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THE 5 DAY RULE – Evidence Submission in Disability Hearings


There is a rule that requires all evidence be into the judge 5 days before the Social Security hearing. Even though the Social Security hearings are legally binding, the normal rules of evidence do not apply. However, there are still rules that everyone must follow.

In 2017, the SSA issued a law that controls when to submit evidence. The rule states you must submit any written evidence to the ALJ no later than 5 business days before your hearing.  If you do not comply with this rule, the ALJ may decline to consider the evidence unless certain circumstances excuse your ability to comply with the rule.

This is an important rule because it prevents delays in Social Security cases. It is also a good rule because at the time of the hearing, the judge will have read all of your records. You want your hearing to be fair. It can only be fair if the judge has all of the medical evidence to consider at the right time.

5 DAY RULE court room with gavel disability hearing


For some reason, most people don’t think about sending all of their medical evidence into the SSA until just prior to the hearing. In fact, most people also don’t think about sending in all of their medical evidence at the earlier stages of the Social Security appeal process. This is a big mistake. And, there are a couple of reasons for this.

First, most people who apply for benefits focus on only one medical condition. For example, if they have a severe spinal condition or they have had back surgery, then they only submit those records. However, the SSA is not just looking at one medical condition. Instead, they are looking at all of your physical and mental symptoms. When you don’t get treatment for your other medical conditions or you don’t submit other records, the SSA doesn’t have a full picture of your problems.

Most people, for example, who have a severe back condition, also suffer from some sort of mental issue, like anxiety. If you have anxiety, then you need to seek treatment for the condition. It is also possible that you are already seeing a counselor or getting medication from your doctor. But, instead of sending these records to the SSA, you might think that condition isn’t the reason you can’t work. So, you ignore it. That is a big mistake.

You must submit all of your records and do it on time. If you have a mental condition, then your symptoms can decrease your ability to do certain types of jobs. That is important for the SSA to know. But they don’t know it when you don’t submit the records or tell anyone that you are getting treatment for it.


The 5 day evidence rule helps you get all of your evidence into the judge on time. The other reason that people don’t get evidence in on time is they wait until the last minute to go to the doctor. This is another huge mistake.

We tell all of our clients to go to the doctor on a regular basis. This means going to the doctor weekly or monthly. Also, it depends on the type of medical condition that you have. If you don’t go to the doctor, then you won’t win your benefits. Because medical evidence is the most important evidence in your Social Security case.

Unfortunately, a lot of people don’t listen to this advice. Then, a few months before their SSA hearing, they panic. For example, perhaps your doctor told you to get an MRI. But, you put it off. However, a few months prior to the hearing, you realize you need it. So, you make the appointment.  Then it takes a few weeks for the results to come. By then, it is time for the hearing and maybe the evidence is late. Or, worse, maybe the MRI shows how severe your back pain is but because you didn’t get the MRI a year earlier, the judge changes your onset date for benefits to the day of the MRI.

By failing to get the proper medical evidence and get it into the SSA on time, you are hurting your chance to get SSI and SSDI benefits. Don’t let this happen to you.


If you need medical records that prove you can’t work, then make an appointment with your doctor. Your doctor can order tests, like an MRI or CT scan. Also, if you have a mental condition, there are mental tests you can take. This evidence helps you win your case. However, if you can’t afford to see a doctor, then you still have options.

On this website, we provide a list of free and low cost health resources. Click below to learn more about free and low cost options in your state:

Additionally, if you cannot afford treatment, you can request that the SSA send you to one of their doctors. You can visit one of SSA’s doctors for free. They will write a report about your medical conditions. Further information about your free SSA doctor exam. Also, more information is written below on this blog.

If the SSA sends you to a free exam with one of their doctors, then make sure that you bring the things that you use to help you walk or sit. For example, bring your cane or walker to the exam. Also, if you use a brace for your back or other part of your body, then wear it. Finally, remember that at the exam you could be under investigation.


There are very few reasons that will allow a judge to waive the five day rule. However, it is possible, but as you will see, it is rare.

For example, those circumstances that allow waiver of the rule include a situation where the actions of the SSA misled you. Or, you had physical or mental condition that made it so you could not submit the evidence earlier.

Additionally, you could argue some other unexpected event beyond your control kept you from sending the evidence on time.  If one of these circumstances exist, then the ALJ has the option to accept the evidence. Especially, if  the evidence, alone or with other evidence, would affect the outcome of your claim.


In order to avoid problems with your medical evidence, please know that there is a firm and fast date for you to submit all evidence. Likewise, the rule applies to all written evidence in your SSDI and SSI case.

All evidence is due 5 BUSINESS DAYS prior to the hearing. That is the rule. Is doesn’t mean 5 days, it means “business day.” So, weekends don’t count. If your hearing is on a Friday, for example, then you will need to submit your evidence on the Thursday of the week prior to you hearing.

