2.14

26

(Note: “Heat map” above shows graphical distribution of survey response values by color-coding higher
response values with darker colors.)

Another key to assessing how the five-day rule affects evidentiary submission practices
in Region I is the extent to which good cause exceptions are requested—and granted—as a
means to admit late evidence that would otherwise have been excluded. Region I ALJs’ survey
responses indicate that about 55% of the time represented claimants “almost always” or
“frequently” seek to have untimely evidence admitted less than five days before hearings, and
ALJs “almost always” or “frequently” grant such requests at about a 65% rate.311 For
unrepresented claimants, both the good-cause based request and grant rates in the period less
than five days before the hearing were even higher.312

310

See id. at App. E-1, Survey Response # 20, p. A-41.
See id. at App. E-1, Survey Response # 8, p. A-37.
312
See id. at Apps. E-1, Survey Response # 8, p. A-37; E-1, Survey Response # 15, p. A-39.
311

53

In contrast, fewer Region I ALJs (50%) reported that they “almost always” or
“frequently” grant requests by claimants’ representatives to submit evidence after the hearing
has concluded and similarly, only 72% reported the same when such requests are made by
unrepresented claimants.313 When ALJs grant requests to submit evidence after the hearing, they
give claimants and/or representatives a designated amount of time to submit additional evidence.
Region I ALJs reported giving varying timeframes for the submission of evidence after the
hearing. Indeed, some ALJs give less than one week and others give more than one month.314
The largest percentage of ALJs reported that they give both represented and unrepresented
claimants two weeks to submit the evidence when they grant requests under the five-day rule’s
good cause exception315 (see Table 23 below).
Table 23: Responses by Region I ALJs to Survey Question on Amount of Time Granted for
Submission of Additional Evidence Under Good Cause Exception
Question
  to
  Region
  I
  ALJs:

  When
  you
  granted
  requests
  from
  claimants
  or
  their
  representatives
  to
  submit

additional
  written
  evidence
  after
  the
  close
  of
  hearings
  under
  the
  good
  cause/materiality
  exception,
  about
  how

316
much
  time
  did
  you
  typically
  give
  claimants
  or
  their
  representatives
  to
  submit
  additional
  written
  evidence?

Less

More

2

3

Rating
   Response

Answer
  Options

than
  1
   1

  Week

than
  3

Weeks

Weeks

Average

Count

Week

Weeks

Represented
  Claimants

4.5%

13.6%

68.2%

4.5%

9.1%

3.00

22

Unrepresented
  Claimants

0.0%

9.1%

36.4%

22.7%

31.8%

2.23

22

In many (though not all) respects, interviews with Region I ALJs echoed the foregoing
survey results showing variation in evidentiary submission practices under the five-day rule. The
majority of ALJs interviewed noted that, in hearing their offices (1) representatives often failed
to timely submit evidence, and (2) judges frequently admitted late evidentiary submissions
without inquiry as to whether such evidence fell within one of the good cause exceptions. Yet,
on the other hand, other Region I ALJs whom we interviewed stated that the five-day rule was
indeed applied in their offices—namely, that representatives regularly submitted evidence in a
timely fashion, and, when they did not, judges admitted late evidence only when it met a good
cause exception.
Interviews in Region I also revealed that not only did current practices vary across
hearing offices, but also, on occasion, even within particular hearing offices.317 For example, in
Boston, we interviewed one senior ALJ holding a leadership position in Region I, who said that
“[t]he rule is on the books and claimants’ representatives are aware of it so I believe they do
regularly adhere to it.”318 This ALJ stated her belief that, among Region I ALJs, the general
consensus is that the five-day rule works well and that representatives regularly submit evidence

313

See id. at App. E-1, Survey Response # 24, p. A-42.
See id. at App. E-1, Survey Response # 25, p. A-42.
315
See id.
316
Id.
317
See In-person, video teleconference, and telephone interviews with Region I ALJs (Feb. 4-5, 2013) [hereinafter
Multiple Region I ALJ Feb. Interviews] (interview notes on file with authors).
318
See ALJ Feb. 4 Interview, supra note 262.
314

54

five or more days before the hearing.319 Other ALJs in the same hearing office expressed a
different view. One ALJ in Boston, MA admitted that “[m]any judges in Region I review
evidence submitted after the record closes anyway, although there are a few judges who enforce
the five-day rule and exclude evidence unless it is relevant and falls under a good cause
exception.”320 Another ALJ in Boston, MA agreed, noting that ALJs in his office need to do a
better job of enforcing the five-day rule by encouraging timely evidentiary submissions and by
admitting evidence submitted late only if it meets a good cause exception. “If we do not enforce
the rule aggressively, then we cannot expect representatives to adhere to it,” he said.321
Region I ALJs in other offices also spoke about varied practices under the rule and many
we interviewed expressed frustration with the fact that claimants’ representatives still submit
evidence late (i.e., shortly before, on the day of, or after a hearing), despite the fact that the fiveday rule has been effect throughout the region for more than five years.322 For example, an ALJ
in Manchester, NH asserted that ALJs in his office regularly admit untimely evidence without
examining whether such evidence falls under a good cause exception.323 Another ALJ in
Lawrenceville, MA noted that, in his office, many representatives do not currently follow the
five-day rule and regularly submit untimely evidence.324 He stated that the agency needs to
better enforce the rule by admitting untimely evidence only if it falls under a good cause
exception in order to ensure that people follow it.325
Additionally, a number of ALJs with whom we spoke expressed concern about the ways
in which untimely evidence affected cases and processing times. A number of ALJs noted that,
when the record requires further development after the hearing, they must put the case into posthearing status.326 One ALJ who works in Boston, MA stated that putting cases into post-hearing
status undermined adjudicatory efficiency.327 This ALJ also noted that, although cases typically
stay in such status for less than 30 days, the fact that so many cases have to be put into posthearing status is problematic and shows that the five-day rule is not being followed with
consistency.328 The ALJ stated that accordingly, judges are unable to properly consider evidence
prior to the hearing as the rule intends for them to do.329 Another ALJ—in Portland, ME—noted
that when late evidentiary submissions occur, he may have to schedule a supplemental hearing

319

See id.
See ALJ Feb. 5 Interview, supra note 261.
321
See ALJ Feb. 4 Interview, supra note 262.
322
See Multiple Region I ALJ Feb. Interviews, supra note 309.
323
See ALJ Feb. 4 VTC Interview, supra note 254.
324
See ALJ Feb. 5 VTC Interview, supra note 255.
325
See id.
326
See id. Also note that although some at SSA have argued that having a five-day rule should lead to less Region I
cases being put into post-hearing status because the rule encourages timely submission of evidence before the
hearing, thereby reducing the number of cases that need be developed after the hearing while awaiting the
submission of additional evidence after the hearing, this argument has not been supported by the agency-provided
data available. As discussed supra Pt. III.A, there is no real difference in the amount of cases that have post-hearing
status in Region I than in comparable Regions VII and VIII. Admittedly, the mere fact that the data do not show a
difference in the number of cases being put into post-hearing status is inconclusive. The lack of a difference may be
attributable, at least in part, to the fact that the five-day rule is not being enforced consistently in Region I. For a
summary of the agency-provided data and an empirical analysis of that data see supra Part III.A.
327
See ALJ Feb. 5 Interview, supra note 261.
328
See id.
329
Id.
320

55

after the evidence has been submitted in order to further consider a case. He stated that
scheduling supplemental hearings can often lead to delay in issuing a decision.330 Some ALJs
we interviewed also expressed concern that, in their view, some representatives—despite the
five-day rule—intentionally withhold evidence at the hearing level in order to present it for the
first time when the case is on appeal. For example, one ALJ in Lawrenceville, MA stated that he
has not personally witnessed any intentional withholding of evidence in his cases, but has heard
from other ALJs that this occasionally happens.331
Yet, while many Region I ALJs voiced concerns about consistent application (and
compliance with) the five day rule, other judges with whom we spoke stated that the five-day
rule was indeed applied with regularity in their offices—namely, that representatives regularly
submitted evidence in a timely fashion, and, when they did not, judges admitted late evidence
only when it met a good cause exception.332 For example, one ALJ in Portland, ME noted that
she does not admit untimely evidence into the record unless it meets a good cause exception, and
that representatives who appear before her generally submit evidence in a timely manner.333
However, the judge also noted that when representatives submit evidence late, she gives them a
stern warning while generally admitting such evidence under a good cause exception.334 Another
judge in Portland, ME agreed, commenting that representatives in that community regularly
follow the five-day rule by submitting evidence timely.335 One ALJ in Hartford, CT recounted
that, since the five-day rule has been in effect, more representatives who appear before him have
submitted evidence in a timely fashion.336 As well, an ALJ in Providence, RI noted that
representatives in his office “begrudgingly” make timely evidentiary submissions under the fiveday rule.337 He noted that ALJs often have to cajole and threaten representatives to get them to
submit evidence in a timely manner.338 This ALJ also noted that until recently, judges in his
office were reluctant to enforce the rule to exclude late evidentiary submissions that also do not
meet one of the good cause exceptions largely because they felt it would unfairly disadvantage
the claimant.339 However, starting in January 2013, judges in the Providence, RI hearing office
began regularly applying the rule and excluding late evidence unless it met a good cause
exception.340 Because hearing office practice had been inconsistent up until this point, the
Providence, RI office now makes it a priority to try to get claimants and their representatives to
timely submit evidence under the rule by informing representatives in the area that the office will
regularly enforce the rule and by posting a notice about the rule in the office.341 Those ALJs
who reported enforcing the rule, also believed that the five-day rule has reduced the intentional
withholding of evidence, to the extent it was previously being done. As one ALJ in Portland,
ME explained: “Closing the record has cut down on the withholding of records by

330

See ALJ Feb. 4 VTC Interview, supra note 254.
See id.
332
See Multiple Region I ALJ Feb. Interviews, supra note 309.
333
See ALJ Feb. 5 VTC Interview, supra note 255.
334
See id.
335
See id.
336
See ALJ Feb. 4 VTC Interview, supra note 254.
337
See ALJ Feb. 5 VTC Interview, supra note 255.
338
See id.
339
Id.
340
Id.
341
Id.
331

56

representatives who want to game the system so they can get a second chance at having their
case reviewed on appeal.”342
The majority of ALJs we interviewed about current practices were from offices in Region
I. However, we also interviewed ALJs at the National Hearing Center (“NHC”), who bring a
unique perspective to understanding enforcement of, and adherence to, the five-day rule. These
ALJs hear and adjudicate claims in Region I, where the five-day rule exists, as well as in other
regions, where there is no five-day rule. One ALJ in a senior leadership position at the NHC
noted that in the Region I cases she hears, disallowing untimely evidence can be difficult to do
because sometimes, despite a representative’s best efforts, he or she just cannot obtain evidence
from the claimant or medical provider prior to the hearing.343 Other ALJs at the NHC stated that
they do require evidence to be submitted five or more days before the hearing in the Region I
cases that they hear, but most acknowledged that they also typically apply a good cause
exception under the rule to admit any relevant evidence.344
Finally, hearing office staff in Region I—as with most ALJs—reported during interviews
that there were inter-regional variations in evidentiary submission practices under the five-day
rule.345 Some staff members noted that representatives in Region I regularly submit untimely
evidence and shared feelings of frustration with receiving late evidence shortly before or after a
hearing. However, other staff reported that, since the five-day rule has been in effect, there has
been a decline in the number of problems they encounter when handling evidentiary records.
They reported (1) a reduction in the amount of duplicative evidence submitted, and (2) a
decrease in the submissions of evidence shortly before, at, or after a hearing.
b. Current Practices in Regions II – X
In assessing the impact of the Region I pilot program, it is also important to examine
current practices regarding notices of hearing and the submission of evidence in the other SSA
regions (i.e., Regions II-X). Since the majority of ALJs and hearing office staff members in
Regions II-X support the pilot program and favor expansion of the 75-day notice requirement
and the five-day rule,346 identifying current practices in these regions may be important to
understanding the support for expansion of the program nationwide. A summary of the current
practices in Regions II-X is set forth below.
Notices of Hearing
Current regulations in Regions II-X mandate that, absent written waiver by a claimant,
notices of hearing must be issued not less than 20 days before the hearing date.347 In practice,

342

See id.
See In-person interview with ALJ (Feb. 12, 2013) (interview notes on file with authors).
344
See id.
345
See In-person and video teleconference interviews with Region I hearing office staff members (case technicians,
decision writers, group supervisors and hearing office directors) (Feb. 4-5, 2013) (interview notes on file with
authors). All information in this section was provided in these interviews.
346
For a discussion of perspectives showing that a majority of ALJs and hearing office staff members support the
Region I pilot program, see supra Pt. III.B.1.
347
See 20 C.F.R. §§ 404.938, 416.1438 (2012).
343

57

however, hearing offices in these regions typically issue notices of hearing well in advance of
this 20-day timeframe. Since 2005, the average time interval between notice and hearing date
has risen substantially across all regions (albeit at a slower pace than Region I which, during this
period, has had the 75-day notice requirement in effect).348 Notably, in 2011 and 2012, the
national average for the time interval between notice and hearing was 70 and 79 days
respectively.349 Nonetheless, survey and interview responses from Regions II-X show that there
is a wide variation in notice of hearing practices across these regions. As set forth in Table 24
below, the majority of Regions II-X ALJs and HODs reported that their office issues notices 45
to 60 days in advance of a hearing.350 However, notable exceptions exist outside this majority
practice. Sizeable percentages of hearing offices are reported as issuing notices 30 or 90 days
before the hearing. Moreover, a few hearing offices are said to be issuing notices on the far
extremes of the hearing notice timeframe—that is, less than 30 days and more than 120 days
before hearing dates.
Table 24: Responses of Regions II-X ALJs/HODs to Survey Questions on Timing of Hearing
Notices
In
  the
  past
  year,
  about
  how
  long
  before
  a
  hearing
  were
  notices
  of
  hearing
  typically
  sent
  by
  your
  office

351
to
  claimants?

