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SOCIAL SECURITY ADMINISTRATION
Office of Hearings and Appeals

HALLEX
Volume I

Transmittal No. I-2-28

Chapter: I-2-100, I-2-500, I-2-600 and I-2-700

Subject: Prehearing Analysis and Case Workup, Obtaining Evidence, Conduct of Hearings, and Posthearing Actions

Explanation of Content and Changes

This transmittal revises HALLEX Chapters I-2-100, I-2-500, I-2-600, and I-2-700 to clarify the procedures regarding questioning and cross-examining witnesses and posthearing evidence, and requesting duplicate cassette recordings or transcripts of hearings. It also makes editorial changes in various sections for purposes of clarity and consistency, e.g., it changes the term “securing evidence” to the more commonly used “obtaining evidence,” changes “Disability Determination Service” and “DDS” to the more commonly used “State agency,” inserts acronyms where appropriate, and rewords procedures where needed.

I-2-105 has been revised to make editorial changes.

I-2-110 has been revised to make editorial changes.

I-2-501 has been revised to include definitions of medical sources, treating sources, sources of record, and acceptable sources, and to make editorial changes.

I-2-510 through I-2-514 have been revised to make editorial changes.

I-2-518 has been revised to change the standard an ALJ uses to determine whether testimony from a treating source is needed from “full and fair inquiry into the matters at issue” to “inquire fully into the matters at issue,” and to make editorial changes.

I-2-520 through I-2-526 have been revised to make editorial changes.

I-2-528 has been revised to make editorial changes and to show (in subsection D.) that a claimant has a right to request a supplemental hearing when an ALJ receives new evidence after the hearing from a source other than the claimant.

I-2-530 has been revised to change the title from “Securing Expert Medical or Vocational Opinion” to “Medical or Vocational Expert Opinion — General,” and to make editorial changes. The procedures have been revised to clarify that live testimony with opportunity to question the ME or VE is the preferred method for obtaining ME or VE opinion; the ALJ may schedule a hearing or supplemental hearing notwithstanding a claimant's waiver of the right to appear at a hearing if the ALJ decides that the claimant's appearance and testimony are necessary to properly decide the case; and interrogatories may be used as an alternative to live testimony and oral questioning if the ALJ decides that interrogatories will provide a full inquiry into the matters at issue.

I-2-531 and I-2-532 have been revised to make editorial changes.

I-2-534 has been revised to change the title from “Use of a Medical Expert” to “When to Obtain Medical Expert Opinion,” and to make editorial changes.

I-2-536 has been revised to make editorial changes.

I-2-538 has been revised to change the title from “Securing Expert Medical Opinion at the Hearing” to “Obtaining Medical Expert Testimony,” and to make editorial changes.

I-2-539 has been revised to clarify that an ME who is called to testify at a hearing is not required to attend the entire hearing, but, if not, the ALJ is required, before the ME testifies, to summarize on the record any part of the opening statement or relevant testimony that the ME missed.

I-2-540 has been revised to: 1) change the title from “Securing Expert Medical Opinion After the Hearing” to “Obtaining Medical Expert Opinion After the Hearing,” 2) include a statement that live testimony with opportunity to orally question the ME is the preferred method for obtaining ME opinion, and 3) modify the factors an ALJ must weigh when determining the most appropriate method to obtain ME opinion after the initial hearing. In addition, the procedures in I-2-540 D, New Evidence Received After an ME has Furnished Opinion Evidence, have been moved to the new section I-2-545, Action When ALJ Receives New Evidence After a Medical Expert Has Provided an Opinion.

I-2-542 has been revised to change the title from “Securing Expert Medical Opinion through Interrogatories” to “Obtaining Medical Expert Opinion Through Interrogatories,” and to make editorial changes. The procedures have been revised to clarify that live testimony with opportunity to question the ME is the preferred method for obtaining ME opinion; due process does not require a supplemental hearing at the time the ALJ proposes to use interrogatories in lieu of live testimony; the claimant or representative may object to the use of interrogatories in general, or object to any particular interrogatory, or propose other interrogatories; and the ALJ must rule on any objection and provide rationale for the ruling in the decision.

