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HALLEX I-2-501

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-501 EVIDENCE--GENERAL (REVISED 04/94)

Citations: > 20 CFR 404.941, > 404.1502, 404.1512 - 404.1518, 404.1519 - 404.1519t, 404.1520a, 404.1527, 410.240, 410.472 - 410.475, 416.902, and 416.1441, 416.912 - 416.918, 416.919 - 416.919t, 416.920a; > 42 CFR 405.1823, > 473.30, 498.61

The claimant is responsible for providing evidence to support his or her claim. If the claimant does not provide medical or other evidence the Administrative Law Judge (ALJ) needs and asks for, the ALJ will make a decision based on the evidence that is available, including evidence the ALJ has obtained directly.

The regulations at 404.1502 and 416.902 define "medical sources" as a claimant's treating sources, sources of record, and consultative examiners for the Social Security Administration (SSA) or the State agency (also known as the Disability Determination Service (DDS)) making the disability or blindness determination. These sections define "treating source" as a claimant's own physician or psychologist who has provided the claimant with medical treatment or evaluation, and who has or has had an ongoing treatment relationship with the claimant. They define "source of record" as a hospital, clinic or other source that has provided the claimant with medical treatment or evaluation, as well as a physician or psychologist who has treated or evaluated the claimant, but does not have or did not have an ongoing treatment relationship with the claimant.

The regulations at 404.1513(a) and 416.913(a) define "acceptable sources" as licensed physicians, licensed osteopaths, licensed or certified psychologists, licensed optometrists for the measurement of visual acuity and visual fields, and persons authorized to send us a copy or summary of the medical records of a hospital, clinic, sanitorium, medical institution, or health care facility.

SSA considers a claimant's treating source(s) to be the primary source of medical evidence about the claimant's impairment(s). If a claimant's treating source(s) cannot provide adequate evidence about the claimant's impairment(s) for the ALJ to determine whether the claimant is disabled or blind, the ALJ may obtain existing evidence from other sources or ask the claimant to undergo a physical or mental examination(s) or test(s).

SSA will pay physicians or mental health professionals not employed by the Federal government and other non-federal providers of medical services for the reasonable cost of providing existing medical evidence that the ALJ requests. SSA will also pay for any physical or mental examination or test that it arranges. However, SSA will not pay for any physical or mental examination or test the claimant or the claimant's representative arranges without advance approval.

"Claimant," as used herein, refers to the party to the initial, reconsidered, or revised determination who has requested a hearing before an ALJ, and any other party to the determination, or person whose rights may be adversely affected by a hearing decision.

A. Prehearing Review of the Evidence

The ALJ or the hearing office (HO) staff under the ALJ's direction must review the evidence before the hearing to determine whether it is sufficient for a full and fair inquiry into the matters at issue. (See > I-2-101, Prehearing Case Analysis and Workup--General, and > I-2-105, Conducting Prehearing Case Analysis and Workup.)

Development may be needed to:

1. obtain additional medical evidence (e.g., current evidence from a treating source);

2. obtain technical or specialized medical opinion; or

3. resolve conflicts or differences in the evidence.

B. Obtaining Additional Evidence--General

1. If the ALJ or the HO staff decides that additional evidence is needed, the ALJ or the HO staff will undertake appropriate development before the hearing and arrange for any necessary witnesses to be present at the hearing.

2. If the ALJ obtains evidence after the hearing from a source other than the claimant, the ALJ must provide the claimant an opportunity to examine the evidence before entering it into the record as an exhibit. (See > I-2-730, Proffer Procedures.)


HALLEX I-2-510

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-510 PREHEARING CASE REVIEW (REVISED 04/94)

A. General

After a hearing is requested but before it is held, if certain conditions exist (See B. below.), the ALJ may forward the case to the State agency or other component that issued the determination being appealed, for a prehearing case review. That component will decide whether the determination can be revised to be wholly or partially favorable to the claimant. The ALJ will not dismiss the RH when forwarding a case for prehearing case review.