Answer
  Options

  ALJs

  HODs

A)
  Less
  than
  30
  days
  before
  the
  hearing

B)
  30
  days
  before
  the
  hearing

C)
  45
  days
  before
  the
  hearing

D)
  60
  days
  before
  the
  hearing

E)
  90
  days
  before
  the
  hearing

F)
  120
  days
  before
  the
  hearing

G)
  More
  than
  120
  days
  before
  the
  hearing

H)
  Don’t
  Know/Not
  Sure

5.1%

14.9%

20.2%

26.2%

11.3%

1.0%

1.1%

20.2%

1.6%

21.1%

23.6%

35.8%

15.4%

1.6%

0.8%

0.0%

Interviews with ALJs and staff in Regions VII and VIII underscored this variability in
notice of hearing practices.352 Interviewees in these regions reported that practices relating to
issuance of hearing notices vary depending on the office, with notices going out anywhere from
20 to 120 days in advance of the hearing date. In addition, some ALJs and staff members
reported that the hearing notice practices may vary within the same office. For instance, one
ALJ in Fargo, ND explained that notices in her office are sent out between 30 and 60 days before
the hearing depending on the office’s caseload and ALJ availability.353

348

See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, App. D, tbl. A-12 & fig. A-18; see also
discussion supra Pt. III.A.
349
Id.
350
See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, Apps. E-2, Survey Response # 3, at p. A55; E-4, Survey Response # 3, at p. A-122.
351
See id. at Apps. E-2, Survey Response # 3, at p. A-55; E-4, Survey Response # 3, at p. A-122.
352
Video teleconference and telephone interviews with Region VII and VIII ALJs and hearing office staff members
(case technicians, decision writers, group supervisors and hearing office directors) (Feb. 13-14, 2013) (interview
notes on file with authors).
353
See Video teleconference interview with ALJ (Feb. 12, 2013) (interview notes on file with authors).
58

Submission of Evidence
In Regions II-X, where there is no pilot program in force, our research found that
claimants and representatives are much more likely to submit evidence later in the adjudication
process. Across all regions, on average, the bulk of documents submitted in the 30-day period
leading up to the hearing (or at or after the hearing), are submitted in the narrow window of time
within five or less days before the hearing, at the hearing, or after the hearing.354 This empirical
finding is further buttressed by survey results from ALJs and HODs in Regions II-X. As set
forth in Tables 26 and 27 below, survey respondents reported that, with respect to both
represented claimants and unrepresented claimants, it is relatively rare for evidence to be
submitted five days or more before the hearing. For example, only 20.5% of ALJs reported that,
over the course of the past year, represented claimants “almost always” or “frequently” submit
evidence at least five days prior to hearings. To put this figure in perspective, relative to survey
results from ALJs in Region I, represented claimants in Regions II-X are about 63% less likely to
consistently submit evidence five days or more before hearings.355
Table 25: Responses by Regions II-X ALJs to Survey Question on Frequency of Claimants’
Submission of All Material Evidence Five Days Before Hearing
In
  your
  cases
  in
  the
  past
  year,
  about
  how
  often
  was
  all
  material
  written
  evidence
  submitted
  by
  claimants
  at
  least

356
five
  (5)
  business
  days
  before
  the
  hearing?

Answer
  Options

Almost

Always

Frequently

Sometimes

Rarely

Almost

Never

Rating

Average

Response

Count

Represented
  Claimants

3.7%

16.8%

34.7%

27.9%

16.9%

2.62

703

Unrepresented
  Claimants

2.6%

9.0%

18.6%

27.9%

42.0%

2.02

703

Table 26: Responses by Regions II-X HODs to Survey Question on Frequency of Claimants’
Submission of All Material Evidence Five Days Before Hearing
In
  your
  cases
  in
  the
  past
  year,
  about
  how
  often
  was
  all
  material
  written
  evidence
  submitted
  by
  claimants
  at
  least

357
five
  (5)
  business
  days
  before
  the
  hearing?

Answer
  Options

Almost

Always

Frequently

Sometimes

Rarely

Almost

Never

Rating

Average

Response

Count

Represented
  Claimants

8.1%

27.6%

36.6%

16.2%

8.1%

3.12

123

Unrepresented
  Claimants

4.9%

16.2%

38.2%

22.8%

8.9%

2.84

123

354

See APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at App. D, tbl. A-11, figs. A-15, A-16 &
A-17, pp. A-27 to A-29. As noted previously, see discussion supra Pt. III.A, Region I’s profile concerning the
volume and timing of evidentiary submissions varies considerably from the national average, with a greater
percentage of documents submitted farther in advance of the hearing date.
355
This figure was obtained by comparing the percentage of ALJs in Region I and Regions II-X respectively who
reported in survey responses that represented claimants “almost always” or “frequently” submit evidence five days
or more before hearings. Compare APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, Apps. E-1,
Survey Response # 7, at p. A-36 with id. at App. E-3, Survey Response # 5, at p. A-56.
356
See id. at App. E-3, Survey Response # 7, p. A-68.
357
See id. at App. E-4, Survey Response # 5, p. A-123.
59

These survey results thus demonstrate that in Regions II-X—where there is no five-day
rule—evidence submission occurs closer to the hearing (or later). Indeed, a number of ALJs in
these regions expressed frustration with late submissions of evidence. One ALJ from Region III
noted his frustration in these terms: “Problems with late submission of evidence [are] the number
one factor preventing me from doing a better job adjudicating and moving cases in a timely
manner.”358 Another ALJ commented: “[L]ate submission of evidence is a constant problem
[and it creates] inefficiencies in the hearing process.”359 And, lastly, as one ALJ from Region IX
put it: “Not closing the record prior to the hearing creates a chaotic process.”360
There are many reasons why representatives might submit evidence shortly before or at a
hearing. When surveyed, ALJs in Regions II-X reported a number of different explanations from
representatives why they were submitting evidence less than five days before the hearing.361 As
shown in Table 27, a top reason was “recently received evidence from a medical provider or
other source,” which mirrors the survey responses of ALJs in Region I.362 Other reasons offered
by representatives, along with their relative frequencies, are shown in Table 27 below. Notably,
49% of ALJs reported that representatives “almost always” or “frequently” submit evidence less
than five days before the hearing without giving any reason363—a frequency that is nearly twice
as high as the “no reason given” percentage reported by ALJs in Region I.364
Table 27: Heat Map of Responses by Regions II-X ALJs to Survey Question on Reasons by
Claimants’ Representatives for Submission of Evidence Less Than Five Days Before Hearing
Question
  to
  Region
  II-‐X
  ALJs:

  Listed
  below
  are
  some
  possible
  reasons
  for
  submitting
  material
  written
  evidence

less
  than
  five
  (5)
  business
  days
  before
  a
  hearing.

  For
  each
  statement
  listed
  below,
  please
  indicate
  how

frequently
  it
  was
  used
  by
  CLAIMANTS’
  REPRESENTATIVES
  in
  the
  past
  year
  as
  a
  basis
  for
  submitting
  material

365
written
  evidence
  less
  than
  five
  (5)
  business
  days
  before
  a
  hearing:
Answer
  Options

Did
  not
  know
  how
  to

submit
  evidence

Recently
  received

evidence
  from
  a

medical
  provider
  or

other
  source

Recently
  received

evidence
  from

Almost

Always

Frequently

Sometimes

Rarely

Almost

Never

N/A

Rating

Average

Response

Count

0.4%

0.7%

1.3%

7.4%

68.5%

21.6%

1.18

699

24.5%

55.1%

17.0%

2.0%

1.1%

0.3%

4.00

699

13.4%

43.9%

29.9%

7.9%

4.1%

0.7%

3.55

699

358

See id. at App. E-3, Survey Response # 27-114, p. A-92.
See id. at App. E-3, Survey Response # 27-218, p. A-107.
360
See id. at App. E-1, Survey Response # 27-142, p. A-98.
361
For survey responses from ALJs in Regions II-X concerning the reasons given by represented claimants for posthearing evidentiary submissions, see id. at App. E-3, Survey Response # 15, p. A-71. Reasons given by
representatives for submission of evidence less than five days before hearings, as compared to post-hearing, are
largely similar.
362
See id. at App. E-3, Survey Response # 11, pp. A-69 & A-70; see also App. E-1, Survey Response # 9, at A-37.
363
See id. at App. E-3, Survey Response # 11, pp. A-69 & A-70.
364
See id. at App. E-1, Survey Response # 17, p. A-40.
365
See id. at App. E-3, Survey Response # 11, pp. A-69 & A-70.
359

60

Question
  to
  Region
  II-‐X
  ALJs:

  Listed
  below
  are
  some
  possible
  reasons
  for
  submitting
  material
  written
  evidence

less
  than
  five
  (5)
  business
  days
  before
  a
  hearing.

  For
  each
  statement
  listed
  below,
  please
  indicate
  how

frequently
  it
  was
  used
  by
  CLAIMANTS’
  REPRESENTATIVES
  in
  the
  past
  year
  as
  a
  basis
  for
  submitting
  material

365
written
  evidence
  less
  than
  five
  (5)
  business
  days
  before
  a
  hearing:
claimant

Did
  not
  have
  enough

time
  to
  submit

evidence

An
  unusual
  or

avoidable

circumstance
  beyond

his/her
  control

SSA’s
  notice/actions

were
  misleading

Claimant’s
  physical,

mental,
  educational
  or

linguistic
  limitation

prevented

  timely

submission

No
  reason
  given

Other/Not
  listed

above

2.4%

8.3%

18.6%

24.3%

39.9%

6.4%

2.03

699

2.1%

8.9%

19.5%

27.5%

37.2%

4.9%

2.07

699

0.1%

0.1%

0.7%

3.9%

67.2%

27.9%

1.09

699

0.3%

0.7%

8.4%

18.9%

58.9%

12.7%

1.45

699

13.4%

36.3%

22.2%

8.7%

13.0%

6.3%

3.30

699

2.7%

5.7%

10.0%

5.0%

16.9%

59.7%

2.32

699

(Note: “Heat map” above shows graphical distribution of survey response values by color-coding higher
response values with darker colors.)

Survey responses from ALJs in Regions II-X relating to unrepresented claimants’
explanations for submission of evidence close to the hearing (i.e., less than five days) largely
track those for represented claimants, with two notable exceptions. Table 28 below sets forth the
ALJs’ survey responses for why unrepresented claimants submit evidence shortly before
hearings. As with represented claimants, ALJs report that the top reason given by unrepresented
claimants for submission of evidence later in the adjudicatory process is that they “recently
received evidence from a medical provider or other source.”366 Unrepresented claimants,
however, are more likely to state that they “did not know how to submit evidence” or were ““not
aware of the submission deadline” as compared to represented parties.367

366

See id. at App. E-3, Survey Response # 12, p. A-70. For survey responses from ALJs in Regions II-X concerning
unrepresented claimants’ explanations for post-hearing evidentiary submissions, see id. at App. E-3, Survey
Response # 16, p. A-72. Reasons given by unrepresented claimants for submission of evidence less than five days
before the hearing and after the hearing are largely similar.
367
Id.
61

Table 28: Heat Map of Responses by Regions II-X ALJs to Survey Question on Reasons by
Unrepresented Claimants for Submission of Evidence Less Than Five Days Before Hearing
Listed
  below
  are
  some
  possible
  reasons
  for
  submitting
  material
  written
  evidence
  less
  than
  five
  (5)
  business
  days

before
  a
  hearing.

  For
  each
  statement
  listed
  below,
  please
  indicate
  how
  frequently
  it
  was
  used
  by

UNREPRESENTED
  CLAIMANTS
  in
  the
  past
  year
  as
  a
  basis
  for
  submitting
  material
  written
  evidence
  less
  than
  five

368
(5)
  business
  days
  before
  a
  hearing:
Answer
  Options

Did
  not
  know
  how
  to

submit
  evidence

Recently
  received

evidence
  from
  a

medical
  provider
  or

other
  source

Did
  not
  have
  enough

time
  to
  submit

evidence

A
  physical,
  mental,

educational
  or

linguistic
  limitation

prevented
  him/her

from
  timely

submitting
  evidence

An
  unusual
  or

avoidable

circumstance
  beyond

his/her
  control

SSA’s
  notice/actions

were
  misleading

Was
  not
  aware
  of

submission
  deadline

No
  reason
  given

Other/Not
  listed

above

Almost

Always

Frequently

Sometimes

Rarely

Almost

Never

N/A

Rating

Average

Response

Count

10.4%

23.1%

29.3%

6.7%

20.5%

10.0%

2.96

689

5.7%

29.0%

35.0%

11.3%

13.1%

6.0%

3.03

689

1.3%

8.3%

16.0%

20.2%

39.9%

14.4%

1.96

689

1.0%

6.1%

21.6%

21.3%

37.4%

12.5%

1.99

689

1.6%

6.1%

19.2%

21.2%

39.3%

12.6%

1.96

689

0.6%

2.8%

6.8%

14.5%

52.2%

23.1%

1.50

689

10.6%

15.8%

17.0%

9.3%

27.6%

19.7%

2.66

689

24.2%

35.0%

18.3%

3.8%

10.9%

7.8%

3.63

689

4.1%

6.0%

7.4%

5.4%

17.1%

60.1%

2.36

689

(Note: “Heat map” above shows graphical distribution of survey response values by color-coding higher
response values with darker colors.)

