I-2-5-1.Evidence — General
Last Update: 4/15/15 (Transmittal I-2-138)
The claimant must inform us about or submit to the agency all evidence, in its entirety, known to him or her that relates to whether he or she is blind or disabled. See 20 CFR 404.1512 and 416.912. If the claimant has a representative, then the representative must help the claimant obtain the information or evidence that the claimant must submit. See 20 CFR 404.1740(b)(1) and 416.1540(b)(1). As set forth in our regulations, we will assist the claimant in developing the record when appropriate. See 20 CFR 404.1512(d)-(e) and 416.912(d)-(e).
Evidence generally does not include a representative's analysis of the claim or oral or written communications between a claimant and his or her representative that are subject to the attorney-client privilege, or that would be subject to the attorney-client privilege if a non-attorney representative was an attorney. See 20 CFR 404.1512(b) and 416.912(b).
If a representative has a pattern of not submitting evidence that relates to the claim, or if the claimants of a particular representative develop a pattern of not submitting evidence to us or not informing us about evidence that relates to their claims, an administrative law judge (ALJ) will consider whether circumstances warrant a referral to the Office of the General Counsel (OGC) as a possible violation of our rules. See Hearings, Appeals, and Litigation Law (HALLEX) manual I-1-1-50 for instructions on making referrals to OGC.
The ALJ may also decide that additional medical or non-medical evidence is needed to make a proper decision in a case. In this circumstance, the ALJ will make all reasonable attempts to fully and fairly develop the record. The ALJ, or hearing office (HO) staff, will add to the record and exhibit documentation of all attempts to obtain the evidence.
In addition, the ALJ may decide that witnesses are needed to fully and fairly evaluate the issues in a case. The ALJ and HO staff will schedule appropriate witnesses for the hearing or solicit interrogatories from sources, experts, or other relevant persons. The ALJ may issue a subpoena if the witness indicates he or she will not appear voluntarily or if the witness refuses to produce requested evidence. See 20 CFR 404.950(d) and 416.1450(d). See also HALLEX I-2-5-78 and I-2-5-80.
If the ALJ receives additional evidence after the hearing from a source other than the claimant or the appointed representative, and the ALJ proposes to admit the evidence into the record, the ALJ will proffer the evidence to the claimant and appointed representative, if any. See HALLEX I-2-7-1. The ALJ will make a decision based on the evidence in the record, including evidence the ALJ has obtained directly.