HA 01260.059 Admitting Evidence Submitted Less Than Five Business Days Before the Hearing or At or After the Hearing

A. General

Subject to 20 CFR 404.935(b) and 416.1435(b), an administrative law judge (ALJ) may admit additional evidence into the record during the hearing. However, before admitting any proposed exhibit into the record during the hearing, the ALJ will identify the proposed exhibit and offer the claimant the opportunity to inspect the proposed exhibit and offer any objections or comments.

Subject to 20 CFR 404.935(b) and 416.1435(b), an ALJ may also admit additional evidence into the record after the hearing. If a claimant submits additional evidence after the hearing, an ALJ will apply the procedures in subsection B below to determine whether to consider the evidence. If the ALJ plans to admit additional evidence into the record after the hearing, see generally the instructions regarding proffer in Hearings, Appeals and Litigation Law (HALLEX) manual HA 01270.000.

Generally, if a claimant informs the Social Security Administration (SSA) about or submits evidence less than five business days before the date of the scheduled hearing, at, or after the hearing, the ALJ may decline to obtain or consider the evidence, unless the circumstances in 20 CFR 404.935(b) and 416.1435(b) apply. For the definition of business day, see HALLEX HA 01250.001 NOTE 3. The ALJ will determine whether the circumstances in 20 CFR 404.935(b) and 416.1435(b) apply using the instructions in subsection B below.

NOTE:

The agency's Notice of Hearing form notifies the claimant about his or her responsibility to inform the agency about or submit written evidence at least five business days before the scheduled hearing. See HALLEX HA 01230.015.

However, in title XVI cases other than those based on an application for benefits (e.g., age 18 redeterminations, continuing disability reviews, and terminations), an ALJ will accept any material evidence submitted on or before the date of the hearing decision using the procedures in HALLEX HA 01260.058. See 20 CFR 416.1435(c).

B. Determining Whether the Circumstances in 20 CFR 404.935(b) and 416.1435(b) Apply

1. Untimely Evidence Submitted Prior to Issuing the Hearing Decision

If the claimant informs SSA about evidence or submits evidence to SSA less than five business days before the date of the scheduled hearing, at, or after the hearing, but before the hearing decision is issued, the ALJ will accept the evidence if the circumstances in 20 CFR 404.935(b) and 416.1435(b) apply. Generally, under 20 CFR 404.935(b) and 416.1435(b), an ALJ will find that the circumstances in 20 CFR 404.935(b) and 416.1435(b) apply when a claimant did not timely submit the evidence because:

•
SSA action misled the claimant;
•
The claimant has a physical, mental, educational, or linguistic limitation(s) that prevented him or her from informing SSA about or submitting the evidence earlier; or
•
Some other unusual, unexpected, or unavoidable circumstances beyond the claimant's control prevented him or her from submitting the evidence earlier.

Examples of unusual, unexpected, or unavoidable circumstances include but are not limited to:

•
The claimant was seriously ill, and his or her illness prevented him or her from contacting the Agency in person, in writing, or through a friend, relative, or other person;
•
There was a death or serious illness in the claimant’s immediate family;
•
Important records were destroyed or damaged by fire or other accidental cause; or
•
The claimant, or appointed representative, actively and diligently sought evidence from a source and the evidence was not received or was received less than five business days prior to the hearing.

NOTE:

The ALJ will not develop or require evidence that shows that the claimant or appointed representative has actively and diligently sought evidence. However, when the claimant or representative shows that he or she made a good faith effort to timely request, obtain, and submit evidence, but he or she did not receive the records at least five business days before the date of the scheduled hearing because of circumstances outside his or her control, the ALJ will find that the claimant has actively and diligently sought evidence.

2. Untimely Evidence Submitted After Issuing the Hearing Decision

If the claimant submits evidence after the hearing decision is issued, the ALJ will forward the information to the Appeals Council (AC) if the claimant submitted a request for review of the ALJ's decision. If the claimant has not requested review by the AC, the ALJ may either:

•
Consider revising his or her decision using the appropriate procedures in HALLEX HA 01290.000; or
•
Return the evidence to the claimant noting in writing that the record is closed, but the claimant may request review by the AC.

C. Exhibiting and Decision Writing Considerations

If an ALJ finds that the claimant did not inform the agency about or submit evidence at least five business days before the scheduled hearing but the circumstances in 20 CFR 404.935(b) and 416.1435(b) apply, the ALJ will accept the evidence into the record and mark the evidence as an exhibit. The ALJ may, but is not required to, address in the decision why he or she considered the evidence.

However, if an ALJ does not find that the circumstances in 20 CFR 404.935(b) and 416.1435(b) apply, the ALJ will not exhibit the untimely evidence and will explain his or her reason for not considering it. The ALJ can provide these reasons on the record at the hearing, in a written ruling that the ALJ exhibits, or in the ALJ's decision. For example, the ALJ may briefly explain in the text of the decision that:

•
Additional evidence was submitted (specifically identifying the evidence, usually by source, date, and number of pages);
•
The claimant did not establish a reason under 20 CFR 404.935 and 416.1435 for not informing the agency about or submitting it within the required timeframes (addressing any specific reason raised by the claimant); and
•
Therefore, the ALJ declined to consider the evidence under 20 CFR 404.935 and 416.1435.

For additional instructions about writing the decision, see HALLEX HA 01280.025.

To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/2501260059

HA 01260.059 - Admitting Evidence Submitted Less Than Five Business Days Before the Hearing or At or After the Hearing (I-2-6-59) - 05/01/2017
Batch run: 04/20/2025
Rev:05/01/2017

Program Operations Manual System (POMS)