The ALJ may delay scheduling a hearing for a prehearing case review only if the claimant agrees to the delay. If the component cannot complete the prehearing case review before the scheduled date of the hearing, the component must return the case to the ALJ for hearing unless the component is preparing a revised determination and the claimant provides written consent for the ALJ to delay the hearing.

NOTE: In lieu of prehearing case review, the ALJ should consider commencing a prehearing conference to determine whether a fully favorable decision can be issued. (See > I-2-175, Prehearing Conference.)

B. When a Prehearing Case Review May Be Conducted

An ALJ may consider a case for prehearing review by the State agency or other component that issued the determination being appealed when:

1. additional evidence is submitted or there is an indication that additional evidence is available, and the additional evidence could result in a revised favorable determination;

2. there is a change in the law or regulation; or

3. there is an error in the file or some other indication that the prior determination may be revised.

C. Component's Notice of Revised Determination

If the component revises the determination based on their prehearing case review, it will mail written notice of the revised determination and the basis for it to the claimant at the claimant's last known address.

1. Revised Determination Is Wholly Favorable.

If the revised determination is wholly favorable to the claimant, the component will notify the claimant that the ALJ will dismiss the request for a hearing (RH) unless the claimant notifies the ALJ in writing, within 30 days after the date on which the component's notice was mailed, that he or she wants the ALJ to proceed with the hearing.

2. Revised Determination Partially Favorable or Unfavorable.

If the revised determination is partially favorable or unfavorable to the claimant, the component will tell the claimant in the notice that the ALJ will proceed with the scheduled hearing unless all claimants agree to dismissal of the RH.

D. Transmitting the CF

When sending a case to a component for a prehearing case review, use Form HA-505 (Transmittal by Office of Hearings and Appeals) to transmit the CF. Indicate on the transmittal or in a separate letter the reason(s) for the prehearing case review, and identify any additional evidence that is relevant to the review. Do not dismiss the RH.

E. ALJ Action Following a Component's Partially Favorable or Unfavorable Revised Determination

1. If a component issues a partially favorable or unfavorable revised determination as a result of a prehearing case review, and the ALJ does not hear from the claimant or the representative within 30 days after the date on which the component mailed notice of the revised determination, the ALJ must send a letter to the claimant and the representative (if any) inquiring whether the claimant wishes to pursue the RH. The letter should inform the claimant or the representative that if the claimant is satisfied with the component's revised determination, he or she should submit a written request to withdraw the RH.

If the claimant or representative submits a written request to withdraw the RH, the ALJ should issue an order dismissing the RH. (See > I-2-420, Dismissal at the Claimant's Request.) If the claimant or representative does not submit a written request to withdraw the RH, the ALJ should proceed with action on the RH in the usual manner.


HALLEX I-2-512

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-512 FORMAL REMANDS (REVISED 04/94)

An ALJ may dismiss a claimant's RH and remand the claimant's case to the State agency or other component that issued the determination being appealed for a revised determination if there is reason to believe that the revised determination will be fully favorable to the claimant, e.g., if the ALJ receives new and material evidence or if there is a change in the law that permits a favorable determination.

- If an ALJ is prepared to remand a case to a component for a revised determination, and the claimant did not request the remand, the ALJ must notify the claimant and inform the claimant that unless he or she objects, the ALJ will assume that the claimant agrees to the remand.

- If the claimant objects to the remand, the ALJ must consider the objection and rule on it in writing. (See > 20 CFR 404.948(c) and > 416.1448(c).)

Formal remand is also appropriate when a claimant's mental impairment becomes an issue for the first time at the claimant's hearing or in connection with the claimant's RH, and the component that issued the determination being appealed did not consider the claimant's mental impairment and complete a Psychiatric Review Technique Form (PRTF). See > 20 CFR 404.1520a and > 416.920a for circumstances under which an ALJ may remand a case for consideration of a mental impairment under the Disability Benefits Reform Act of 1984.