Interview responses from ALJs and hearing office staff in Regions II-X also show that
there are variations in current evidentiary submission practices in these regions. The majority of
ALJs and staff that we interviewed in these regions reported that, since they do not have any
existing requirements similar to the five-day rule, both represented and unrepresented claimants
submit evidence at varying stages of the process, including before the hearing, on the day of the
hearing, during the hearing, or after the hearing.369 Many ALJs we interviewed noted that

368

See id. at App. E-3, Survey Response # 12, p. A-70.
See Video teleconference and telephone interviews with Region VII and VIII ALJs and hearing office staff (case
technicians, decision writers, group supervisors and hearing office directors) (Feb. 13-14, 2013) (interview notes on
file with authors).
369

62

evidence submitted shortly before, at, or after a hearing can cause delays in the hearing process
because they may have to reschedule hearings, schedule supplemental hearings to review
additional evidence, and/or schedule consultative examinations to further develop the record.370
ALJs also noted that untimely submission of evidence places additional burdens on their
workloads and schedules.371 Additionally, ALJs and staff members asserted that late evidence
submissions unfairly burden hearing office staff because they then have to compile the
evidentiary records at the last minute or sort through duplicative evidence.372
c. Current Practices Regarding Obtaining Medical Records
As evidenced in the survey and interview responses collected for this report, medical
records are at the heart of Social Security disability claims. Indeed, the timely collection and
submission of relevant medical evidence from providers, such as physicians and psychologists,
are key to the SSA process for deciding whether claimants have impairments that qualify them to
receive disability benefits. Accordingly, evaluating the ability to timely obtain medical records
is critical in assessing the impact of SSA’s Region I pilot program. This section sets forth both
obstacles to obtaining medical records, as well as some of the technological advances which may
address these challenges.
Issues with Obtaining Medical Records and Their Impact on SSA’s Region I Pilot Program
The ability of claimants to request and receive medical records in a timely fashion likely
directly impacts enforcement of and adherence to the five-day rule. Indeed, unless claimants can
request and receive medical records in a timely fashion, no closing the record rule can be
consistently adhered to or fairly enforced. Timely receipt of evidence presents an obstacle
because, as noted by many people interviewed for this report (including SSA staff and claimants’
representatives), medical providers responsible for responding to requests for medical records are
often busy and understaffed.373 Accordingly, some medical providers take substantial amounts
of time to fulfill requests for records or send incomplete responses to records requests.374
Indeed, despite the fact that medical records are such a critical part of the SSA’s hearing process,
obtaining timely and complete medical records can be challenging and can cause delays in the
process of collecting and finalizing an evidentiary record for review.375 The current process for
requesting and gathering medical records is cumbersome and is the most frequent source of delay
in the disability determination process.376 The ability to timely obtain medical evidence is also
affected by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), which
defines the circumstances in which an individual’s health information may be used or

370

See id.
See id.
372
See id.
373
A 2008 Government Accountability Office (“GAO”) report noted challenges SSA faces in obtaining medical
records from claimants’ medical care providers, and how those challenges cause delay in the hearing process. See
generally “Social Security Administration: Collection of Medical Evidence Could be Improved with Evaluations to
Identify Promising Collection Practices,” Report No. GAO-09-149, (2008), available at http://www.gao.gov/assets/
290/284422.pdf.
374
See id. at 13-19.
375
See id.
376
See id.
371

63

disclosed.377 HIPAA’s security provisions require entities that hold or transmit health
information to maintain reasonable safeguards to protect the information against unauthorized
use or disclosure, as well as ensure its integrity and confidentiality.378 Complying with HIPPA
requirements can potentially cause medical providers to take additional time to fulfill requests,
resulting in delays of the transmission of medical records to SSA. These delays, in turn, may
affect compliance with and enforcement of a rule closing the record in advance of the hearing
when untimely evidence fails to meet a good cause exception.379
Use of Technological Advances to Address Issues with Obtaining Medical Records
Given that issues with obtaining medical records may often be a reason for submitting
evidence shortly before or even after a hearing, SSA may want to consider addressing ways to
improve access to medical records. Such improvement would ensure better compliance with and
enforcement of the five-day rule. To address the issue of obtaining medical records, SSA has
made some progress by moving to electronic collection of medical records. However, the
agency still faces challenges in fully implementing electronic submission, retrieval, and analysis
of medical evidence. 380
To improve and expedite the collection of medical records, SSA has recently launched its
Health Information Technology (“HIT”) program, which allows the agency to electronically
obtain a complete medical record from a claimant who applies for disability benefits. The
program allows for the electronic transmission of records, substantially shortening the amount of
time needed to obtain records.381 The agency believes that electronic records transmission will
make it easier for claimants to timely submit evidence and thus reduce delays in the hearing
process. However, the agency faces challenges to encouraging medical providers to use the HIT
program.382 Currently, only 1.7% of all SSA cases involve providers who participate in the
program.383 The HIT program is slowly expanding and in the next FY, the agency projects that
2.3% of all SSA cases will involve providers who participate in it.384 With the expansion of the
HIT program and other technological advances in electronic medical records, the agency is
hopeful that medical records will be easier to obtain in the future than they have been in the
past.385 If medical records become easier to obtain, a major barrier to compliance with and
enforcement of rules which close the evidentiary record would be removed.

377

See id.
See id.
379
See id.
380
See id.
381
See Health IT Initiative Fact Sheet, available at http://www.ssa.gov/hit/our-initiative.html (last visited June 15,
2013).
382
See Telephone interview with SSA Health IT Program official (Mar.30, 2013) (interview notes on file with
authors).
383
See id.
384
See id.
385
Also note that in SSA’s Unified Agenda, the agency has referred to its plans for continued expansion of the HIT
program. See SSA: Obtaining Evidence Beyond the Current “Special Arrangement Services” (3761I), RIN: 0960AH44, Spring 2013, available at http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201304&RIN=0960AH44.
378

64

C. Views of Third Party Organizations on Region I Pilot Program
1. Administrative Law Judge Organizations
In order to obtain a more complete view of the impact of the pilot program in Region I,
we contacted ALJ organizations, namely the AALJ386 and the Federal Administrative Law
Judges Conference (“FALJC”).387 We sent questions to the organizations388 and after receiving
their responses, conducted follow-up interviews with their members.
a. Association of Administrative Law Judges
Although the AALJ did not provide an official union position, it responded with the
perspectives of several Region I ALJs active in the union, including the AALJ Region I Vice
President.389 The perspectives were varied. One AALJ member described the five-day rule as a
useful tool, though infrequently enforced by ALJs.390 He said that the rule minimizes, rather
than eliminates the problems arising from the late submission of evidence.391 Another AALJ
member strongly supported the five-day rule as a regulation that “promotes the fair and orderly
adjudication of claims, consistent with the requirements of due process.”392 He went on to say
that it accomplishes this feat without an increased burden on the taxpayer, while decreasing
administrative burdens.393 He asserted that it improves both teamwork and standardization
between staff and ALJs, as well as advocacy by claimants’ representatives, and allows for
adequate review of the record and preparation for the hearing.394 In fact, he stated that the rule
has permitted his office, where staff levels have decreased, to keep up with the processing of
cases.395 He believed that the burden that used to exist on staff and witnesses has been alleviated
by the rule.396 However, as strongly as this AALJ member affirmed the five-day rule, another

386

The AALJ was founded in 1971 as a professional organization. It became the SSA ALJ union in 1999; currently
its membership includes 80% of SSA ALJs. See http://www.aalj.org/mission-history (last visited May 19, 2013).
387
The FALJC is a professional organization that represents the interests of ALJs across the federal government.
See http://www.faljc.org/membership/ (last visited May 19, 2013).
388
The responses we received from the ALJ organizations are included in the appendix. See APPENDIX TO REPORT
ON REGION I PILOT PROGRAM, supra note 5, at Apps. F & G, pp. A-133 to A-139.
389
See E-mail from AALJ Pres., to Amber Williams, Att’y Advisor, Admin. Conference of the U.S. (May 14, 2013)
(on file with authors) [hereinafter AALJ Response 1]; E-mail from AALJ Vice Pres., to Amber Williams, Att’y
Advisor, Admin. Conference of the U.S. (May 15, 2013) (on file with authors) [hereinafter AALJ Response 2]; Email from AALJ Local Rep., to Amber Williams, Att’y Advisor, Admin. Conference of the U.S. (May 15, 2013) (on
file with authors) [hereinafter AALJ Response 3].
390
See AALJ Response 1, supra note 389.
391
See id. This ALJ advocated for SSA to adopt federal court practices for the submission of evidence. See id. He
believed that representatives should bring the file up-to-date immediately after accepting representation. See id. He
also believed that representatives should certify that the record “is current every 30 days prior to the hearing date.”
See id.; see also Telephone interview with AALJ Representatives from Region I (May 16, 2013) (interview notes on
file with authors) [hereinafter AALJ Interview].
392
AALJ Response 3, supra note 389. He also noted that in his office, the 5-day rule is consistently applied. See id.
He himself routinely applies both the rule and its exceptions. See id. He noted that some exceptions include: “new
evidence created within two weeks of the hearing date, illness of the representative, and recalcitrant medical
providers who refuse to provide treatment notes.” Id.
393
See id.
394
See id.
395
See AALJ Interview, supra note 391.
396
See id.
65

AALJ member just as strongly opposed it.397 He believed that the regulation “creates extra work
in trying to justify non-consideration as a procedural matter when it is simple to consider the
evidence.”398 He called the regulation “a nightmare for the staff,”399 and said there is a lack of an
agency-approved procedure on how to process the evidence. He believed that both the five-day
rule and the reopening regulations violate both the Administrative Procedure Act and the Equal
Protection Clause.400
As to the 75-day notice requirement, one AALJ member did not believe it significantly
benefits representatives, since they routinely submit evidence based on their own circumstances
and schedules.401 He thought that a superior method of ensuring that evidence is brought up-todate would be to require that the record be updated on a regular, periodic basis.402 Another
AALJ member disagreed by noting that sending out advance notice—75 to 100 days before the
hearing date—has given representatives adequate time to submit evidence five days before the
hearing date, resulting in a dramatic decrease in the late submission of evidence.403 Yet another
AALJ member believed that the 75-day notice requirement, rather than creating a boon for
administrative efficiency, resulted in added hindrance because representatives “can refuse
reschedules or not agree to hearing times.”404 This AALJ member experienced as many hearing
postponements under the 75-day notice requirement as he did under the 20-day notice
requirement.405 He shared that when he tries to fill the gaps in his schedule created by hearings
that have been postponed, representatives often will not agree to less notice, even though that
notice is given more than 20 days—the regulatory standard in other regions—in advance.406
Regarding the pilot program overall, one AALJ member emphasized the importance of
not only having rules, but also enforcing those rules.407 He lamented “the absence of meaningful
sanctions to enforce the procedural rules[, stating that h]aving rules without the ability to enforce
them is a meaningless exercise.”408 He believed that the pilot program in Region I should be
continued, but modified to facilitate better development of the record, as well as a judge’s
“ability to regulate the timely submission of evidence.”409 This AALJ member also expressed
concern that the district court and Appeals Council would not uphold the ALJ’s decision to
prohibit evidence from being included in the record.410 Another AALJ member, whose office
consistently applied the rules, praised the program.411 He both maintained that the program is

397

See id. Another ALJ characterized the way things used to be prior to the pilot program as “inefficient” and a
“nightmare.” Id.
398
AALJ Response 2, supra note 389.
399
See id.
400
See id.
401
See AALJ Response 1, supra note 389.
402
See id.; see also AALJ Interview, supra note 391 for a description of the process he envisions.
403
See AALJ Response 3, supra note 389.
404
AALJ Response 2, supra note 389.
405
See id.
406
See id.
407
See AALJ Response 1, supra note 389.
408
See id.
409
See id.
410
See AALJ Interview, supra note 391. Another ALJ stated that his decisions to keep out evidence have been
upheld by both the Appeals Council and district courts. See id.
411
See AALJ Response 3, supra note 389.
66

not “anti-claimant,” and also professed that not enforcing the program actually “has a deleterious
effect not only on the adjudication of the instant claim, but on every succeeding claim.”412 While
he approved of the program, he recommended clarification of the rules, believing that the fiveday rule conflicted with keeping the record open.413 Still another AALJ member held a low view
of the pilot program, indicating that it not only did not benefit him, but actually worked against
the claimant.414 He cited the ALJ’s “duty to fully and fairly and impartially develop the
record,”415 and said that excluding evidence just because the representative did not timely submit
it does not comport with the ALJ’s duty.416 All of the AALJ members agreed that the rules
should be consistent nationwide; most of them believed that the pilot program’s rules should be
adopted by the rest of the country.417
b. Federal Administrative Law Judges Conference
The FALJC viewed the Region I pilot program more expansively than just involving the
75-day notice requirement and five-day rule, and stated its perspective on the program from the
DDS level through the full administrative appeals process. The organization approved of the 75day notice requirement, as well as the five-day rule, but expressed grave concern regarding the
front end of the process.418 It maintained that inconsistent record development standards and
payment rates exist among the different states.419 Moreover, the organization believed that cases
are not fungible—for example, in some areas, case files are thick and in other areas, thin.420
Likewise, it asserted that some areas have talented and dedicated representatives, while other
areas lack adequate representation.421 Further, the organization stated that Appeals Council
adjudication results in inconsistent decisions.422 To help make the process better, the FALJC
suggested that a project
be initiated for claims likely to go to step 5 of the sequential evaluation, [at which
time] the burden of proof shifts from a claimant to the agency to show that there
are a significant number of jobs in the national or regional economy that may be
performed given the [residual functional capacity] RFC.423

412

See id.
See AALJ Interview, supra note 391.
414
See AALJ Response 2, supra note 389.
415
See id.
416
See id.
417
See AALJ Interview, supra note 391.
418
See Telephone interview with FALJC Representative (May 16, 2013) (interview notes on file with authors)
[hereinafter FALJC Interview].
419
See id. This fact is compounded by the existence of prototype and non-prototype states; see also Letter from
FALJC Pres., to Amber Williams, Att’y Advisor, Admin. Conference of the U.S. (May 13, 2013) (on file with
authors) [hereinafter FALJC Response].
420
See FALJC Interview, supra note 418.
421
See id.
422
See id.
423
FALJC Response, supra note 419. The FALJC also recommended that ALJs serve on the appellate board on a
revolving basis. See id. In addition, the FALJC advocated focusing on conducting Continuing Disability Reviews
and spending the funds realized on vocational rehabilitation. See id. The organization asserted that “SSA would get
hundreds, if not thousands back for each dollar spent.” See id. Thus, the FALJC believed, fewer claims will be
adjudicated, fixing “the SSDI Trust Fund solvency problem.” See id.
413

