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Post by Deleted on Mar 24, 2015 8:20:09 GMT -5
Regulation changes regarding the submission of evidence: www.gpo.gov/fdsys/pkg/FR-2015-03-20/pdf/2015-05921.pdfI'm still parsing the language, but this looks like some very good news for the ALJs and soon-to-be ALJs. The section that catches my eye the most: § 405.331 Submitting evidence to an administrative law judge. (a) When you submit your request for hearing, you should also submit information or evidence as required by §§ 404.1512 or 416.912 of this chapter or any summary of the evidence to the administrative law judge. You must submit any written evidence no later than 5 business days before the date of the scheduled hearing. * * * I like the compulsory nature of "must submit...five business days...before hearing." It will be interestiing to see how this trickles down through HALLEX and so on. Will our offices reject any evidentiary filing made the day before hearing? Or, will it be up to the ALJs to reject late evidence? Non-represented claimants will need some sort of notice that they have to submit before five days, because they routinely show up with something in their hands. What effect, if any, will this have on the Appeals Counsel and their interpretation of "new and material"? Also noting the changes seem to prohibit a representative from failing to submit evidence which is harmful to the claimant's case...
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Post by JudgeRatty on Mar 24, 2015 8:26:57 GMT -5
At least we are headed in the right direction. The AC interpretation of "material" as we all know is not consistent with that definition used in every other court. It seems if it is "new" in that it was newly submitted but yet was available month to years prior, they remand. Let's hope these new changes also change the reasons they remand.
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Post by saaao on Mar 24, 2015 8:34:56 GMT -5
Regulation changes regarding the submission of evidence: www.gpo.gov/fdsys/pkg/FR-2015-03-20/pdf/2015-05921.pdfI'm still parsing the language, but this looks like some very good news for the ALJs and soon-to-be ALJs. The section that catches my eye the most: § 405.331 Submitting evidence to an administrative law judge. (a) When you submit your request for hearing, you should also submit information or evidence as required by §§ 404.1512 or 416.912 of this chapter or any summary of the evidence to the administrative law judge. You must submit any written evidence no later than 5 business days before the date of the scheduled hearing. * * * I like the compulsory nature of "must submit...five business days...before hearing." It will be interestiing to see how this trickles down through HALLEX and so on. Will our offices reject any evidentiary filing made the day before hearing? Or, will it be up to the ALJs to reject late evidence? Non-represented claimants will need some sort of notice that they have to submit before five days, because they routinely show up with something in their hands. What effect, if any, will this have on the Appeals Counsel and their interpretation of "new and material"? Also noting the changes seem to prohibit a representative from failing to submit evidence which is harmful to the claimant's case... I know the five day evidence submission rule has been in effect in the New England area for a while now. Looks like they are finally rolling it out nationwide. Also, from what I had heard, remands for "new and material" evidence had dropped to almost nothing in New England.
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Post by JudgeRatty on Mar 24, 2015 8:40:42 GMT -5
This is great news!
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Post by hopefalj on Mar 24, 2015 9:18:01 GMT -5
I believe region I has been using a good cause finding for allowing untimely evidence on occasion, although I may have misunderstood. Requiring it to be submitted five days before the hearing is a game changer, though.
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Post by Deleted on Mar 24, 2015 9:53:11 GMT -5
The question in my mind is what do I do (after April 20th0, when, on the day of hearing, counsel brings an otherwise valid and useful medical record and asks that it be submitted into evidence. My guess is that I will have to find it inadmissable due to untimely filing, and then submit the record as part of counsel's objection to that finding, and then decline to consider the exhibit in my decision. There doesn't appear to be a lot of wiggle room in "must submit."
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Post by gary on Mar 24, 2015 10:00:18 GMT -5
The question in my mind is what do I do (after April 20th0, when, on the day of hearing, counsel brings an otherwise valid and useful medical record and asks that it be submitted into evidence. My guess is that I will have to find it inadmissable due to untimely filing, and then submit the record as part of counsel's objection to that finding, and then decline to consider the exhibit in my decision. There doesn't appear to be a lot of wiggle room in "must submit." I think that would be the result. If it didn't include the word "scheduled" before "hearing," you might have discretion to continue the hearing for at least five days if you really wanted to be able to consider the evidence, but as the reg is written I would say you have to exclude it. (I am a NODAR and so apologize if any of my terminology is inapplicable to ODAR hearings.)