HALLEX I-2-514

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 2: Administrative Law Judge Hearings

Subject: Obtaining Evidence

Chapter: I-2-500

August 18, 1995

Current through March 1997

I-2-514 OBTAINING MEDICAL EVIDENCE FROM A TREATING SOURCE OR A SOURCE OF RECORD (REVISED 06/94)

When an ALJ needs additional information about a claimant's medical impairment(s), he or she will determine if the information may be available from a treating source or a source of record. (See > I-2-501 for definitions of "treating source" and "source of record.") If the ALJ determines that the information may be available from a treating source or a source of record, he or she will attempt to obtain the information by following the procedures in subsections A., B. and C., below.

A. Requesting a Claimant or Representative to Provide Evidence That May be Available from a Treating Source or Source of Record.

The ALJ or HO staff will request the claimant or representative to identify the claimant's treating source(s) and source(s) of record, and provide all relevant evidence that is available from those sources. The HO staff will then:

1. Diary the case for 30 days.

2. If the claimant or the representative does not provide the evidence by the diary date, the ALJ or HO staff should contact the claimant or representative to determine why they have not provided it.

3. Depending upon the reason(s) given, the ALJ may:

- extend the time for the claimant or representative to provide the evidence (e.g., if the claimant informs the ALJ that a treating source has promised to provide the evidence within a reasonable period);

- request the evidence from the treating source or source of record, either directly or through the State agency (See B. and C., below.); or

- obtain the needed information by way of a consultative examination (CE) and/or specific test (e.g., if the claimant informs the ALJ that the requested evidence is not available). (See > I-2-520, Consultative Examinations and/or Tests.)

B. Requesting Evidence Directly From a Treating Source or Source of Record

1. Telephone Requests

When requesting evidence by telephone, the HO staff will:

a. Prepare a report of contact (RC) to document the request, and place the RC in the CF. The RC must show:

- the name, position or title, and telephone number of the HO staff person making the contact;

- the name, position or title, and telephone number of the person contacted;

- the date of the contact; and

- the substance of the telephone conversation, including identification of the evidence requested, the actions to be taken by both the requestor and the source (e.g., the person making the contact promises to provide the source with the claimant's signed consent to release the evidence), and the time limits for completion of such actions.

b. Diary the case for a follow-up contact. (See B. 3., Follow-up Procedures, below.)

2. Written Requests

When requesting evidence in writing, the HO staff will:

a. Enclose a consent form signed by the claimant (Use Form SSA-827 or a similar format.);

b. Place a copy of the written request in the CF (See > I-2-590 Samples, Sample 1, Medical Development Letter to Treating Source. The HO staff may need to modify this letter when requesting evidence from other sources.); and

c. Diary the case for follow-up (See B. 3., Follow-up Procedures, below.).

3. Follow-up Procedures

If a treating source or source of record does not provide requested evidence within 10 days after the HO's initial telephone request or within 15 days after the HO's initial written request (allowing an additional 5 days for mailing), the HO staff should contact the source (preferably by telephone) to determine the status of the source's action on the request. If the ALJ or HO staff believes that the source may need additional time to respond to the initial request, they may delay the follow-up contact for an additional 10 days.

If the source does not provide the requested evidence within 10 days after the HO's telephone follow-up, or 15 days after the HO's written follow-up, the HO staff should contact the source again to determine the status of the source's action on the request.

If the HO's follow-up contact is made by telephone, the HO staff should prepare an RC to document the CF. The RC must show:

- the name, position or title, and telephone number of the HO staff person making the follow-up contact;

- the name, position or title, and telephone number of the person contacted;

- the date of the follow-up contact; and

- the substance of the telephone conversation.

If the follow-up is made in writing, the HO staff should place a copy of the written follow-up in the CF.

