I-2-5-28.Action Following Receipt of Requested Evidence

Last Update: 9/28/05 (Transmittal I-2-68)

When requested evidence is received, the ALJ or the HO staff under the ALJ's direction must review the evidence for completeness and responsiveness and determine whether the evidence is material and relevant.

NOTE:

See I-2-6-58 for a discussion of what evidence is considered “material.”

A. Requested Evidence Is Complete and Responsive

If the requested evidence is material and relevant to the issues of the case and complete and responsive, the HO staff will:

  • mark the new evidence as an exhibit (See I-2-1-15, Exhibits);

  • prepare and mark the professional qualifications of each source as an exhibit (See I-2-1-30, Qualifications of Health Care Professionals); and

  • review the total record for sufficiency of the evidence and any material conflicts.

B. Requested Evidence Is Incomplete or Unresponsive

If evidence requested through a State agency is incomplete or unresponsive, the HO staff will follow the procedures in I-2-5-14 C. 3., Problem With the State Agency's Response.

If evidence requested directly from a treating or other source is incomplete or unresponsive, contact the source again, either directly or through the claimant or the representative, to determine if additional evidence is available. Request assistance from the State agency if necessary.

C. Requested Evidence is Not Material and Relevant

If evidence requested through a State agency or directly from a treating or other source is complete and responsive but is not material and relevant, the HO staff will not mark the evidence as an exhibit. The evidence should be placed in the “C” section of the Modular Disability Folder.

D. Disclosure of New Evidence Before the Hearing

If an ALJ receives new evidence before the hearing from a source other than the claimant, and the ALJ proposes to enter the evidence into the record as an exhibit, the ALJ must give the claimant and the claimant's representative (if any) an opportunity to review the evidence before the hearing. (See I-2-1-35, Examination of the Proposed Exhibits and Other Claim File Material.)(See also I-5-1-16.III.E. – Conducting a Hearing where a Participant Appears by VTC.)

If the new evidence indicates that the claimant has a serious illness of which the claimant and the treating source may not be aware, the ALJ will exercise appropriate discretion to avoid adversely affecting the claimant's medical situation, while proceeding with the actions necessary to protect the claimant's right to due process.

E. Disclosure of New Evidence After the Hearing

If an ALJ receives new evidence after the hearing from a source other than the claimant, and the ALJ proposes to enter the evidence into the record as an exhibit, the ALJ must give the claimant and the claimant's representative the opportunity to review and comment on the evidence and to request a supplemental hearing unless:

  • the claimant or the representative knowingly waived the right to review the evidence and to appear at a supplemental hearing, or

  • the ALJ is prepared to issue a fully favorable decision.

See I-2-7-30, Proffer Procedures, through I-2-7-35, Entering Posthearing Evidence; I-2-5-91 Sample Letter to Representative Enclosing Copy of New Evidence; I-2-5-92 Sample Letter to Unrepresented Claimant Enclosing Copy of New Evidence, and I-2-6-99, Sample Waiver By Claimant of Right to Inspect Evidence After the Hearing.)