Notice Regulations

July 10, 2019

SSA has regulations that require SSA to provide 75 days notice of a hearing.  Additionally, claimants (and their appointed representatives) must let SSA know about missing records 5 days prior to the hearing or the judge does not have to admit the evidence.  Below is a summary of how SSA has interpreted one set of facts:

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The claimant and representative were sent a noticeof hearing 64 days before the hearing. On the dateof the hearing, the representative submitted a questionnaire from a treating provider which the provider did not send to the representative untilless than five business days before the hearing,despite multiple requests. In her decision, the ALJ excluded the questionnaire as untimely. The ALJ found that the representative’s letter did not satisfy the “inform” provision of the regulations because although it explained that the questionnaire had been sent but not received it did not provide additional information about what the medical source statement included, and also found that there was no good cause to admit the questionnaire.

The court held that “while the 75-day notice of hearing and the five-day rule for submission ofevidence are two separate regulatory provisions, [they] are not distinct from one another.” As the Federal Register notice of the rule indicates, SSA intended the two provisions to balance each other. The questionnaire was received by SSA 11 days before the hearing should have been scheduled if itwere scheduled 75 days after the notice was sent,and is therefore “arguably timely.” In addition, the ALJ had not issued a decision when the evidence was received “and thus is could have been fairlyconsidered under the Regulations without sacrificing efficiency.” Since “the Commissioner’s determinationdid not result from the application of proper legal rules and was not supported by substantial evidence,” the case was remanded.

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