4. Telephone Reports

If a medical source provides information by telephone, the HO staff person receiving the information will:

a. Prepare an RC which clearly describes the information provided, and shows:

- the HO staff person's name, position or title, and telephone number;

- the source's name, position or title, and telephone number; and

- the date and time of the telephone report.

b. Send the original RC, along with a postage paid return envelope, to the source for verification, signature, and return to the HO.

c. Place a copy of the RC in the CF.

5. Payment for Reports

The HO is authorized to pay the same amount for reports that the State agency would pay.


C. Requesting Evidence From a Treating Source or Source of Record Through the State Agency

1. Request Procedures

When requesting evidence from a treating source or source of record through a State agency, the HO staff should:

a. Complete and send to the State agency a Form HA-4488, Request for DDS Assistance in Obtaining Report(s). The HO staff should provide the State agency with:

- the representative's (if any) name, address and telephone number;

- a description of the needed evidence and its location;

- the claimant's signed consent to release the evidence;

- the name and telephone number of a person in the HO that the State agency may contact; and

- a postage paid return envelope.

b. Place a copy of the Form HA-4488 and other request information in the CF; and

c. Diary the case for 30 days.

2. Follow-up Procedures

If the State agency does not provide the requested evidence by the end of the diary period, the HO staff should:

a. Contact the State agency (preferably by telephone) to determine the status of the State agency's action on the request;

b. Prepare an RC for the CF to document the follow-up; and

c. Diary the case for the additional time (up to 30 days) that the State agency indicates it needs.

3. Problem With the State Agency's Response

If there is a problem with the State agency's response (e.g., the State agency does not send any evidence, or sends inadequate or incomplete evidence), the HO staff should contact the State agency (preferably by telephone) and try to resolve the problem.

If the HO staff is unable to resolve the problem, and the requested evidence is essential, the HO staff should request assistance from the Regional Office (RO).

D. Medical Test Data (Revised 08/95)

Medical evidence from treating sources and sources of record frequently includes reports of medical test results that are not accompanied by the background medical test data (e.g., radiologists' reports of X-rays do not normally include the actual X-ray films, and psychological test reports do not normally include "raw" test data such as answer sheets or drawings). However, background medical test data are required for some pulmonary testing and for electrocardiograms (see 3.00E., 3.00F.1., and 4.00C.1. of the Listing of Impairments). Even if background medical test data are not required, if a report raises a question about the accuracy of the medical test results reported (or other evidence raises such a question), the ALJ may ask the source to submit the background medical test data. Such requests should be rare and, if they occur, interpretation and evaluation of the background medical test data would require a medical expert. (See > I-2-534 B., When the ALJ Must Obtain ME Opinion.)

In some localities, a special authorization may be needed to obtain psychological test data. Regional instructions will be provided for such localities. For example, the Chicago RO can supply a copy of a special release form required in the State of Illinois.

NOTE: Psychological test instruments are available only to qualified testing facilities and personnel. Because an ME must be used to evaluate and interpret "raw" test data and because such a qualified medical professional would be familiar with the respective test instrument(s), it should not be necessary for the ALJ to request the test instrument(s).



HALLEX I-2-518

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 2: Administrative Law Judge Hearings

Subject: Obtaining Evidence

@Chapter: I-2-500

August 18, 1995

Current through March 1997

I-2-518 OBTAINING TESTIMONY FROM A TREATING SOURCE (REVISED 04/94)

A treating source's medical reports are usually sufficient to document his or her medical findings and assessment. However, at the claimant's request and with the agreement of the treating source, the source may testify at a hearing.

Also, if an ALJ determines that a treating source's testimony is needed to inquire fully into the matters at issue, the ALJ will try to obtain the testimony on a voluntary basis. The ALJ must enter into the record copies of all correspondence and other documentation of his or her efforts to obtain the treating source's voluntary testimony.