To be safe, that means all of your evidence must be into the judge at least ONE WEEK prior to your hearing.

Please keep in mind that a holiday is NOT a business day. If you need help getting medical evidence or preparing your case for hearing in front of a judge, then contact our law firm. We will be happy to help you and answer your questions.


Your hearing will be held at the Office of Hearing Operations (“OHO”).  You will receive notice of the time and place of the hearing at least 30 days prior to the hearing. The judge will ask you questions. You are the main witness. The point of the hearing is for you to testify about your medical conditions that keep you from working.

The hearing is private. The court room is closed to the public. The only people who can come into your hearing, besides you, are the Judge, your lawyer, a Medical Expert (“ME”), and a Vocational Expert (“VE”). Additionally, there will also be a court reporter recording the hearing.

You are the witness for your own case. We do not usually call witnesses, like family members, to testify. We don’t do this because the ALJ will not give weight to the testimony of someone from your family. The reason is, your family has an interest in you winning SSD benefits.

If we do call a family member to testify, it is usually because the main witness has a mental illness that makes is hard to testify. Mental conditions, like schizophrenia or dementia, can cause memory issues that make it difficult for the witness to testify for themselves.

Likewise, if you have a seizures, it might be difficult for you to testify about it. Usually a person with seizures doesn’t remember them. Likewise, you may not know what is happening when you are having a seizure. For example, did you bite your tongue? How long did the seizure last? Usually, however, you remember how you feel after a seizure. This would be an example of how the testimony of a family member is useful at the Social Security hearing.


Even if you submit all of your medical information and fill out the SSA forms perfectly, you may still be denied by the SSA. Please remember that across the country 86 percent of Social Security claims are denied at the initial level and the second stage too.  This may be a shocking number, but it true. The only way to obtain your benefits is to soldier on. You must file an appeal as soon as possible.

Remember, when you submit your appeal, also submit all of your medical evidence. Make sure your evidence is up to date. Without all of your medical records, the SSA will make the wrong decision about your benefits.

If your case receives a denial at the second stage, then it is time to Request a Hearing. You can complete the Request for Hearing form online too, just like the you can any SSA appeal form. Learn more about appeal forms and SSA application forms. If you need the help of an attorney to appeal your case, then contact Cannon Disability Law today.


Many people wait to apply for SSD benefits because they think they are going to get better. For example, you may have hurt your back at work. After physical therapy and other treatment, your doctor might decide you need surgery. Perhaps you believe that once you have back surgery you will be able to return to work. Unfortunately, there are times when surgery does not work.

If you wait to apply for benefits until long after back surgery, you may miss out on months or years of SSD benefits. This is money that you need to support yourself while you are not working. Benefits can also provide Medicare or Medicaid, which is health insurance that you need to obtain surgery or get ongoing treatment for back pain.

If you have severe back pain or a severe mental condition and you cannot work, then you should apply for SSD benefits. You should not wait to apply. Some people wait, because they think they will get better. Don’t do that. Apply now. Social Security benefits are based upon the number of years you work and the amount of money you earn.  The amount of the monthly benefit is different for everyone. If you have not been able to recover after lengthy treatment, then you can probably win benefits.


You need a lawyer to help you at your Social Security hearing. Contact us. We have over 30 years in business.  Additionally, our law firm has won over 20,000 SSD and SSI cases. We offer a free review of your case. Also, it costs no money up front to hire us to help you win your case. This is because we work on a win or don’t get paid fee basis. Prior to your hearing, we meet with you to discuss the hearing questions. In order to win your hearing, you need to prepare yourself to testify.

Every person is different. Each person has unique issues that they face. Therefore, when we prepare you for your hearing, we focus on your unique symptoms. It is our job, as your legal team, to show the judge why your medical conditions prevent you from working. We will help you be ready for what questions the judge will ask at your hearing.


You need a law firm you can trust. You can trust us. If you want to learn more about the lawyers and staff at our firm, then read our About Us page. There you will find more information about our lawyers and staff.

Dianna Cannon has many years of experience helping clients win benefits. She has been an attorney for thirty years. Ms. Cannon also has law licenses in a number of states. For example, she has law licenses in California, Utah, Nevada, and Washington State. Read here, if you need more information about filing for SSD and SSI benefits in Utah. Our Nevada SSDI benefits page can give you information if you are seeking benefits in Nevada.

Additionally, Brett Bunkall has experience helping people obtain their SSI and SSDI benefits. He has a license to practice law in Idaho from the Idaho State Bar Association. Find out more about SSDI and SSI benefits in Idaho. Similarly, all of our lawyers and staff are experts. We also represent clients in Colorado and California. Colorado SSDI information can be found here. Likewise, you can learn more about California benefits information. You can trust us to help you win your benefits.

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