67

The FALJC believed the pilot program should be expanded to “at least one other region .
. . with much lower rates of payment at the DDS level.”424 The organization asserted that
currently SSA does not have enough information to be able to properly compare the results in the
pilot program with other regions.425 It maintained that testing the pilot in another region is
essential to establishing a point of reference.426 The organization suggested establishing a pilot
program in part of Region IV—since it is much more rural than Region I—for a couple of
years.427 By establishing the pilot in two regions that are different from each other in important
ways, the FALJC believed that SSA would have the data it needs to determine whether to
implement the program nationwide.428
2. Claimant Representative Organizations
Just as we believed contacting ALJ organizations necessary to obtain a complete view of
the impact of the Region I pilot program, we believed contacting claimants’ representative
organizations to obtain their views would also be invaluable to our study. To that end, we
contacted NOSSCR429 and the National Association of Disability Representatives (“NADR”).430
We sent them questions431 and after receiving their responses, interviewed representatives of the
organizations.
a. National Organization of Social Security Claimants’ Representatives
NOSSCR submitted its feedback by providing both a general overview of NOSSCR’s
position on the current pilot program and specific comments from NOSSCR members in
response to the questions we posed to the organization.432 NOSSCR believed that the pilot
program imposed limits on the record such that denials of benefits may be “based on an
incomplete record.”433 It believed that this result is diametrically opposed to the goal of the
system: to make a determination based on a complete record.434 Further, NOSSCR noted that the
current pilot program does not make allowances for the many legitimate reasons—often outside
of the control of claimants or their representatives—why evidence has not been submitted
earlier.435

424

See id.
See id.
426
See FALJC Interview, supra note 418.
427
See id.
428
See id. The FALJC maintained the importance of including a prototype state in the portion of Region IV that is
chosen in order to monitor and understand the effects on the program both when an opportunity for reconsideration
at the DDS level exists and when it does not. See id.
429
NOSSCR was founded in 1979 and “is an association of over 4,000 attorneys and other advocates who represent”
SSDI and SSI claimants. See http://www.nosscr.org/about-us (last visited June 1, 2013).
430
NADR was founded in 2000 and is an organization dedicated to representing “people who have Social Security
related problems” across the nation. See http://www.nadr.org/about-nadr/ (last visited June 1, 2013).
431
The responses we received from the claimants’ representative organizations are included in the appendix. See
APPENDIX TO REPORT ON REGION I PILOT PROGRAM, supra note 5, at Apps. H & I, pp. A-140 to A-162.
432
See E-mail from NOSSCR Exec. Dir. & NOSSCR Dir. of Gov’t Affairs, to Amber Williams, Att’y Advisor,
Admin. Conf. of the U.S. (May 1, 2013) (on file with authors) [hereinafter NOSSCR Response].
433
Id.
434
See id.
435
See id.
425

68

NOSSCR provided a number of serious concerns regarding the five-day rule. First, it
believed that the five-day rule runs contrary to the Social Security Act, which requires the
Commissioner (and those to whom he or she has delegated decision-making authority) to make
decisions “on the basis of evidence adduced at the hearing.”436 By limiting evidence that may be
considered at the hearing, the organization asserted that the ALJ is unable to make a decision
based on all of the relevant evidence. Second, NOSSCR further believed that by limiting the
evidence that may be considered at the hearing, the five-day rule vitiates the ALJ’s duty to
develop the record.437 Third, the organization asserted that the pilot program gives ALJs the
power to violate claimants’ rights.438 NOSSCR noted that ALJs have discretion regarding
whether to consider evidence submitted within five days of the hearing by finding that claimants’
circumstances fall within the exceptions listed in the regulations.439 This discretion, NOSSCR
asserted, if exercised to exclude evidence, results in an incomplete record, with the claimant’s
only option to have the evidence considered existing at the Appeals Council level.440 Fourth, the
organization stated that the pilot program does not take into account “the realities of claimants
obtaining representation.”441 According to NOSSCR, claimants often seek “representation
[either] shortly before the hearing or after receiving the hearing notice.”442 The representative,
then, NOSSCR asserted, does not have enough time to gather evidence, even though the hearing
may still proceed.443 Fifth, it believed that the five-day rule ignores the realities of obtaining and
submitting medical evidence.444 While NOSSCR strongly supports the submission of evidence
as early as possible, it recognizes that there are a number of situations that may be outside of a
representative’s control which inhibit his or her ability to submit evidence.445 Some of the
situations NOSSCR mentioned include: (1) hospitals have changed ownership or closed and
transferred files elsewhere; (2) doctors do not make requests for medical records a high priority
and lack staff to fulfill the requests timely; and (3) hospitals refuse to accept any but their own
release forms, regardless of whether the other forms meet HIPPA standards.446 Sixth, NOSSCR

436

Id. (internal quotations omitted).
See id. One representative noted that the rule results in the cessation of an ALJ’s duty to develop the record on
the hearing date. See id. This, the representative believed, is contrary to the claimant’s right to a full and fair
hearing based on a complete record. See id.
438
See id.
439
See id. One representative believed that the “‘good cause’ rules . . . are too restrictive [and amount to]
progressive discipline.” Id.
440
See id. One representative commented that his practice is to submit in writing a request to admit late evidence
should he foresee that he will not be able to submit the evidence timely. See id. “No judge has refused [his]
requests.” Id. Another representative, while affirming that the 5-day rule is reasonable, has seen ALJs abuse their
discretion. See id. He recommended the rule be clarified with regards to whether a brief may be submitted within 5
days of the hearing. See id. He also recommended that small exhibits be allowed up through the day of the hearing.
See id. Yet another representative stated that some ALJs have “badly abused” the 5-day rule. See id. He noted that
“‘[l]ate’ opinion evidence can be excluded very easily by the ALJ who wants to deny a claim.” Id.
441
Id.
442
Id. One representative stated that “clients often do not find their way to [representatives] in time to have at least
75 days advance notice of hearing.” Id. The representative noted that sometimes claimants even wait until after
receiving an unfavorable decision from an ALJ before obtaining representation. See id.
443
See id.
444
See id.
445
See id.
446
See id.; see also Telephone interview with NOSSCR Representatives (May 6, 2013) (interview notes on file with
authors) [hereinafter NOSSCR Interview]. These examples are only a few of those that NOSSCR provided. See
437

69

stated that the regulations fail to adequately account for claimants’ changing medical
conditions.447 The organization noted that: (1) claimants’ conditions often deteriorate over time;
(2) some claimants have difficult-to-diagnose diseases; and (3) other claimants may not be able
to adequately articulate their conditions.448 According to NOSSCR, prematurely restricting
evidence submission in these cases could result in denial of a claim based merely on
technicalities.449
NOSSCR believed that the 75-day notice requirement works well and advocated
displacing the other regions’ 20-day notice requirement with it.450 NOSSCR members stated that
the 75-day notice requirement provides a reasonable timeframe in which they can develop the
record.451
NOSSCR members highlighted some key concerns they have with the pilot program.
One of the main concerns mentioned was inconsistency in the application of the regulations. As
one representative put it, “In practice, it’s ‘14 judges, 14 interpretations’ of these rules.”452
Another representative noted that the five-day rule coupled with the 75-day notice requirement
“generally improved practice[, but] have the potential to be used to hurt claimants.”453
NOSSCR made a number of suggestions to improve the disability adjudication process in
both Region I and the other regions. It recommended applying the 75-day notice requirement to
all regions.454 The organization also recommended eliminating the five-day rule and allowing
evidence to be submitted until the hearing.455 In the alternative, if the five-day rule is applied
nationwide, the organization and its members recommended a number of modifications,
including:

NOSSCR Response, supra note 432. NOSSCR also noted that hospitals often require prepayment before providing
medical records, and claimants may not be able to afford it. See id. Another obstacle NOSSCR identified involves
the power of ALJs to subpoena records, but lack of power to enforce the subpoena coupled with the U.S. Attorney’s
office’s power of enforcement, but lack of resources to exercise that enforcement power. See id.
447
See id.
448
See id.
449
See id.
450
See id.
451
See id. One representative stated that it can take 6 weeks or more to secure records from certain hospitals. See
id. Another representative said that sometimes medical providers submit the records quickly, thus resulting in a gap
of documentation between that quick submission and the hearing—which could be a full two months. See id.
452
Id. Another representative stated that some “judges apply [the rule] fairly and reasonably[, while o]ther judges
apply it arbitrarily and capriciously.” Id. Either way, he maintained, it’s often the claimant who suffers. See id.
One representative spoke of ALJs who:
(1) count Saturday and Sunday as part of the 5 days . . .; (2) end the 5 days on the day of the
hearing, or end the five days the day before the hearing; (3) count holidays or don’t count holidays
as part of 5 days; (4) review the time evidence is filed, and if filed after the office has closed for
the day, don’t count that day; (5) include the representative’s brief and claimant’s medication
sheets as subject to the five day rule . . .; (6) never apply an exception to the five day rule . . .; and
(7) will always accept records within the 5 days.
Id.; see also NOSSCR Interview, supra note 446.
453
NOSSCR Response, supra note 432.
454
See id.
455
See id.
70

•

•
•
•

•
•
•
•
•

Add a good cause exception to allow the “claimant to submit new and material
evidence”456 not only after the hearing, but after the ALJ decision is issued. As a
model, NOSSCR commended federal courts’ “sentence six” good cause
exception, which allows new and material evidence to be considered for a number
of reasons.457
Change five days from business to calendar days.458
Clarify the fifth business day deadline to mean midnight on the fifth day before
the hearing.459
Make the default posture one of evidence admittance with a generous
admissibility policy and never apply the five-day rule to evidence that did not
exist five days prior to the hearing date.460
Exclude evidence only on the basis of “willful malfeasance on the part of the
claimant’s representative.”461
Admit, without exception, “[l]ate evidence that is from an ‘acceptable medical
source’ that the record otherwise lacks.”462
Detail reasons in the ALJ’s decision regarding why he or she declined to admit
evidence.463
Clarify the regulations regarding what does and does not constitute good cause for
missing the evidence submission deadline.464
Expand the number of exceptions to waive the five-day rule deadline.465

Most importantly, if the five-day rule is retained, NOSSCR strongly recommended that SSA
clarify and issue more policy guidelines “to prevent arbitrary and inconsistent application of the
rule by some ALJs.”466
b. National Association of Disability Representatives
NADR also shared its perspective on the pilot program. While affirming the original
pilot program’s good intentions, the organization noted that the program did not work as people
had hoped it would.467 One aspect of the current pilot program—the five-day rule—invoked a

456

Id.
See id. Among other things, such reasons include: (1) “[m]edical evidence was not available at the hearing”; (2)
“[t]he impairment was finally and definitively diagnosed”; and (3) [t]he existence of the evidence was discovered
after the proceedings.” Id.; see also NOSSCR Interview, supra note 446.
458
See NOSSCR Response, supra note 432.
459
See id.
460
See id.
461
Id.
462
Id.
463
See id.
464
See id.
465
See id.
466
Id.
467
See E-mail from NADR Region I Rep., to Amber Williams, Att’y Advisor, Admin. Conf. of the U.S. (May 13,
2013) (on file with authors) [hereinafter NADR Response]. Among the aspects of DSI that fell short of NADR’s
hopes include: (1) lack of medical coverage for uninsured claimants; (2) DRB’s inability to review ALJ denials
timely; and (3) the failure of the Vocational/Medical Expert “bank” to work as it should. See id.
457

71

mixed response. NADR believed that the rule was reasonable when “flexibility is provided for
mitigating circumstances, but when it is strictly enforced it may become an impediment that
prevents the claimant from getting the correct decision in a timely manner.”468 NADR
understood the need for a rule assuring “timely, pre-hearing submission of voluminous medical
documentation.”469 Oftentimes, though, the organization believed that five-day rule does not
allow for real life situations. It noted that medical providers lose requests for evidence, file
medical statements before they are completed,470 and decline to accept HIPPA-compliant release
forms, to mention only a few situations.471 Compounding the problem, NADR stated, ALJs
apply the five-day rule inconsistently across Region I.472 NADR feared that claimants will be
penalized for either “shoddy representation” or “[r]igid adherence to the 5-day rule”473 when the
ALJ’s decision should be based on all of the evidence.474
NADR believed that the current regulations should be modified, clarified, and
consistently applied.475 To that end, the organization made some suggestions. While NADR
stated that evidence should be provided as soon as possible, it noted that if the representative
believes that he or she will be unable to secure the evidence timely due to circumstances outside
of his or her control, the representative should ask the judge for a waiver of the five-day rule; the
waiver should be automatically granted.476 Similarly, the organization suggested that if the
representative submitted evidence at the hearing, as long as the evidence is limited to 10 to 15
pages, the ALJ should automatically allow it into the record.477 On the other hand, NADR
believed that if the representative submitted voluminous evidence within five days of the hearing
without a request to allow such evidence under one of the good cause exceptions, he or she
should be sanctioned.478
NADR further suggested that “new and material” evidence submitted to the Appeals
Council that “relates to the period on or before the ALJ decision” should be considered by that

