Subject: Obtaining Evidence
This transmittal amends chapter I-2-5 of the Hearings, Appeals and Litigation Law (HALLEX) manual to clarify prehearing proffer procedures.
Chapter I-2-5 is amended as follows:
I-2-5-28 – We amended subsection E to clarify that an administrative law judge (ALJ) must proffer a prehearing medical or vocational expert interrogatory unless the ALJ intends to issue a fully favorable decision. In subsection F, we added a cross reference to post hearing proffer procedures in HALLEX I-2-7-1.
I-2-5-29 – We added this section to clarify and provide more instructions on prehearing proffer. In subsection A, we clarify the definition of proffer. In subsection B, we explain when prehearing proffer is required. We also note that an ALJ should proffer prehearing interrogatories as soon as possible to avoid the possibility that the author of the opinion evidence will be unavailable to respond to further questions, and we provide instructions on handling the issue if the author is unavailable at the time of proffer. We explain that an ALJ will use the proffer procedures in HALLEX I-2-7-30, but will not provide an opportunity for a hearing on the evidence when the information is proffered prehearing. We added a NOTE explaining that proffer procedures still apply even if the ALJ does not discover the need to proffer until the hearing or after the hearing.
I-2-5-30 – We amended subsection C to mirror other HALLEX changes relating to proffering evidence.
I-2-5-34 – We consolidated current subsections A and B into new subsection A titled “When to Obtain a Medical Expert (ME) Opinion.” We clarified when obtaining ME testimony is discretionary or not discretionary. In addition to minor formatting and editorial changes, we added information that was formerly in HALLEX I-2-5-36 that explains an ALJ will not ask or permit an ME to perform an examination of a claimant. We retitled subsection B “Determining Medical Specialty and Manner of Receiving Opinion,” and incorporated information previously in HALLEX I-2-5-36.
I-2-5-36 – We moved information previously in subsection A to new subsections C and D and retitled subsection A “Selection of Medical Expert (ME) from Regional Office (RO) Roster.” We incorporated and updated information previously in subsection D. We moved the information previously in subsection B to HALLEX I-2-5-34 and retitled the subsection “Selection of ME Not on RO Roster.” We incorporated and updated information previously in subsection E. We moved the information previously in subsection C to HALLEX I-2-5-34 and retitled the subsection “Notifying the Claimant of the Selection.” We incorporated information previously in subsection A. We moved the information previously in subsection D to subsection A and retitled subsection D “Before the Hearing.” We incorporated information previously in subsection A. We moved the information previously in subsection E to subsection B and removed subsection E.
I-2-5-42 – We made minor formatting and editorial changes throughout. We moved the instructions in sub-subsection C.2. to HALLEX I-2-5-44 and replaced the information with a cross reference.
I-2-5-44 – We moved the information in subsection C to new subsection D and retitled subsection C “Receipt of Additional Information After ME Responds to Interrogatories.” We incorporated information previously in HALLEX I-2-5-42.
Date: April 1, 2016