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Post by milagros on Mar 24, 2015 10:11:11 GMT -5
I think section 405.331 only applies to Region 1. (Appendix to Subpart A of Part 405--Claims that will be handled under the procedures in this part. (a) We will apply the procedures in the part to disability claims filed in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, or Connecticut.)
The rest of us are stuck with 404.935: Each party shall make every effort to ensure that the ALJ receives all of the evidence...at the time and place set for the hearing.
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Post by JudgeRatty on Mar 24, 2015 10:18:31 GMT -5
The question in my mind is what do I do (after April 20th0, when, on the day of hearing, counsel brings an otherwise valid and useful medical record and asks that it be submitted into evidence. My guess is that I will have to find it inadmissable due to untimely filing, and then submit the record as part of counsel's objection to that finding, and then decline to consider the exhibit in my decision. There doesn't appear to be a lot of wiggle room in "must submit." I think that would be the result. If it didn't include the word "scheduled" before "hearing," you might have discretion to continue the hearing for at least five days if you really wanted to be able to consider the evidence, but as the reg is written I would say you have to exclude it. (I am a NODAR and so apologize if any of my terminology is inapplicable to ODAR hearings.) As for continuing the case at least 5 days... The cases are scheduled so many months in advance that rescheduling would delay it several months. It is possible to squeak one in here and there but the process is not very accommodating for that.
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Post by gary on Mar 24, 2015 10:25:15 GMT -5
I think that would be the result. If it didn't include the word "scheduled" before "hearing," you might have discretion to continue the hearing for at least five days if you really wanted to be able to consider the evidence, but as the reg is written I would say you have to exclude it. (I am a NODAR and so apologize if any of my terminology is inapplicable to ODAR hearings.) As for continuing the case at least 5 days... The cases are scheduled so many months in advance that rescheduling would delay it several months. It is possible to squeak one in here and there but the process is not very accommodating for that. Thats just some of the stuff I don't know. I think ultimately that would be moot since I would take "scheduled hearing" to be the one the rep showed up at with the new evidence.
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Post by moopigsdad on Mar 24, 2015 11:17:33 GMT -5
The question in my mind is what do I do (after April 20th0, when, on the day of hearing, counsel brings an otherwise valid and useful medical record and asks that it be submitted into evidence. My guess is that I will have to find it inadmissable due to untimely filing, and then submit the record as part of counsel's objection to that finding, and then decline to consider the exhibit in my decision. There doesn't appear to be a lot of wiggle room in "must submit." If you read the whole rule, not just the changes listed, you see that there are still exceptions for an ALJ to determine whether to accept or deny the acceptance of any new evidence within the five days prior to the hearing or after the hearing. It will be an ALJ's call which is then open to review by the AC or Federal Courts to determine if the ALJ was correct in refusing admission of the evidence or whether the claimant or representative met the exceptions listed in subsections (b) and (c) of the rule.
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Post by bowser on Mar 24, 2015 12:07:16 GMT -5
The question in my mind is what do I do (after April 20th0, when, on the day of hearing, counsel brings an otherwise valid and useful medical record and asks that it be submitted into evidence. My guess is that I will have to find it inadmissable due to untimely filing, and then submit the record as part of counsel's objection to that finding, and then decline to consider the exhibit in my decision. There doesn't appear to be a lot of wiggle room in "must submit." I question how workable this is, or how it is anything other than a basis for encouraging reps to not be disrespectful. My understanding is that ALJs have the burden of ensuring that the record is fully and fairly developed whether a claimant is represented or not. And I'm pretty confident there is a longstanding practice of not disadvantaging claimants who happen to have incompetent or unprofessional reps. Just don't see how an ALJ declines to admit clearly relevant evidence, and how to handle things in a way that doesn't cause additional headaches - scheduling supplemental hearings, denying attorney fees, etc. Where are the teeth to the 5-day requirement? What are the penalties for reps who decline to comply? I'm sure next month's OCEP willl make all crystal clear.
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Post by Deleted on Mar 24, 2015 12:32:42 GMT -5
I think section 405.331 only applies to Region 1. (Appendix to Subpart A of Part 405--Claims that will be handled under the procedures in this part. (a) We will apply the procedures in the part to disability claims filed in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, or Connecticut.) The rest of us are stuck with 404.935: Each party shall make every effort to ensure that the ALJ receives all of the evidence...at the time and place set for the hearing. Hmmm... I may be missing something. The PDF I am looking at doesn't contain an exception about New England States. Can you tell me where you found this?
