Last Update: 11/20/18 (Transmittal I-2-222)
A. Opening Statement
An administrative law judge (ALJ) will open a hearing with a brief statement explaining how the hearing will be conducted, the procedural history of the claim(s), and the issue(s) involved. In supplemental hearings, an ALJ need only identify the claim(s), state the purpose of the supplemental hearing, and describe the issue(s) to be decided.
Generally, the content and format of the opening statement are within the discretion of an ALJ.
B. Right to Representation
If a claimant is unrepresented, an ALJ will advise the claimant of the right to representation following the procedures in Hearing, Appeals and Litigation Law (HALLEX) manual I-2-1-80 B.1.
C. Postponement of a Hearing to Obtain Representation
If a claimant wishes to postpone his or her hearing to obtain a representative, an ALJ will follow the procedures in HALLEX I-2-1-80 B.2. when deciding whether to grant postponement.
D. Claimant Requests to Make a Private Recording of the Hearing
If an ALJ grants a claimant or representative's request to make a private recording of a hearing, the ALJ's opening statement will include language reflecting the following information:
You asked if you may make a private recording of the proceedings of this hearing. This request is granted for the purpose of providing information for your personal use and convenience in pursuing this claim. However, if your recording interferes with the orderly conduct of the hearing, I will withdraw this permission. The hearing proceedings are confidential, and unauthorized use or disclosure of information shared or obtained at the hearing is prohibited by law, except as expressly permitted by the Privacy Act and the Freedom of Information Act. I also remind you that the recording I am making will be the official verbatim record of this proceeding.
E. Procedural Rulings
An ALJ will rule on-the-record regarding any prehearing requests or motions made by the claimant or representative, as appropriate, such as requests for postponement (20 CFR 404.936 and 416.1436), disqualification of an ALJ (20 CFR 404.940 and 416.1440; and HALLEX I-2-1-60 C), and subpoenas (20 CFR 404.950(d) and 416.1450(d); and HALLEX I-2-5-78 D).
In addition, an ALJ will ask the claimant and any representative, during the opening statement or prior to closing the hearing (see HALLEX I-2-5-78) if they are aware of any additional evidence that relates to whether the claimant is blind or disabled. If the claimant or representative states that there are outstanding records, an ALJ will remind him or her of the duty to submit to the ALJ, no later than five business days before the scheduled hearing, all written evidence known to the claimant or any representative that relates to whether the claimant is blind or disabled (see 20 CFR 404.1512, 404.1740(b), 416.912(c), and 416.1540(b)). An ALJ may decline to admit evidence not timely submitted, except under limited circumstances (see 20 CFR 404.935(b) and 416.1435(b); and HALLEX I-2-6-59 B). If an ALJ does not find that one of the limited circumstances applies, the ALJ will explain in the decision why he or she did not consider the evidence, in accordance with HALLEX I-2-6-59 C.
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. Whether or not a representative is an attorney or non-attorney, these communications would be subject to the attorney-client privilege under our regulations. See 20 CFR 404.1513(b) and 416.913(b).