468

Id.
Id.
470
NADR noted that it can take medical providers days or weeks to create records. See id.
471
See id. NADR asserted that while representatives need to be working with medical providers to secure all the
relevant evidence, they must be careful not to exacerbate the providers by requesting too much too frequently. See
Telephone interview with NADR Representatives (May 15, 2013) (interview notes on file with authors) [hereinafter
NADR Interview]. The organization stated that representatives need to cultivate a good relationship for this and
future clients. See id.
472
See NADR Response, supra note 467. Another major issue NADR stated is the inadequate processing of
documents by ODAR staff. See NADR Interview, supra note 471. The organization maintained that representatives
submit documents, but ODAR staff members fail to exhibit them in a timely manner, leading ALJs to decline to
admit the evidence into the record. See id.
473
NADR Response, supra note 467.
474
See id.
475
See id.
476
See id.
477
See id.; see also Interview with NADR Interview, supra note 471. NADR stated that most of the time, a
representative will know how much material is yet to be submitted. See id.. There are times, though, the
organization maintained, when the amount of material—great or small—surprises the representative. See id.
478
See NADR Response, supra note 467. NADR noted that sanctions against representatives should not be enacted
in a vacuum; if ALJs are not doing their jobs, they should be sanctioned as well. See NADR Interview, supra note
471. Ultimately, the organization asserted, whether evidence is admitted should not adversely affect the client,
rather, it should only adversely affect the person not doing his or her job. See id.
469

72

body.479 Coupled with that suggestion, the organization recommended clarifying what “relates to
the period” means.480 NADR affirmed the 75-day notice requirement as providing a reasonable
timeframe to collect evidence.481 However, it tempered its affirmation by noting that, at times,
representatives are unable to provide evidence timely because they must rely on medical
providers who are not always timely themselves.482
Overall, NADR believed the 75-day notice requirement should be implemented
nationwide immediately.483 The organization was more cautious regarding the five-day rule.
NADR would support the pilot program being continued and then expanded to the other regions
only if the changes it recommended to the five-day rule are implemented.484
3. American Bar Association
To obtain the perspective of an organization that represents a variety of views, we
contacted the ABA485 about the Region I pilot program. As with the ALJ and claimant
representative organizations, we sent the ABA questions486 and after receiving its response,
interviewed one of its representatives.
The ABA stated that it “support[s] efforts to move cases quickly and reduce the backlog
of SSA disability claims by encouraging a greater effort to issue a correct decision as early in the
process as possible.”487 At the same time, the ABA also asserted the need for a high quality of
intake and evidentiary development early in the process.488 The organization expressed concern
that certain claims that could have been decided faster are instead routed through the elaborate
appellate process.489 In order to facilitate faster processing of claims, the ABA suggested that
the agency advise claimants that if they provide medical evidence and work histories promptly,
their claims may be adjudicated in a timelier manner.490
The organization noted that it “does not have specific policy on the issue of closing the
record in SSA hearings,”491 but highlighted a policy it adopted in 2003 relating to Medicare

479

See NADR Response, supra note 467.
See id.
481
See id.
482
See id. In actuality, NADR noted that hearings are often noticed 90 days in advance of the hearing date. See
NADR Interview, supra note 471.
483
See id.
484
See NADR Response, supra note 467.
485
The ABA was founded in 1878. It “is one of the world’s largest voluntary professional organizations, with
nearly 400,000 members and more than 3,500 entities.” See http://www.americanbar.org/utility/about_the_aba. html
(last visited June 2, 2013).
486
The response we received from the ABA is included in the appendix. See APPENDIX TO REPORT ON REGION I
PILOT PROGRAM, supra note 5, at App. J, pp. A-163 to A-165.
487
Letter from ABA Dir., to Paul R. Verkuil, Chairman, Admin. Conf. of the U.S. (May 15, 2013) (on file with
authors) [hereinafter ABA Response].
488
See id.
489
See id.
490
See id.
491
See id. But see ABA REPORT, supra note 3, at 17 (supporting closing the record in SSA disability adjudication,
subject to an exception for good cause). The ABA representative with whom we spoke confirmed that this
480

73

adjudication. Its Medicare policy stated that: “The record should not be closed prior to the
hearing. After the ALJ hearing, beneficiaries should be provided the opportunity to reopen the
record for good cause.”492
While the ABA approved of the 75-day notice requirement without reservation,493 the
organization urged caution should SSA decide to adopt the five-day rule. While the ABA
recognized that the five-day rule addressed its concerns regarding the ability of claimants to
submit relevant evidence,494 it simultaneously encouraged vesting ALJs with discretion to waive
the rule; a decision based on all relevant evidence is of paramount importance.495 The
organization emphasized the needs of the claimant and the related requirements of due process,
noting that those needs are not met either when representatives do not submit evidence timely, or
when ALJs do not allow evidence under good cause exceptions.496
The ABA affirmed the informal and nonadversarial nature of the SSA hearing process, as
well as the ALJ’s role “as a true independent fact-finder who has a duty to develop the
record.”497 The organization stated that it supports this role over a move to an appellate,
legalistic process.498 Ultimately, the ABA recommended expanding the pilot program to a
portion of another region with modified regulations that would result in more fully developed
files.499
D. Judicial Decisions Applying the Pilot Program’s Evidentiary Standards
Region I is comprised of states spanning both the First and Second Circuits.500 Only five
reported cases involving the five-day rule have emerged from the federal court system—four
from the District of Maine, and one from the District of Connecticut. Each of the four decisions
from Maine upheld the adjudicator’s—ALJ or DRB—decision to close the record; however, the
decision from Connecticut remanded the case to the agency. The following part includes
summaries and analyses of the five cases.
1. Majority View: Affirming Disallowance of Untimely Evidence
Black v. Astrue:501 The plaintiff filed suit alleging, among other things, that the ALJ
“failed to consider all relevant, material evidence”502 by “refusing at [the] hearing to admit

statement remains valid. See Telephone interview with ABA Representatives (May 17, 2013) (interview notes on
file with authors) [hereinafter ABA Interview].
492
ABA Response, supra note 487 (internal quotations omitted).
493
See ABA Interview, supra note 491.
494
The organization, in the next paragraph, doubted the legality of the 2007 NPRM, which proposed “to limit the
submission of new evidence to the ALJ to five business days before the hearing.” ABA Response, supra note 487.
495
See id.
496
See id.
497
Id.
498
See id.
499
See ABA Interview, supra note 491.
500
Maine, Massachusetts, New Hampshire, and Rhode Island are part of the First Circuit; Connecticut is part of the
Second Circuit.
501
No. 10-175, 2011 WL 1226027 (D. Me. Mar. 29, 2011) aff'd sub nom. Black v. Soc. Sec. Admin. Com'r, 2011
WL 1465443 (D. Me. Apr. 18, 2011).
74

tardily submitted evidence.”503 At the hearing, the attorney attempted to submit an assessment
by the plaintiff’s psychiatrist, which he had been told had been previously filed with the ALJ.504
The form, however, had not been filed. The attorney’s staff had sent it back to the psychiatrist
because he had failed to complete it in pertinent part.505 The staff believed that if the form was
not filled out properly, it would not support a finding of disability. The ALJ declined to admit
the evidence because the attorney “had ample opportunity to submit such documentation in a
timely manner”506—the attorney had represented the plaintiff for an adequate period of time and
the psychiatrist had treated the plaintiff for the past year. Moreover, “there were no extant
circumstances as outlined per [the regulations] that prevented timely submission of evidence, and
as such the parameters [were] not met.”507 When appealing the decision to the district court, the
attorney argued that (1) SSA “misled” the plaintiff because the hearing notice was issued
significantly fewer days than the 75-day notice requirement508 and (2) the miscommunication
between him and his staff constituted an “unusual, unexpected, or unavoidable circumstance.”509
The court determined that (1) SSA had not mislead the plaintiff since the plaintiff “had filed a
written waiver of his right to a 75-day written notice of the hearing,”510 and (2) neither
miscommunication nor belief that incomplete records would not support a disability claim met
the regulatory exceptions for “timely filing.”511
Beaucage v. Astrue:512 The plaintiff alleged, among other things, that the DRB “erred
when it refused to consider medical records submitted after the [ALJ] had issued her
decision.”513 The attorney’s staff “mistakenly failed to file the [doctor’s] statement with other
records timely submitted.”514 The attorney did not realize the mistake until after the ALJ’s
decision was issued. The plaintiff also alleged that the ALJ had acted as if she admitted the
missing file.515 The DRB, however, declined to consider the report. The court upheld the DRB’s
decision, stating that the plaintiff did not meet the regulatory threshold—not only did the late
submission of evidence have to be caused by an unusual, unexpected, or unavoidable
circumstance outside of the plaintiff’s control, but also that evidence must have had a reasonable
probability of changing the outcome of the decision.516 The court found that miscommunication
between an attorney and his staff did not meet the regulatory requirement of an unusual,
unexpected, or unavoidable circumstance,517 and therefore did not find it necessary to decide
whether the evidence met the reasonable probability threshold. However, if the court had to

502

Id. at *2.
Id.
504
See id. at *3.
505
See id.
506
Id. at *4.
507
Id.
508
See id.
509
Id. at *5.
510
Id. at *4.
511
Id. at *5.
512
No. 10-326, 2011 WL 2600978 (D. Me. June 29, 2011) report and recommendation adopted, 2011 WL 2892507
(D. Me. July 19, 2011).
513
Id. at *1.
514
Id. at *2.
515
See id. at *3.
516
See id. at *2-3.
517
See id. at *3.
503

75

reach that issue, it still would not have found the newly submitted evidence to reach the
regulatory threshold.518
Newcomb v. Astrue:519 The plaintiff sued, alleging, among other things, that the ALJ
“erred in barring her from presenting additional medical evidence that . . . would have been
helpful in forming his opinions.”520 At the hearing, her attorney attempted to have a person
testify who had been the lead case manager at meetings the plaintiff attended for treatment and
support.521 The attorney was unaware that notes had been taken at the meetings until the day
before the hearing.522 The ALJ denied his motion to allow the lead case manager to testify since
the meeting notes had not been timely filed, making cross examination unfair and unreliable.523
The ALJ, however, allowed “the plaintiff to file a written offer of proof post-hearing.”524 When
the attorney “moved for an extension of time to obtain and file [additional] records” that he
learned about at the hearing, the ALJ again declined.525 The ALJ noted that the regulations were
created, in part, to address the “systemic lack of preparation on the day of the hearing, or after
the hearing[, which] led to a delay in adjudication that was intolerable. [He stated that] there
[were] situations where late filed evidence should be admitted, [but] in order to do that, there
ha[d] to be good cause.”526 The attorney filed a post-hearing letter asserting that he had been
“misled regarding the existence of the” records and that the regulatory standards had been met
because he had made a good faith effort to obtain all the records prior to the hearing.527 He
requested that the record be kept open and that a supplemental hearing be scheduled, remarking
that anything less would be “unfair to this claimant and contrary to [the ALJ’s] duty to develop
the medical record before issuing a decision.”528 The court upheld the ALJ’s declination to
admit the evidence because the “plaintiff had failed to show ‘good cause’ for [the] tardy
admission [of evidence], that is, . . . she failed to meet any of the three enumerated circumstances
in which post-hearing evidence must be admitted pursuant to”529 the regulations. The court held
that the ALJ “ha[d] no obligation to accept late tendered evidence unless good cause [wa]s
shown.”530 Here, the plaintiff failed to show good cause.
Raymond v. Astrue:531 Among other things, the plaintiff alleged that the ALJ
“improperly refused to admit certain evidence.”532 The plaintiff tried to submit his doctor’s
evaluation the day before the hearing, but the ALJ “refused to admit [it] because it had not been

518

See id. at *4.
No. 11-02, 2012 WL 47961 (D. Me. Jan. 6, 2012) report and recommendation adopted, 2012 WL 206278 (D. Me.
Jan. 24, 2012).
520
Id. at *1.
521
See id. at *2.
522
See id.
523
See id.
524
Id. at *3.
525
Id. at *4.
526
Id. at *5.
527
Id.
528
Id.
529
Id. at *9 (emphasis in original).
530
Id. at *10.
531
No. 12-92, 2012 WL 6913437 (D. Me. Dec. 31, 2012) aff'd, 2013 WL 214569 (D. Me. Jan. 18, 2013).
532
Id. at *1.
519

76

timely presented before the hearing.”533 The plaintiff contended that he was unaware either of
the report’s existence or of his estranged wife having any of his medical records.534 He tried to
submit the evidence under the exception that allows for late submission where unusual,
unexpected, or unavoidable circumstances outside of the claimant’s control prevent timely
submission of evidence.535 The court upheld the ALJ’s decision to bar the evidence, noting that
neither did (1) the plaintiff allege any impairment that prevented him from remembering that the
doctor examined him nor (2) did anything inhibit him from asking his estranged wife whether
she had any of his medical records.536 The court held that the ALJ did not abuse his discretion
when declining to consider such evidence.537
Overall, the district court in Maine recognized the need for the rule and deferred to the
adjudicator’s application of it. While the court performed an inquiry evaluating whether
substantial evidence existed to support the adjudicator’s decision to apply the rule in each case, it
gave deference to the adjudicator’s reasoning about whether to admit the evidence.
Only once did the district court mention “Sentence Six.”538 Even if the court deferred to
the agency’s findings, a case would be reversed and remanded when a plaintiff met “Sentence
Six” requirements. In other words, the only other circumstance in which a plaintiff may have his
or her case “revers[ed] and remand[ed] for consideration of evidence not presented to an [ALJ
was] only [when] that evidence [wa]s new and material and the plaintiff demonstrate[d] good
cause for its belated submission.”539 As the district court in Maine noted, good cause was a
stringent standard to meet.540 The standard was necessarily stringent because Congress wanted
to avoid cases being interminably bounced back and forth between the agency and the courts,
resulting in delays both to the case at hand and to other pending cases.541

533

Id. at *3.
See id.
535
See id.
536
See id.
537
See id.
538
As previously explained in Pt. II.B.1, “Sentence Six” refers to the sixth sentence in 42 U.S.C. 405(g). It reads:
534

