(a) When you submit your request for hearing, you should also submit information or evidence as required by § 416.912 or any summary of the evidence to the administrative law judge. Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in § 416.912, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence unless the circumstances described in paragraph (b) of this section apply.
(b) If you have evidence required under § 416.912 but you have missed the deadline described in paragraph (a) of this section, the administrative law judge will accept the evidence if he or she has not yet issued a decision and you did not inform us about or submit the evidence before the deadline because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to:
(i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other accidental cause; or
(iv) You actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing.
(c) Claims Not Based on an Application For Benefits. Notwithstanding the requirements in paragraphs (a)-(b) of this section, for claims that are not based on an application for benefits, the evidentiary requirement to inform us about or submit evidence no later than 5 business days before the date of the scheduled hearing will not apply if our other regulations allow you to submit evidence after the date of an administrative law judge decision.
[81 FR 90994, Dec. 16, 2016
Notes of Decisions
Candelaria v. Commissioner of Social Security (2019)
nywd · cites it 9×
“Under 20 C.F.R. § 416.1435 (b), if a claimant misses that deadline but submits or informs the ALJ about written evidence before the hearing decision is issued, the ALJ will accept the evidence if one of the enumerated exceptions is met.”
Pladas v. Commissioner of Social Security (2020)
nywd · cites it 7×
“’s duty to develop the record and the duty of claimants appearing for hearings before the SSA under the “five-day rule” found in 20 C.F.R. § 416.1435 (a). This rule requires that Plaintiff, as claimant, “submit or inform SSA about written evidence at least five business days…”
(SS) Becerra v. Commissioner of Social Security (2024)
caed · cites it 6×
“) Plaintiff contends this constitutes an “unusual, unexpected, or 25 unavoidable circumstance beyond the claimant’s control,” and the evidence should have been accepted 26 pursuant to 20 C.F.R. §§ 416.1435 , 404.935. (Id.) 27 28 1 Although Plaintiff refers to 20 C.”
Owsley v. Berryhill (2020)
moed · cites it 6×
“935 and 20 C.F.R. § 416.1435 . These regulations,2 known as the “5-day rule” provide as follows: (a) When you submit your request for hearing, you should also submit information or evidence as required by § 404.”
Armstrong v. Kijakazi (2022)
mowd · cites it 6×
“; 20 C.F.R. § 416.1435 (a)-(b). Plaintiff’s counsel indicated she understood the five-day rule but explained she did not find out about the evaluation until the day before the hearing.”
Perez Parmer v. Commissioner of Social Security (2021)
nywd · cites it 6×
“14-1 at 22-28) 11 Under SSA's regulations at 20 C.F.R. § 416.1435 (a), an individual or his counsel must inform SSA about or submit written evidence at least five business days prior to a scheduled hearing with certain exceptions set forth in 20 C.”
(SS)Stetson v. Commissioner of Social Security (2020)
caed · cites it 4×
“20 C.F.R. § 416.1435 (a). The ALJ may also accept information after the five-day deadline 19 prior to issuing the hearing decision under circumstances enumerated in 20 C.”
Cherry v. Barnhart (2022)
mdd · cites it 4×
“” 20 C.F.R. § 416.1435 . This last category includes serious illness of the claimant or the claimant’s family, damaged or destroyed records, or a source’s failure to submit records on time despite the claimant’s “active[] and diligent[]” efforts.”
Zongos v. Saul (2019)
nynd · cites it 4×
“20 C.F.R. § 416.1435 (a)-(b). In her decision, the ALJ explained that she declined to admit the evidence from the Brownell Center because Plaintiff’s representative submitted it the day prior to the hearing “indicating that these had been in his files but had been missed…”
— 20 C.F.R. § 416.1435(a) — 3 cases
(SS) Becerra v. Commissioner of Social Security (2024)
caed
“) Plaintiff contends this constitutes an “unusual, unexpected, or 25 unavoidable circumstance beyond the claimant’s control,” and the evidence should have been accepted 26 pursuant to 20 C.F.R. §§ 416.1435 , 404.935. (Id.) 27 28 1 Although Plaintiff refers to 20 C.”
— 20 C.F.R. § 416.1435(b) — 8 cases
(SS) Becerra v. Commissioner of Social Security (2024)
caed
“) Plaintiff contends this constitutes an “unusual, unexpected, or 25 unavoidable circumstance beyond the claimant’s control,” and the evidence should have been accepted 26 pursuant to 20 C.F.R. §§ 416.1435 , 404.935. (Id.) 27 28 1 Although Plaintiff refers to 20 C.”
Armstrong v. Kijakazi (2022)
mowd
“; 20 C.F.R. § 416.1435 (a)-(b). Plaintiff’s counsel indicated she understood the five-day rule but explained she did not find out about the evaluation until the day before the hearing.”
— 20 C.F.R. § 416.1435(b)(3)(iv) — 1 case
— 20 C.F.R. § 416.1435(c) — 1 case
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