If a treating source will not testify voluntarily, the ALJ will follow the procedures in > I-2-578, Use of Subpoenas -- General, through > I-2-582, Noncompliance With a Subpoena.



HALLEX I-2-520

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-520 CONSULTATIVE EXAMINATIONS AND TESTS (REVISED 06/94)

If the claimant does not provide adequate evidence about his or her impairment(s) for the ALJ to determine whether the claimant is disabled or blind, and the ALJ or the HO staff is unable to obtain adequate evidence from the claimant's treating source(s) or source(s) of record, the ALJ may request a CE(s) and/or test(s) through the State agency.

NOTE: An ALJ should request only the specific examination(s) or test(s) that he or she needs to make a decision. For example, an ALJ should not request a complete medical examination if the only evidence needed is a special test (such as an X-ray, blood study or electrocardiogram) or a medical source statement of the claimant's ability to do work-related activities.

A. Requesting a CE Through the State Agency

When requesting a CE through the State agency, the ALJ or HO staff should provide the State agency with the following:

1. Form HA-4489, Request for DDS Assistance in Obtaining Consultative Examination(s) (and other medical evidence as indicated). The ALJ or HO staff should highlight the request for a medical source statement (medical assessment).

2. One or more of the following medical development outlines or medical attachments (M-Forms):

- HA-630 Request for Consultative Psychiatric Examination and Evaluation (M-5),

- HA-631 Request for Psychological Evaluation (M-5 Psychol),

- Request for Psychological Evaluation in Childhood Disability Cases (M-5C Psychol),

- HA-649 Request for Consultative Examination and Evaluation-Cardiac/General Medical (M-1),

- HA-652 Request for Consultative Pulmonary Examination and Evaluation (M-3),

- HA-653 Request for Consultative Examination and Evaluation of Arthritic Disease (Inflammatory and/or Connective Tissue) (M-4),

- HA-655 Request for Consultative Orthopedic Examination and Evaluation (M-6),

- HA-656 Request for Consultative Peripheral Vascular Examination and Evaluation (M-7),

- HA-657 Request for Consultative Gastrointestinal Examination and Evaluation (M-8),

- HA-658 Request for Consultative Diabetes Mellitus Examination and Evaluation (M-9),

- HA-659 Request for Ophthalmological Examination and Evaluation (M-10),

- HA-660 Request for Consultative Neurological or Neurosurgical Examination and Evaluation (M-11),

- HA-661 Request for Consultative Neurological Examination and Evaluation of Epilepsy (M-12),

- HA-662 Request for Consultative Examination and Evaluation of Discogenic Disease or Muscular Syndrome of the Back (M-13), or

- Request for Consultative Dermatological Examination and Evaluation (M-14).

3. A medical exhibits folder with instructions for the State agency to send the folder to the consultative examiner for review. (See > I-2-522, Medical Exhibits Folder.)

4. A medical source statement form (i.e., SSA-1151, Medical Assessment of Ability to Do Work-Related Activities (Physical), or SSA-1152, Medical Assessment of Ability to do Work-Related Activities (Mental).

5. The name and telephone number of a person in the HO that the State agency may contact.

6. A postage paid return envelope suitable for the evidence requested.

The HO staff will place a copy of the CE request in the CF.

B. Requesting Specific Tests

If an ALJ decides that he or she needs the results of a specific medical test(s) to make a decision, the ALJ may request the State agency to arrange for the test(s) to be performed either in conjunction with a CE or alone. Whenever possible, the ALJ should indicate that an equivalent test(s) may be substituted for the specific test(s) requested.

NOTE: Do not request diagnostic tests or procedures that involve significant risk to the claimant, such as myelograms, arteriograms, or cardiac catheterizations. The State agency medical consultant will review and must approve any diagnostic test or procedure that may involve significant risk. (See > I-2-526, State Agency Physician Determines that Requested Tests Would Involve Significant Risk.)