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Post by Deleted on Mar 24, 2015 12:55:15 GMT -5
Ah, found it. But, does it look like the New England exception may just apply to Subpart A? The change in 405.331 is in Subpart D?
APPENDIX TO SUBPART A OF PART 405--CLAIMS THAT WILL BE HANDLED UNDER THE PROCEDURES IN THIS PART
(a) We will apply the procedures in this part to disability claims (as defined in § 405.5) filed in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, or Connecticut.
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Post by Deleted on Mar 24, 2015 13:01:17 GMT -5
Thought I would post the old section and the new side by side...it helps...
OLD: § 405.331 Submitting evidence to an administrative law judge. (a) You should submit with your request for hearing any evidence that you have available to you. Any written evidence that you wish to be considered at the hearing must be submitted no later than five business days before the date of the scheduled hearing.
NEW: § 405.331 Submitting evidence to an administrative law judge. (a) When you submit your request for hearing, you should also submit information or evidence as required by §§ 404.1512 or 416.912 of this chapter or any summary of the evidence to the administrative law judge. You must submit any written evidence no later than 5 business days before the date of the scheduled hearing.
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Post by moopigsdad on Mar 24, 2015 13:07:11 GMT -5
Thought I would post the old section and the new side by side...it helps... OLD: § 405.331 Submitting evidence to an administrative law judge. (a) You should submit with your request for hearing any evidence that you have available to you. Any written evidence that you wish to be considered at the hearing must be submitted no later than five business days before the date of the scheduled hearing. NEW: § 405.331 Submitting evidence to an administrative law judge. (a) When you submit your request for hearing, you should also submit information or evidence as required by §§ 404.1512 or 416.912 of this chapter or any summary of the evidence to the administrative law judge. You must submit any written evidence no later than 5 business days before the date of the scheduled hearing. ROBG here is the rest of the regulation you left our for both the old and new regs. You can't ignore the .... after the old and new regulations shown there, as it signifies there is more to the regulations than printed. "If you do not comply with this requirement, the administrative law judge may decline to consider the evidence unless the circumstances described in paragraphs (b) or (c) of this section apply. (b) If you miss the deadline described in paragraph (a) of this section and you wish to submit evidence during the five business days before the hearing or at the hearing, the administrative law judge will accept the evidence if you show that: (1) Our action misled you; (2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from submitting the evidence earlier; or (3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from submitting the evidence earlier. (c) If you miss the deadline described in paragraph (a) of this section and you wish to submit evidence after the hearing and before the hearing decision is issued, the administrative law judge will accept the evidence if you show that there is a reasonable possibility that the evidence, alone or when considered with the other evidence of record, would affect the outcome of your claim, and: (1) Our action misled you; (2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from submitting the evidence earlier; or (3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from submitting the evidence earlier." This is still part of Section 405.331, but the part about the differences in how Sections 404.1512 and 416.1912 are worded and apply is added to the new regulations when not a part of the old rule. Sure some of the language is slightly different, but it has the same onus on the ALJ to decide whether to allow or disallow evidence submitted later than 5 days prior to the hearing.
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Post by owl on Mar 24, 2015 15:13:32 GMT -5
Ah, found it. But, does it look like the New England exception may just apply to Subpart A? The change in 405.331 is in Subpart D? APPENDIX TO SUBPART A OF PART 405--CLAIMS THAT WILL BE HANDLED UNDER THE PROCEDURES IN THIS PART (a) We will apply the procedures in this part to disability claims (as defined in § 405.5) filed in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, or Connecticut. The New England exception may be physically contained in an appendix to a subpart, but it states that it applies to "this part," i.e., the whole part, i.e., Part 405. The pre-amendment version of 405.331 also contained a 5-day deadline; all they've done is tweak the language a bit. So I'm pretty sure the 5-day rule is staying confined to Region I. If it truly were going to be expanded nationwide, it probably would have drawn some comments (and most likely, vigorous protest from the disability advocate communities) and hence some discussion thereof in the final rulemaking notice. The absence of both compels the conclusion that for the rest of us not in Region I, the "when" part of the submission-of-evidence rules is remaining unchanged. Also note the conspicuous absence of any mention of a 5-day limitation in the new revisions to 404.935 and 416.1435.
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