I-2-6-46.Partial Omissions or Inaudible Portions in the Hearing Recording

Last Update: 1/14/16 (Transmittal I-2-160)

A. Discovered During the Hearing

The hearing assistant or verbatim hearing reporter (VHR) will perform a periodic check of the recording equipment during the hearing to ensure the hearing recording is completely audible. See Hearings, Appeals and Litigation Law (HALLEX) manual I-2-6-42. If the hearing assistant or VHR discovers during the hearing that there are partial omissions or that portions of the hearing recording are inaudible, he or she will immediately alert the administrative law judge (ALJ). After determining what information is missing or inaudible, the ALJ will:

  • Summarize the missing testimony or questioning;

  • Verify the summary's correctness and accuracy with the claimant and representative, if any, on the record; and

  • Read the summary into the record.

B. Discovered After the Hearing but Before Decision Issued

If, after the hearing but before the decision is issued, hearing office (HO) staff or the ALJ discovers the hearing recording includes partial omissions or that portions are inaudible, the ALJ will:

  • Summarize the missing testimony or questioning;

  • Proffer the summary to the claimant and representative, if any, allowing a reasonable time for comment (see HALLEX I-2-7-1 and I-2-7-30); and

  • Review any response from the representative or claimant, modify the summary if appropriate, and admit the summary into evidence as an exhibit.

If the representative or claimant substantively objects to the summary, the ALJ must conduct a supplemental hearing to obtain the omitted or inaudible information on the record. However, if the claimant (or representative, if any) does not respond to the ALJ's request by the specified date and the correspondence was not returned as undeliverable, the ALJ may presume there is no objection and admit the summary into the record.

NOTE:

This instruction applies only to partial omissions or inaudible portions of the hearing recording. If the entire hearing recording is missing or is completely inaudible, an ALJ may not cure the defect by summarizing the hearing and proffering the summary to the claimant and appointed representative (if any), unless the ALJ is issuing a fully favorable decision. In any other circumstance, the ALJ must conduct a supplemental hearing to comply with 20 CFR 404.951 and 416.1451.

C. Discovered After the Hearing Decision Issued

If a claimant or representative notifies the ALJ that the hearing recording contains partial omissions or inaudible portions after the hearing decision is issued, the ALJ or assisting HO staff will first assess whether the ALJ has jurisdiction to correct the issue (i.e., the Appeals Council (AC) does not have jurisdiction).

NOTE:

This instruction applies only to partial omissions or inaudible portions of the hearing recording. For missing or completely inaudible hearing recordings, see the NOTE in HALLEX I-2-6-46 B above.

1. ALJ Has Jurisdiction

If the ALJ has jurisdiction, assisting HO staff will evaluate whether the issue can be corrected without reestablishing the case in the Case Processing and Management System and revising the hearing decision (e.g., correcting a technical issue with the uploaded hearing recording or providing another copy of the compact disc). However, if the issue cannot be corrected administratively, HO staff must refer the matter to the ALJ for additional action because the record is not considered complete without a verbatim audio recording of the entire hearing. See HALLEX I-2-6-40. Depending on the facts, the ALJ will follow the procedures in HALLEX I-2-6-46 B above or conduct a supplemental hearing.

2. ALJ Does Not Have Jurisdiction

If the hearing decision was appealed to the AC, but the issue is technical and the HO can take appropriate actions to correct the issue, HO staff will take the necessary actions, document the actions taken, and add the documentation to the claim(s) file.

However, if HO staff cannot correct the issue, it will notify the AC of the issue as soon as possible to avoid any further delay in processing. HO staff will notify the AC by sending an email to ¦¦¦ODAR OAO with the subject line “Request to Remand Case.” In the email, HO staff will include:

  • The claimant's name;

  • The claimant's Social Security number; and

  • A brief explanation that the hearing recording has partial omissions or is portions that are inaudible and the HO needs the case back to correct the issue per the instructions in HALLEX I-2-6-46.