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 further 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, 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 shall, after the case is remanded, and after hearing such additional evidence if so
ordered, modify or affirm the Commissioner’s findings of fact or the Commissioner’s decision, or
both, and shall file with the court any such additional and modified findings of fact and decision,
and, in any case in which the Commissioner has not made a decision fully favorable to the
individual, a transcript of the additional record and testimony upon which the Commissioner’s
action in modifying or affirming was based.
Id. (emphasis added).
539
Black v. Astrue, No. 10-175, 2011 WL 1226027, at *6 (D. Me. Mar. 29, 2011) ) aff'd sub nom. Black v. Soc. Sec.
Admin. Com'r, 2011 WL 1465443 (D. Me. Apr. 18, 2011) (emphasis in original).
540
See id.
541
See id.
77

2. Minority View: Exclusion of Evidence Improper
Savo v. Astrue:542 The issue before the court was, among other things, “whether the
[ALJ] improperly excluded evidence submitted by the plaintiff after the [a]dministrative
[h]earing.”543 The court found that the ALJ in fact did improperly exclude evidence. The court
cited the ALJ’s duty “to develop a complete medical record before making a disability
determination.”544 In this instance, the court found that the ALJ acted contrary to that duty by
“excluding evidence that suggest[ed] a worsening of the plaintiff’s condition simply because the
plaintiff submitted the evidence without explaining why the records were late.”545 The court
cited “Sentence Six” and looked to Tirado v. Bowen546 for guidance.547 Tirado v. Bowen
provided the Second Circuit’s standard regarding when a court should remand a case to the
agency for consideration of new evidence according to a three part test:
First, the new evidence must be new and not materially cumulative of what is
already in the record. Second[,] the evidence must be both relevant to the
[plaintiff’s] condition during the time period in which benefits were denied[,] and
probative. Third, the plaintiff must demonstrate good cause for the failure to
present the evidence earlier.548
The court found that the plaintiff met all three requirements. First, the records pertained
to surgery and treatment that occurred after the hearing.549 Second, the records were material,
since they contradicted the finding of the ALJ.550 Third, the plaintiff had good cause for not
filing the records sooner (because they did not exist earlier).551 SSA maintained that the ALJ
was correct in denying the submission of this evidence because the plaintiff failed to give a
reason why the evidence was not submitted sooner.552 The court disagreed with the agency’s
reasoning by noting that the evidence could not have been submitted sooner. The court further
stated that the agency did not argue that the evidence was submitted late for an improper
reason.553 The court remanded the case for the agency to consider the additional evidence.554
In our view, the court appeared keener to follow its circuit’s case law under “Sentence
Six”—it cited a Second Circuit opinion from 1988 when evaluating whether to remand the case
to SSA—than to apply the existing regulations. It focused on the fact that the plaintiff could not
have submitted the evidence before the hearing because he underwent surgery after the hearing.
We believe that the court correctly noted that the ALJ must consider evidence if an “unusual,
unexpected, or unavoidable circumstance” prevented the plaintiff from submitting evidence

542

No. 10-1612, 2011 WL 5025488 (D. Conn. Oct. 21, 2011).
Id. at *1.
544
Id.
545
Id.
546
842 F.2d 595 (2d Cir. 1988).
547
Savo v. Astrue, No. 10-1612, 2011 WL 5025488, at *2 (D. Conn. Oct. 21, 2011).
548
Id. (citing Tirado, 842 F.2d at 597) (internal quotations omitted).
549
See id.
550
See id.
551
See id.
552
See id.
553
See id.
554
See id. at *3.
543

78

timely. However, we also believe that the court failed to address whether the surgery was
“unusual, unexpected, or unavoidable.” Certainly the plaintiff could not submit records five days
before the hearing that did not exist at that time, but that fact alone is not sufficient to meet the
regulatory exception to the timely evidence submission requirement. The circumstance that
prevented the claimant from submitting records timely—in this case, surgery—must be “unusual,
unexpected, or unavoidable.” Absent that qualification, the plaintiff failed to meet the
exception.555
IV. RECORD CLOSURE IN OTHER FEDERAL AGENCY ADJUDICATION PROGRAMS
SSA, of course, is not the only adjudicatory system that must deal with the issue of when
(or under what circumstances) to close the evidentiary (i.e., administrative) record. We provide
below a brief overview of the record closure rules from a sampling of other federal agencies’
adjudicatory schemes. While mindful of the non-adversarial nature of SSA’s adjudication of
disability benefits claims, these examples—drawn from both adversarial and non-adversarial
systems—provide useful context for the evaluation of Region I’s pilot program and weighing
potential expansion to other regions.
The record closure practices for adjudicatory programs at the 10 federal agencies we
researched show a spectrum of approaches. At one end of this spectrum, two of these
adjudication programs—the Department of Labor’s (“DOL’s”) adjudication of black lung claims
and the Environmental Protection Agency’s (“EPA’s”) adjudication of civil penalties and
adverse permit actions—close the record a specified number of days before the scheduled
hearing subject to certain exceptions. Adjudicatory agencies in the middle close the evidentiary
record at the conclusion of the administrative hearing, subject to good cause-based and/or
materiality exceptions. Lastly, on the other end of the record-closing spectrum stands the
adjudication of veterans’ disability compensation (and other benefits claims) wherein the record
remains open throughout the administrative process before the Department of Veterans Affairs
(“VA”).
A. Closure of the Record Prior to the Hearing: A Less Common Approach
Our research uncovered two agency adjudication schemes that close the administrative
record prior to the hearing. First, the rules of practice governing adjudication of black lung
benefits claims by DOL ALJs generally restrict introduction of documentary evidence at the
hearing level—including medical evidence—unless such evidence has been exchanged with the
opposing party at least 20 days prior to the hearing.556 These rules of practice provide, in
pertinent part: “[D]ocumentary material, including medical reports . . . may be received in
evidence . . . if such evidence is sent to all other parties at least 20 days before a hearing is held

555

According to the court, the ALJ declined to consider the additional records because the “plaintiff did not
articulate a specific reason why they were late.” See id. at *2. It is conceivable that had the ALJ more specifically
discussed why he declined to admit such records (i.e., explain the regulatory requirements and how the plaintiff did
not meet them, rather than merely stating that the plaintiff failed to give a specific reason for the late submission),
the court may have come to a different conclusion.
556
See 20 C.F.R. § 725.456(b)(2) (2012). As noted below, however, the Department of Labor (“DOL”)’s
consolidated rules of practice for adjudication of other worker’s compensation and whistleblower claims set a
different timeframe for record closure. See discussion infra Section IV.B.
79

in connection with the claim.”557 The purpose of this provision is to prevent unfair surprise and
promote submission of a full record.558 If a party fails to comply with the 20-day rule, evidence
may still be admitted upon either the consent of all parties or a showing of good cause.559 If an
ALJ admits medical evidence under the foregoing exception, the hearing record must then be
kept open after the hearing for at least 30 days “to permit the parties to take such action as each
considers appropriate in response to such [late] evidence.”560 On the other hand, if a party fails
to comply with the 20-day rule and cannot satisfy any of the exceptions for late submission, the
ALJ has the discretion either to exclude the late evidence or remand the case back to the first-line
decision-maker (here, the district director) for consideration of such evidence.561
In reviewing cases involving the 20-day rule, at least one court has noted the potential for
tension between the prevention unfair surprise and procedural fairness in certain situations. In
Bethlehem Mines Corp. v. Henderson, the Fourth Circuit addressed this issue:
Rigidly enforced without exception . . . the twenty-day rule itself would invite
abuse by encouraging parties to withhold evidence until just before the deadline.
Yet we caution that neither the [Administrative Procedure Act] nor considerations
of due process should be understood as providing a license for a dilatory party to
delay preparation and timely submission of its affirmative case. The APA makes
clear that a party is only entitled to such rebuttal ‘as may be required for a full and
true disclosure of the facts.’562
The Bethlehem Mines court went on to find that, on the particular facts of the case, the appellant
mining corporation was not denied a fair hearing by the ALJ’s refusal to permit post-hearing
depositions. 563
A second agency with adjudicatory rules closing the record prior to the hearing is the
Environmental Protection Agency. EPA’s rules of practice for its administrative forum for the
adjudication of civil penalties and adverse permit actions close the record 15 days before a
hearing, subject to good cause exceptions. The rule, which is set forth in 40 C.F.R. § 22.22,
provides that if a party fails to properly disclose documentary materials or witness lists to an
opposing party as part of the requisite pre-hearing informational exchange, the Presiding Officer
“shall not admit” such information into evidence “unless the non-exchanging party had good
cause for failing to exchange the required information and provided the required information to
all other parties as soon as it had control of the information, or had good cause for not doing

557

Id.
See Bethlehem Mines Corp. v. Henderson, 939 F.2d 143, 148-49 (4th Cir. 1991).
559
20 C.F.R. § 725.456(b)(3) (2012).
560
Id. at § 725.456(b)(4) (2012).
561
Id. at § 725.456(b)(3) (2012).
562
Bethlehem Mines, 939 F.2d at 148-49. Interestingly, §725.456(b)(4) (2012) also contains a provision affording
an ALJ the ability to exclude late evidence if, in his or her opinion, the late submission resulted from intentional
dilatory tactics: “If, in the opinion of the administrative law judge, evidence is withheld from the parties for the
purpose of delaying the adjudication of the claim, the administrative law judge may exclude such evidence from the
hearing record and close the record at the conclusion of the hearing.”
563
Bethlehem Mines, 939 F.2d at 149.
558

80

so.”564 Thus, as with DOL’s adjudicatory scheme for black lung claims, EPA’s information
exchange and record closure provision seeks to prevent unfair surprise, but is tempered by a
good cause exception to ensure procedural fairness.
B. Post-Hearing Closure of the Record: The Predominant Practice
More common are agency adjudication schemes that close the record somewhat later in
the hearing process—typically, at the conclusion of the hearing or a few days afterward. None of
these agencies, however, definitively “close” the record post-hearing. Rather, each agency’s
rules of practice for their adjudicatory process set forth materiality or good cause exceptions that
permit additional evidence to be included in the hearing record. Thus, with respect to record
closure, the differences among these agencies’ adjudicatory procedures typically lay in the
variety of formulations for these exceptions. Some examples of these agencies’ record-closing
provisions (and their respective exceptions) include:
•

Merit Systems Protection Board (“MSPB”): When adjudicating claims by federal
employees under the federal merit systems, MSPB rules “ordinarily” close the record at
the conclusion of a hearing.565 MSPB rules also provide that, once the record closes, the
(non-ALJ) judge generally will not accept additional evidence or argument unless “(1)
[t]he party submitting it shows that the evidence or argument was not readily available
before the record closed, or (2) [i]t is in rebuttal to new evidence or argument submitted
by the other party just before the record closed.”566

•

U.S. Department of Justice Executive Office for Immigration Review (“EOIR”) &
Department of Labor Office of Administrative Law Judges (“DOL/OALJ”):
Interestingly, although DOL uses ALJs and EOIR does not, the rules of practice for
record closure in EOIR immigration proceedings precisely mirror those for DOL/OALJ’s
adjudication of claims outside the context of black lung claims (such as worker’s
compensation and whistleblower claims).567 For both EOIR and DOL/OALJ
proceedings, the record closes at the conclusion of the hearing “unless the [ALJ] directs
otherwise.”568 Once the record closes, no new evidence may be accepted into the record
except upon a showing by the party proffering the tardy evidence that such evidence is

564

40 C.F.R. § 22.22(a)(1) (2012).
5 C.F.R. § 1201.58(a) (2012). The MSPB record closing rule states in full: “When there is a hearing, the record
ordinarily will close at the conclusion of the hearing. When the judge allows the parties to submit argument, briefs,
or documents previously identified for introduction into evidence, however, the record will remain open for as much
time as the judge grants for that purpose.” Id.; see also Zwerling v. Office of Personnel Mgmt., 1997 U.S. App.
LEXIS 32339, **5-6 (Fed. Cir. 1997) (affirming administrative judge’s refusal, under 5 C.F.R. § 1201.58, to accept
late-tendered medical records when plaintiff failed to establish due diligence in obtaining records from doctor’s
office).
566
5.C.F.R. § 1201.58(c) (2012).
567
Congress has vested DOL with the responsibility to conduct formal hearings for over 60 different federal laws,
including black lung benefits, other worker’s compensation programs, and whistleblower claims. See, e.g., Dept. of
Labor, Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges; Proposed
Rules, 77 Fed. Reg. 72,142, 72,142-44 (Dec. 4, 2012) (discussing Congress’ expansion of DOJ/OALJ’s
jurisdictional authority in the last two decades) [hereinafter “DOL/OALJ Rules of Practice NPRM”].
568
28 C.F.R. § 68.49(a) (2012) (EOIR); 29 C.F.R. § 18.54(a) (2012) (DOL/OALJ).
565

81

“new and material” and “was not readily available prior to the closing of the record.”569
Barring a showing of good cause, all requests to submit documents after the record closes
must be filed not later than 20 days after the hearing and other parties to the proceeding
“shall have an opportunity to comment thereon.”570
•

Railroad Retirement Board (“RRB”) Bureau of Hearings and Appeals: The RRB
adjudicates benefits claims under the Railroad Retirement and Railroad Unemployment
Insurance Acts by railroad workers and their families.571 For hearings held by the Bureau
of Hearings and Appeals to adjudicate retirement-survivor benefits claims under the
Railroad Retirement Act, the record “shall be closed” at the end of the hearing “except
where the hearings officer has determined that additional evidence not offered by the
[claimant] at or prior to the hearing is available.”572 Claimants may request additional
time to submit post-hearing evidence—up to 30 days—based on “a showing of good
cause for failure to have submitted the evidence earlier.”573 For decisions appealed to the
full (three-person) RRB, appellants do not have the right to submit additional evidence.
The Board generally bases its decision on the record before the hearings officer—who is
not an ALJ—and generally does not accept additional evidence or hold a hearing.574
However, the Board may, in its discretion, grant an appellant’s request to augment the
record “when new and material evidence is available that, despite due diligence, was not
available before the decision of the hearings officer was issued.”575

•

Department of Agriculture (“USDA”): USDA administers several different
administrative adjudication schemes. First, for example, formal USDA hearings—which
are presided over by ALJs—cover claims related to a wide variety of agency programs,
ranging from marketing orders, to animal health, to grain standards.576 While the rules of