I-2-544 has been revised to show that if a claimant or representative, after examining an ME's answers to interrogatories, requests a supplemental hearing, the ALJ must schedule a supplemental hearing. If the claimant requests the opportunity to question the ME at the supplemental hearing, the ALJ will determine whether testimony is the most appropriate method to obtain the ME evidence. If the ALJ requests the ME to appear at a supplemental hearing and the ME declines to appear, the ALJ will determine if the claimant should be afforded use of a subpoena to compel the ME to appear.

I-2-545, Action When ALJ Receives New Evidence After a Medical Expert Has Provided an Opinion, has been added to include the procedures being moved from I-2-540 D. This will make the procedures follow rather than precede the general discussion of obtaining ME opinion through interrogatories in I-2-542. In addition, the procedures have been revised to show that the same factors which guide the ALJ's initial decision regarding how to obtain ME opinion after the hearing should also guide the ALJ's decision on how to obtain ME opinion in response to new evidence.

I-2-548 has been revised to make editorial changes.

I-2-550 has been revised to change the title from “Use of a Vocational Expert” to “When to Obtain Vocational Expert Opinion;” to refer to Acquiescence Ruling (AR) 90-3(4), Smith v. Bowen; and to make editorial changes.

I-2-552 has been revised to make editorial changes.

I-2-554 has been revised to change the title from “Securing Expert Vocational Opinion at the Hearing” to “Obtaining Vocational Expert Testimony,” and to make editorial changes.

I-2-555 has been revised to clarify that a VE who is called to testify at a hearing is not required to attend the entire hearing, but the ALJ is required before the VE testifies to summarize on the record any part of the opening statement or relevant testimony that the VE missed.

I-2-556 has been revised to: 1) change the title from “Securing Expert Vocational Opinion After the Hearing” to “Obtaining Vocational Expert Opinion After the Hearing,” 2) include a statement that live testimony with opportunity to orally question the VE is the preferred method for obtaining VE opinion, and 3) modify the factors an ALJ must weigh when determining the most appropriate method to obtain VE opinion after the initial hearing. In addition, the procedures in I-2-556 D, New Evidence Received After a VE has Furnished Opinion Evidence, have been moved to the new section I-2-560, Action When ALJ Receives New Evidence After a Vocational Expert Has Provided an Opinion.

I-2-558 has been renumbered I-2-557 and revised to change the title from “Securing Expert Vocational Opinion through Interrogatories” to “Obtaining Vocational Expert Opinion Through Interrogatories,” and to make editorial changes. The procedures have been revised to clarify that live testimony with opportunity to question the VE is the preferred method for obtaining VE opinion; due process does not require a supplemental hearing at the time the ALJ proposes to use interrogatories in lieu of live testimony; the claimant or representative may object to the use of interrogatories in general, or object to any particular interrogatory, or propose other interrogatories; and the ALJ must rule on any objection and provide rationale for the ruling in the decision.

I-2-560 has been renumbered I-2-558 and revised to make editorial changes, and to show that if a claimant or representative, after examining a VE's answers to interrogatories, requests to orally question the VE at a supplemental hearing, the ALJ must schedule a supplemental hearing. If the claimant requests the opportunity to question the VE at the supplemental hearing, the ALJ will determine whether live testimony is the most appropriate method to obtain the VE evidence. If the ALJ requests the VE to appear at a supplemental hearing and the VE declines to appear, the ALJ will determine if the claimant should be afforded use of a subpoena to compel the VE to appear.

I-2-560, Action When ALJ Receives New Evidence After a Vocational Expert Has Provided an Opinion, has been added to include the procedures we are moving from I-2-556 D. This will make the procedures follow rather than precede the general discussion of obtaining VE opinion through interrogatories in I-2-557. In addition, the procedures have been revised to show that the same factors which guide the ALJ's initial decision regarding how to obtain VE opinion after the hearing should also guide the ALJ's decision on how to obtain VE opinion in response to new evidence.

I-2-561 through I-2-576 have been revised to make editorial changes.