569

28 C.F.R. § 68.49(c) (2012) (EOIR); 29 C.F.R. § 18.54(c) (2012) (DOL/OALJ). DOL has proposed to update its
rules of practice for ALJ proceedings, including revisions to its record closure provisions. See DOL/OALJ Rules of
Practice NPRM, supra note 567, at 72,173, 72,192 (proposing, among other things, to consolidate 29 C.F.R. §§
18.54, 18.55 into new 29 C.F.R. § 18.90 and to revise certain text related to record closure). With respect
submission of post-hearing evidence, DOL proposes modest modification to the materiality/good cause formulation.
DOL’s proposed exception states, in pertinent part: “No additional evidence may be admitted [after the record
closes] unless the offering party shows that new and material evidence has become available that could not have
been discovered with reasonable diligence before the record closed.” Id. at 72,192 (29 C.F.R. § 18.90(b)(1)).
570
28 C.F.R. § 68.50 (2012) (EOIR); 29 C.F.R. § 18.55 (2012) (DOL/OALJ). DOL’s proposed regulatory revisions
to the record closure provisions governing DOL/OALJ proceedings would remove the 20-day limit on post-hearing
evidentiary submissions. The preamble to the DOL/OALJ Rules of Practice NPRM characterizes this 20-day limit
as “unnecessarily restrictive.” DOL/OALJ Rules of Practice NPRM, supra note 567, at 72,173. DOL proposes to
replace the 20-day requirement with a more general regulatory exhortation that parties must request permission to
submit post-hearing evidence “promptly after the additional evidence is discovered.” Id. at 72,192 (29 C.F.R.
§ 18.90(b)(1)).
571
See e.g., U.S. Railroad Retirement Board–An Agency Overview (January 2013), available at
http://www.rrb.gov/opa/agency_overview.asp. The RRB also has administrative responsibilities under the Social
Security Act for certain types of payments and railroad workers’ Medicare coverage. Id.
572
See 20 C.F.R. § 260.5(k) (2012).
573
Id.
574
Id. § 260.9(e) (2012); see also RAILROAD RETIREMENT BOARD, RAILROAD RETIREMENT HANDBOOK 2012 40
(2012); RRB Form HA-2 (02-12), available at http://www.rrb.gov/pdf/ha2.pdf.
575
Id.
576
See, e.g., 7 C.F.R. § 1.31 (2012).
82

practice for formal USDA hearings do not explicitly close the record at the end of
hearings, such record closure is evident from the rule governing petitions for reopening
hearings, which states: “A petition to reopen a hearing to take further evidence may be
filed at any time prior to the issuance of the decision by the [ALJ].”577 Such petitions
must, among other things, show the evidence is not cumulative and “set forth a good
reason why such evidence was not adduced at the hearing.”578
Also, USDA’s National Appeals Division (“NAD”) provides independent, informal (nonALJ) hearings for any person who receives an adverse program decision (e.g., denial,
suspension, or revocation of a license) relating to a host of agricultural, commodity, and
resource conservation programs.579 NAD rules of practice require the hearing officer to
leave the evidentiary record open for 10 days following the hearing (unless he or she
establishes a different period of time) to “allow for submission of information by the
[party] or the agency, to the extent necessary to respond to new facts, information,
arguments, or evidence presented or raised at the hearing.”580 While the NAD
regulations do not specifically provide hearing officers with discretion to reject posthearing evidence, USDA’s published guidance—The National Appeals Division Guide—
suggests there are indeed constraints on introduction of additional evidence:
If a party wishes to submit additional information [after the hearing
has adjourned], the Hearing Officer shall determine if it is relevant
and necessary to the determination. Evidence that was unavailable
at the hearing, such as a party’s response to a new issue or to
evidence presented at the hearing, may be submitted after the
hearing. . . . The Hearing Officer will add to the hearing record any
new information provided after the hearing and may allow other
part(ies) to respond to it.581
While there is no publicly available information regarding the application of this
provision by USDA hearing officers, the NAD Guide nonetheless seems to establish
materiality constraints on submission of post-hearing evidence.
•

Department of Health and Human Service (“HHS”) - Office of Medicare Hearings
and Appeals: The statute governing administrative appeals before ALJs employed by
HHS’s Office of Medicare Hearings and Appeals provides, indirectly, for closure of the
record for initial Medicare-related determinations by precluding introduction of evidence
on administrative appeal that was not submitted at the initial determination level. That is,
to promote “full and early presentation of evidence,” 42 U.S.C. § 1395ff (b)(3) forecloses
an appellant from introducing new evidence on appeal absent a showing of “good cause”

577

Id. § 1.146(a)(2) (2012).
Id.
579
See 7 C.F.R. pt. 11 (2012); USDA, THE NATIONAL APPEALS DIVISION GUIDE (Oct. 2008), available at
http://www.nad.usda.gov/Forms/ NAD%20Guide%20%28October% 202008%29.pdf [hereinafter NAD GUIDE].
580
7 C.F.R. § 11.8(c)(7) (2012). The NAD GUIDE states, however, that extending record closure beyond 20 days
after the hearing is “discouraged.” NAD GUIDE, supra note 579, at 42.
581
See NAD GUIDE, supra note 579, at 41-42.
578

83

explaining why such evidence could not have been submitted at or before the initial
hearing-level determination.
•

United States Coast Guard: The Coast Guard’s program for adjudication of matters
involving merchant mariners also closes the record—subject to broad ALJ discretion for
reopening—at the conclusion of the hearing. The pertinent provision provides that
“[w]hen the ALJ closes the hearing, he or she shall also close the record of the
proceeding . . . unless he or she directs otherwise. Even after the ALJ closes it, he or she
may reopen it.” 582

Lastly, it bears noting that the Administrative Conference’s “Model Adjudication Rules”
published in 1994 set forth guidance on record closure in agency adjudication proceedings.
Model Adjudication Rule 330 provides, in pertinent part:
At the conclusion of the hearing, the record shall be closed unless the Adjudicator
directs otherwise. Once the record is closed, no additional evidence shall be
accepted except upon a showing that the evidence is material and that there is
good cause for failure to produce it in a timely fashion . . . . [¶] Comment 1: In
particular categories of adjudication (i.e., social security cases), an agency may
wish to accord broader discretion to the Adjudicator to delay closing the record or
to admit additional evidence after the record has been closed. See ACUS
Recommendation 90-4(4), 1 C.F.R. § 305.90-4(4).583
As can be seen above, most administrative adjudication schemes follow—in some fashion—this
guidance on record closure, though the precise formulation of their respective rules of practice
vary from agency to agency.
C. Open Record: Unique Approach by the Veteran’s Administration
At the other end of the record-closure spectrum is VA. VA not only leaves the record
open throughout the adjudicatory process, but also, in effect, after the adjudicatory process has

582

See 33 C.F.R. § 20.709 (2012).
MICHAEL P. COX, THE MODEL ADJUDICATION RULES (MARS), 11 Thomas M. Cooley L. Rev. 75, 121 (1994).
ACUS Recommendation 90-4, which addresses the appeals process for Social Security disability benefit claims,
provides the following recommendation:
583

Closing of the Administrative Record: The administrative hearing record should be closed at a set
time after the evidentiary hearing. Prior to this, the ALJ should set forth for the claimant what
information the claimant needs to produce to complete the record, issue any necessary subpoenas,
and provide the claimant adequate time to acquire the information. Requests for extension should
be granted for good cause, including difficulty in obtaining material evidence from third parties.
The ALJ should retain the discretion to accept and consider pertinent information received after
closure of the record and before the decision is issued.
ACUS Recommendation 1990-4, Social Security Disability Program Appeals Process: Supplementary
Recommendation, 55 Fed. Reg. 34,213 (Aug. 22, 1990).
84

completed.584 In many ways, VA’s adjudicatory process is similar to SSA’s. The claimant first
files his or her claim with the local VA field office, which will render an initial determination.585
If the claimant is dissatisfied with the determination—for example, the claimant believes his or
her claim to have been erroneously denied or that his or her disability merits a higher severity
rating, or almost any other reason—he or she may appeal. When the claimant appeals to the
Board of Veterans’ Appeals (“BVA” or “Board”), the Board—whose membership consists of
non-ALJs—reviews the case de novo and issues its own determination.586 BVA decisions, by
statute, must be “based on the entire record in the proceeding and upon consideration of all
evidence and material of record and applicable provisions of law and regulation.”587 The BVA is
the final administrative step within VA.
Although VA and SSA share the same basic adjudicatory structure for disability benefits,
and their adjudications share similar characteristics (e.g., informal and non-adversarial),
Congress has statutorily tasked VA with greater responsibility regarding record development.
“An integral part of this system is embodied in the VA’s duty to assist the veteran in developing
the facts pertinent to his or her claim.”588 VA’s duty to assist claimants “is neither optional nor
discretionary.”589 Among other things, and regardless of whether the claimant is represented,
VA must not only help the claimant obtain evidence not yet submitted to the agency, but also
notify the claimant of any evidence “necessary to substantiate the claim.”590 This duty to assist
carries into the adjudication itself. VA must “consider every legal theory that could support a
claim for benefits”591 and “render a decision which grants [the claimant] every benefit that can
be supported in law while protecting the interests of the Government.”592

584

The only context that comes close to resembling record closure is VA’s new, voluntary “Fully Developed
Claims” (“FDC”) program. The FDC was jointly developed by VA and veteran’s organizations to help process
claims more efficiently and reduce the agency’s claims backlog. VA describes the program “as an optional new
initiative that offers Veterans, Servicemembers[,] and survivors faster decisions from VA on compensation, pension,
and survivor benefit claims.” Department of Veterans Affairs, Fully Developed Claims, http://www.benefits.va.gov/
fdc/ (last visited July 22, 2013). Essentially, VA will issue a decision faster for those veterans and survivors who
submit all necessary evidence when they file a claim and certify that they have no additional evidence to submit.
See Department of Veterans Affairs, Filing an Electronic Fully Developed Claim, available at http://benefits.va.gov/
BENEFITS/benefits-summary/FDCElectronicCompensation.pdf. Even in this context, record closure is a fluid
concept. If VA determines that additional records exist, it will remove the claim from the FDC program and the
claim will flow through the traditional claims process (which includes permitting the record to be further
supplemented). See id.
585
See BOARD OF VETERANS’ APPEALS, VA PAMPHLET 01-02-02A, HOW DO I APPEAL? 3 (2002), available at http://
www.bva.va.gov/docs/pamphlets/010202A.pdf [hereinafter HOW DO I APPEAL?].
586
See Daniel T. Shedd, Overview of the Appeal Process for Veterans’ Claims, Congressional Research Service 2
(Apr. 29, 2013), available at http://www.fas.org/sgp/crs/misc/R42609.pdf [hereinafter Overview of Veterans’
Claims]. The claimant may choose the less traditional method of requesting a Decision Review Officer (“DRO”) to
review his or her case de novo. See id. If the claimant is dissatisfied with the DRO’s decision, he or she may appeal
to the BVA. See id. at 8.
587
38 U.S.C. § 7104(a) (2012).
588
Littke v. Derwinski, 1 Vet. App. 90, 91 (Vet. App. 1990).
589
Id. at 92.
590
38 C.F.R. § 3.159(b) (2012); see also 38 U.S.C. § 5103(a)(1) (2012). VA must also supply the necessary forms
to the claimant (free of charge). See id. at § 5102(a)-(b) (2012).
591
Overview of Veterans’ Claims, supra note 586, at 5 (citing 38 C.F.R. § 3.103(a) (2012)).
592
Littke, 1 Vet. App. at 92.
85

Not only does the agency have a duty to assist the claimant in the submission of
additional evidence, but the claimant (or representative) also may continue to submit evidence
throughout the adjudicatory process. Even after the determination (and any reconsideration) by
field office staff, the claimant may submit additional evidence believed to be “relevant and
material”—both before the BVA reviews the claim and at the hearing itself.593 Once the Board
has received the file from the field office, the regulations (theoretically) impose a time limit for
receiving new evidence. The new evidence must be submitted “within [90] days after the BVA
has received the claim file, or up until the BVA actually decides the case (whichever comes
first).”594 After the 90 days have passed, the claimant must establish good cause for delay in the
submission of evidence.595 Good cause may include, among other things, circumstances such as
illness of the claimant or representative, death of the representative, or discovery of evidence
unavailable until after the deadline passed.596 As part of establishing good cause, the claimant
must explain why such additional evidence could not have been submitted timely.597 If the
evidence was requested within 90 days after the BVA has received the claim file, it will be
admitted into the record, regardless of whether the deadline for submission has passed.598
VA practices “allow[] development of new evidence up until the point that a final
decision is signed and mailed to the Veteran.”599 Even then, a “final decision” is not necessarily
final. After a final decision has been issued, the claimant may reopen the record by submitting
new and material evidence.600 VA has a liberal reopening policy; its affirmative duty to assist
applies to claimants seeking to reopen their cases.601 In the words of one VA official, “This open
record system is virtually unparalleled as compared to other courts or areas of administrative
law, and contributes significantly to delays in the system.”602

593

See 38 C.F.R. § 20.1304(a) (2012); HOW DO I APPEAL?, supra note 585, at 9-10.
Overview of Veterans’ Claims, supra note 586, at 10. Moreover, the claimant’s “identification of additional
evidence after the appeal has been transferred to the Board, or the submission of new evidence[,] trigger[] additional
development as a result of VA’s statutory duty to assist. [Likewise, the claimant’s] introduction of a new theory of
entitlement for the first time at the Board level . . . also requires evidentiary development.” Why Are Veterans
Waiting Years on Appeal?: A Review of the Post-Decision Process for Appealed Veterans’ Disability Benefits
Claims, 113th Cong. *5-*6 (2013) (statement of Laura Eskenazi, Principal Deputy Vice Chairman, Bd. of Veterans’
Appeals) [hereinafter Eskanazi Testimony].
595
See 38 C.F.R. 20 § 1304(b)(1) (2012).
596
See id.
597
See id.
598
See id. at § 1304(a) (2012).
599
Eskanazi Testimony, supra note 594, at *5.
600
See Overview of Veterans’ Claims, supra note 586, at 12; see also 38 U.S.C. §§ 7104(b), 5108 (2012). “New and
material evidence” is “medical evidence not previously submitted to VA, which bears directly and substantially
upon the issue, which is neither cumulative nor redundant, and which by itself or in connection with evidence that is
already of record is so significant that it must be considered to fairly decide [the] claim.” Quartuccio v. Principi, 16
Vet, App. 183, 185 (U.S. App. Vet. C. 2002).
601
VA has a duty under the Veterans Claims Assistance Act of 2000 to identify which evidence VA would provide
and which evidence would need to be provided by the claimant. See id. at 187.
602
Eskanazi Testimony, supra note 594, at *6.
594

86

V. GUIDING PRINCIPLES AND OBSERVATIONS: REGION I PILOT PROGRAM
In this section we conclude the report with guiding principles and observations the
agency may wish to consider when assessing the status of the current pilot program in Region I,
as well as and possibilities for future program revisions, improvements, and/or expansion.
A. Guiding Principles
First, SSA should send a clear message about its commitment to the pilot program in
Region I. Uncertainty in some quarters about the agency’s commitment to the program has led
to varying document submission practices among claimants or their representatives, as well as
uneven application of the five-day rule by ALJs and the Appeals Council. Whatever the agency
decides to do concerning this program in the future, its message should be clear. If SSA decides
to keep or expand the program, the agency should provide training for, and ensure consistent
application and enforcement of, such program. If it decides to eliminate the program, it should
do so. Without agency commitment, the pilot program will likely continue to exhibit
inconsistent application.
Second, when assessing possibilities for program revisions, improvements, and/or
expansion, SSA should strive to attain an appropriate balance between claimant and agency
interests as it pursues its goal of making the right decision on disability benefit claims as early in
the adjudication process as possible. Balance must be struck between fair consideration of the
claimants’ cases and administrative efficiency. As one scholar writing in this area has noted:
“Very few reforms will improve all dimensions of the process at once[.] Every change requires a
trade-off among relevant values.”603
Third, when determining future steps for the pilot program, the agency should gather the
views of relevant stakeholders. Oftentimes, though stakeholders share the same goal of paying
deserving claimants as quickly as possible, they will have different points of view regarding how
to achieve that goal. Engaging stakeholders early on and thoughtfully considering their
perspectives will go a long way toward ensuring the success of any revised or expanded program
relating to evidentiary submission and notice requirements.
Fourth, SSA should strive for consistency in two respects. First, as the administrator of a
national program, SSA laudably aims—to the greatest extent possible—to enforce nationally
consistent rules, regulations, and practices. Pilot programs are a responsible way to test new
ideas and procedures in a controlled and assessable manner;604 however, they should not
continue indefinitely. Allowing a pilot program, as such, to endure on a long-term basis creates
unnecessary and often confusing inconsistencies, introducing special challenges for bodies—
such as the Appeals Council and the NHC—that review cases from all regions. Second, the
agency should ensure that the pilot program is applied and enforced consistently within hearing
offices. Unless the program is consistently enforced, it is impossible to fairly assess its impact or

603

See An Examination of the Proposed “Closed Record,” supra note 6, at 769 (internal quotations omitted).
Implementing a pilot program “on a trial basis [is] entirely consistent with the pledge made by the original Social
Security Board that a continual effort be made to ‘preserve an attitude of self-criticism’ and to improve the SSA
hearing process on the basis of operational experience.” Id. at 773-74.
604

87

make well-informed program decisions or assessments. To facilitate programmatic consistency,
the agency should communicate the rules to ALJs and other employees (through training or other
internal mechanisms) and to claimants and representatives (through notification).605 The agency
should take appropriate steps to make sure all those who are affected by the rules know and
understand them.
Fifth, SSA should more closely monitor the Region I pilot program by collecting and
assessing data that is tailored to capturing key aspects of this program. Current data collection is
limited to nationwide case management databases developed for use in all regions. Thus, at
present, generic data fields—such as percentage of cases in post-hearing status, average case
processing times, and number of pending cases—must serve as stand-ins for more specific data
fields related to the pilot program. While some data exist that help assess the pilot program more
directly (e.g., data relating to issuance of hearing notices, volume and timeliness of evidentiary
submissions, remand codes tailored to the pilot program), more robust empirical assessment of
the impact of the pilot program would require more specific data.
Sixth, SSA would be wise to address, by whatever method it believes appropriate, the
longstanding concern voiced by some—including claimants representative organizations and
some ALJs—that rules regulating evidentiary submissions (such as the five-day rule) contravene
an ALJ’s duty to fully develop the record, as well his or her statutory obligation to base decisions
on “evidence adduced at the hearing.”606 We take no position here on the proper interpretation
of these legal requirements. Rather, we note this perceived tension because, for some, it appears
to inhibit application and enforcement of the five-day rule and its related provisions. This is an
area that calls out for agency guidance and clarification. Some ALJs—through interviews or
survey responses—expressed great reluctance to disallow any evidence because they viewed
limitations on evidentiary submission as running counter to their obligations. As well,
claimants’ representative organizations expressed opposition to the five-day rule in interviews
and written statements. To be effective, the five-day rule must be applied and consistently
enforced. SSA, by clarifying the consonance of the five-day rule (which includes good cause
exceptions to late submissions of evidence) with both ALJs’ statutory obligations and general
principles of procedural fairness, would help to allay some parties’ concerns and, thereby, greatly
aid program effectiveness.
Seventh, SSA should consider the rules and practices of other agencies. No adjudication
system is perfectly analogous to another. Nonetheless, procedures or evidentiary exceptions
used in another forum may offer ideas or approaches the agency has not previously considered.
Eighth, before SSA undertakes any changes, it should both consider existing
circumstances and anticipate future change. These considerations are especially important with
regards to obtaining medical records. The agency has undertaken an encouraging initiative—

605

One SSA official went so far as to say that closing and developing the record are not at cross purposes; rather, the
biggest issue is communicating relevant standards and having everyone “on the same page” regarding the standard’s
enforcement. See Senior Appeals Council Official Interview, supra note 169.
606
42 U.S.C. § 405(b)(1) (2011); see also id. § 1383(c)(1)(A) (2011). This concern has been voiced by members of
Congress and the representative community (and even ALJs) at least since 1988. See APPENDIX TO REPORT ON
REGION I PILOT PROGRAM, supra note 5, at App. C, pp. A-6 to A-8.
88

HIT—to facilitate the electronic receipt of all medical records. When fully implemented, this
program promises to make it easier for claimants to submit medical evidence; however, the
program is still in its infancy. Yet, absent additional resources, HIT is unlikely to grow quickly
enough to make much of an impact. In the meantime, SSA should continue to evaluate
technological changes or improvements—particularly with respect to medical records—that may
better facilitate the gathering of evidence by the agency and stakeholders.
Ninth, SSA should consider providing clarifying guidance to both ALJs and claimants
concerning application of the pilot program. For example, how much discretion do ALJs possess
to disallow evidence? What are the types of considerations that generally constitute good cause?
Does the five-day rule apply to evidence that did not exist before the hearing? Does the evidence
submission deadline apply to briefs, the claimants’ records, or both? Does “day” end at 5:00
p.m. or midnight?607 Irrespective of future revisions or modifications that SSA may decide to
make with respect to the pilot program, all relevant stakeholders would benefit from guidance on
these matters.
B. Other Observations
In addition to the foregoing guiding principles, several other matters arose during the
course of this study that warrant brief discussion. Our observations on these matters follow
below.
1. Evidentiary Submission and Record Closure: Good Cause Exceptions
The framing of appropriate rules—including exceptions—concerning the timing or nature
of evidentiary submissions are essential features of any adjudicatory process. Clarity and
fairness are needed for effective application and enforcement. Moreover, all would agree that,
there is a need for some form of “good cause” exception (or exceptions) when adjudicating
Social Security disability claims. Thus, when considering the pilot program’s good cause
exceptions, it is important to keep in mind what both ALJs and claimants’ representative groups
identify as two of the most challenging obstacles to timely submission of evidence: (1) delays in
receipt of evidence from medical providers, and (2) delays in receipt of evidence (or even
knowledge of the existence of evidence) from the claimant. Should SSA move forward with the
pilot program, it has a number of options to consider relating to exceptions, including retention
or revision of the program’s current “good cause” exceptions at the ALJ hearing level and before
the Appeals Council.
SSA could choose to implement the exceptions it proposed in its 2005 NPRM. Namely,
the ALJ has discretion to hold the record open if, at the hearing, the claimant notifies the ALJ
either that (1) he or she is aware of any additional evidence that could not be timely obtained and
submitted before or at the hearing (but must have been timely requested), or (2) he or she is
scheduled to undergo additional medical evaluation after the hearing for any impairment that
forms the basis of the disability claim.608 SSA could further require, as it proposed to in its 2007
NPRM, the claimant (or representative) to “submit with [his or her] additional evidence a written

607
608

For an example of computing time, see Rule 6 of the Federal Rules of Civil Procedure.
See supra Pt. II.C.1.d.
89

statement that explains why [he or she] believes [he or she] meet[s the exception].”609 In either
case, these proposed rules contemplated that ALJs should admit evidence of which they were
given notice by claimants or representatives within a reasonable timeframe before or after the
hearing. These exceptions could be supplemented by requiring the claimant or representative, if
possible, to inform the ALJ what they expect the evidence to demonstrate.
SSA could also adopt practice(s) or procedures akin to those used by other agencies in
their respective adjudication processes. If the claimant did not submit evidence timely, the
agency could require him or her to explain why the evidence was not provided earlier. If the
ALJ holds the record open for a CE or admits evidence from a medical or vocational expert
during the hearing, he or she might be allowed (or required) to permit the claimant to submit
evidence to refute any adverse medical evidence.
Finally, in lieu of its current rule, SSA could adopt a balancing test by which adjudicators
would weigh various enumerated factors in order to determine whether to admit evidence. Such
balancing tests are not unfamiliar to the agency.610 This option has the twin advantages of
providing specific direction regarding which factors ought to be considered, while permitting
flexibility by giving adjudicators discretion to respond to different circumstances differently.
Such discretion is not only consistent with the nature of judging, but also provides notice to
claimants and their representatives regarding which factors will be weighed to determine whether
“good cause” exists to admit late evidentiary submissions into the record. Moreover, such a rule
may be helpful at the appellate levels—both the Appeals Council and federal courts—since
appellate decisionmakers would know the factors the ALJ must apply and thus could assess
whether the ALJ applied them. Factors may include such things as: the ability of the claimant to
aid his or her claim (i.e., whether he or she has a limitation that inhibited evidentiary
submission); whether the claimant is represented, and if so, when the claimant retained
representation; when the request for evidence was made; whether the claimant or representative
was diligent in requesting evidence and seeking the ALJ’s help, if needed, to obtain it; the
materiality of the “late” evidence; and any other factors that may inhibit obtaining evidence.
2. Data Considerations
a. Data
As previously noted, due to data limitations, we could not directly evaluate the impact of
Region I’s pilot program through program-specific or program-generated data to determine
whether this program was achieving its programmatic goals. If SSA decides to retain the Region
I pilot program, it should collect data specifically tailored to key aspects of the pilot program in
order to facilitate ongoing assessment. Such data could be captured within existing agency
databases (e.g., CPMS, ARPS, eView, SDR), or through other means. New data fields might
include such information as: claimant waiver of hearing notices; good cause based requests to

609

2007 Proposed Rules, supra note 9, at 61,235 (this proposal applied to the appellate level, but could be
introduced at the ALJ level).
610
For example, when deciding the weight to give medical opinions that are not afforded “controlling weight,”
adjudicators must balance six factors, including a “catch all” provision. See 20 C.F.R. §§ 404.1527(d), 416.927(d)
(2012).
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submit untimely evidence at the ALJ hearing level and disposition of such requests; good cause
based requests to submit new evidence to the Appeals Council and disposition of such requests;
remand codes—related to both the Appeals Council and federal court levels—specifically
tailored to the pilot program (e.g., code indicating that an ALJ did not admit evidence into the
record, though such evidence met a good cause exception); volume, nature, and timing of
evidentiary submissions relative to hearing dates.
b. Technology
SSA should make certain that the proper technology is in place to support its program.
For example, it should ensure that ERE regularly refreshes so that the representative can see in
real-time the material that has been included in the evidentiary file.611 Having this ability would
likely cut down on duplicative records. SSA should likewise ensure that ERE properly time
stamps the documents so that records that have been submitted timely are not excluded from the
record.612 In addition, documents in the system are in TIFF format and are unsearchable. ALJs,
decision writers, and case technicians could more efficiently work with the material if it was in a
searchable format. Finally, a hearing office in Region I experienced a problem when the case
technicians tried to choose the evidence that should be included in the record based on the time it
had been submitted. Limitations existed both in CPMS itself and in the IT department’s
understanding of the hearing office’s needs. Technology should support the rule and
communication channels should exist among components in order to support people as they do
their jobs.
3. Conclusion
It is, of course, SSA’s decision on how best to proceed with the question of whether (and
how) to make permanent the Region I pilot program. Any examination of the pilot program
should involve an assessment of its impact on the fair, efficient, and accurate adjudication of
Social Security disability claims. The Administrative Conference believes that the Social
Security Administration has the experience and knowledge it needs to decide how best to
proceed with respect to the current pilot program in Region I, as well as possibilities for future
program revisions, improvements, and/or expansion.

611

ERE is designed to regularly refresh; however, some claimant representatives noted that it does not always do so.
ERE is also designed to time stamp documents. Several claimant representatives, however, stated that this does
not always occur.
612

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