I-2-577 has been revised to state that ALJs should request a transcript of a hearing cassette only when he or she would not be able to reach a well-reasoned defensible decision without it, and that all transcript requests should be sent directly to the Office of Civil Actions' Contracts Branch. This section has been further revised to add procedures for ALJs and HO staffs to follow when requesting a transcript, and procedures for ALJs and HO staffs to follow when a claimant, representative, or third party, requests a transcript or duplicate hearing cassette.

I-2-578 has been revised to show that MEs and VEs who will not appear voluntarily may be subpoenaed to appear under the same standard applicable to any witness, to provide a protocol for ALJs to use when evaluating a subpoena request, and to refer to AR 91-1(5), Liddy v. Sullivan.

I-2-580 and I-2-582 have been revised to make editorial changes.

I-2-590 Samples, Sample 2, has been revised to show that the ALJ's decision to grant a claimant's request for a supplemental hearing in response to the proffer of posthearing evidence is required, and to make editorial changes.

I-2-590 Samples, Sample 3, has been revised to show that the ALJ's decision to grant a claimant's request for a supplemental hearing in response to the proffer of posthearing evidence is required, and to make editorial changes.

I-2-590 Samples, Sample 8, has been revised to give the bullets in paragraph 2 a more logical flow, and to reflect that there is no automatic right to a supplemental hearing when an ALJ proposes to use interrogatories in lieu of live testimony, and the claimant will be given the opportunity to request a supplemental hearing after the ME or VE responds to the interrogatories.

I-2-590 Samples, Sample 11, TRANSCRIPT REQUEST FORM, has been added.

I-2-660 through I-2-676 have been revised to make editorial changes.

I-2-678 has been revised to show that a claimant will be given the opportunity to request a supplemental hearing when an ALJ receives additional evidence after the hearing from a source other than the claimant, and to make editorial changes.

I-2-680 has been revised to show (in subsection B.) that a supplemental hearing is necessary when an ALJ receives additional evidence after the hearing from a source other than the claimant and the claimant requests a supplemental hearing, and to make editorial changes.

I-2-701 has been revised to make editorial changes.

I-2-710 has been revised to change the cross-reference from “See I-2-500ff, Securing Evidence,” to “See I-2-500ff, Obtaining Evidence,” and to make editorial changes.

I-2-715 and I-2-720 have been revised to make editorial changes.

I-2-730 has been revised to explain (in subsection I.) the standard under which a claimant will be afforded use of subpoena and consequent cross-examination of a proposed witness, and to make editorial changes.

Remove

Remove from Chapter I-2-100:

I-2-101 Prehearing Case Analysis and Workup — General, through I-2-110 C., dated June 30, 1993 (4 pages).

Remove from Chapter I-2-500:

Table of Contents I-2-501 through I-2-590, dated June 30, 1993 (2 pages).

I-2-501 Evidence — General, through I-2-590 Samples, Sample 10, Letter to Proffer the Responses to the Interrogatories to the Claimant or Representative, dated June 30, 1993 (68 pages).

Remove from Chapter I-2-600:

I-2-656 cont., through I-2-680 A., dated June 30, 1993 (8 pages).

Remove from Chapter I-2-700:

I-2-701 Posthearing Actions — General, and I-2-720 Posthearing Evidence Proposed by the Claimant, dated June 30, 1993 (2 pages).

I-2-730 G. cont., through I-2-735 D. 2 dated June 30, 1994 (6 pages)

Insert

Insert in Chapter I-2-100:

I-2-101 Prehearing Case Analysis and workup — General, through I-2-110 C. dated April 29, 1994 (4 pages).

Insert in Chapter I-2-500:

Table of Contents I-2-501 through I-2-590, dated April 29, 1994 (3 pages).

I-2-501 Evidence — General, through I-2-590 Samples, Sample 11, Transcript Request Form (78 pages).

Insert in Chapter I-2-600:

I-2-658 through I-2-680 A., dated April 29, 1994 (8 pages).

Insert in Chapter I-2-700:

I-2-701 Posthearing Actions — General, and I-2-720 Posthearing Evidence Proposed by the Claimant, dated April 29, 1994 (2 pages).

I-2-730 F. cont., dated June 30, 1993 through I-2-735 D. 2. dated April 29, 1994 (6 pages).

Date: April 29, 1994