1. Test to be Performed in Conjunction With a CE

When requesting a State agency to have a specific medical test(s) performed in conjunction with a CE, the ALJ or HO staff should provide the State agency with the information described above in subsection A., and describe the specific medical test(s) in section 3 (Specific Information Requested) of the HA-4489, or on the appropriate M-Form.

2. Test to be Performed Alone

When requesting a State agency to have a specific medical test(s) performed alone (i.e., not in conjunction with a CE), the ALJ or HO staff should provide the State agency with a completed form HA-4489, Request for DDS Assistance in Obtaining Consultative Examination(s) (and other medical evidence as indicated); the name and telephone number of a person in the HO that the State agency may contact; and a postage paid return envelope suitable for the evidence requested. The ALJ or HO staff should describe the specific medical test in section 3 (Specific Information Requested) of the HA-4489.


The HO staff will place a copy of the request in the CF.

NOTE: Requesting Medical Test Data

See > I-2-514 D., Medical Test Data, which discusses requesting background medical test data (e.g., X-ray films, and "raw" psychological test data such as answer sheets or drawings). Because consulting sources are, by regulation, subject to special oversight provisions, as described in > 20 CFR 404.1519p through 404.1519t and 416.919p through 416.919t, it should not be necessary to request background medical test data from consulting sources.

C. Selecting the Physician or Psychologist Who Is to Conduct the CE or Test(s)

The ALJ usually will not need to specify a particular physician or psychologist to conduct a CE or test. Because SSA considers a claimant's treating source(s) to be the primary source of medical information about a claimant's impairment, the State agency will, if possible, select a treating source that is qualified, equipped, and willing to perform the CE or test for the amount allowed under their fee payment schedule.

An ALJ may request that the State agency use a particular nontreating physician or psychologist to conduct a CE or test only if the Appeals Council or a court has so ordered.

An ALJ may request that the State agency not use a particular treating or nontreating physician or psychologist to conduct a CE or test if he or she has a good reason.

The State agency may decline to use a particular treating or nontreating physician or psychologist to conduct a CE or test if it has a good reason, e.g., the physician or psychologist has a history of not providing timely or complete reports.

If an ALJ requests a State agency to use or not use a particular treating or nontreating physician or psychologist to conduct a CE or test, the ALJ must:

1. provide the physician's or psychologist's name, address, and telephone number, and explain the reason(s) for the special request; and

2. place a copy of the special request in the CF.

D. Follow-up Procedures

If the State agency does not provide the requested evidence by the end of the diary period, the HO staff should follow the procedures in > I-2-514 C. 2.

E. Problems with the State Agency's Response

1. CE Report Is Inadequate or Incomplete

If the State agency does not provide a CE report, or provides a CE report which is inadequate or incomplete, the HO staff should follow the procedures in > I-2-514 C. 3.

2. CE Report is Unsigned or Improperly Signed

If the State agency provides a CE report which is unsigned or improperly signed, or if the CF contains such a CE report, which would otherwise be proposed as an exhibit, the HO staff should ask the State agency to obtain a properly signed CE report, and then follow the procedures in E. 3., or E. 4., below.

NOTE: A CE physician's or psychologist's signature on a report annotated "not proofed" or "dictated but not read" is not acceptable. A rubber stamp signature, or a signature entered by another person is also not acceptable.

3. Decision Fully Favorable

The ALJ should not delay issuing a fully favorable disability decision pending receipt of a properly signed CE report. The ALJ should issue the fully favorable decision, and the HO staff should send the decision and CF to the appropriate component for effectuation.

When the State agency later provides a properly signed CE report to the HO, the HO staff should forward the CE report to the effectuating component to be associated with the CF. If the State agency notifies the HO that it cannot provide a properly signed CE report because the consulting physician or psychologist has died, the HO staff should take no further action.

4. Decision Less Than Fully Favorable

The ALJ should not use an unsigned or improperly signed CE report as basis for a decision which is less than fully favorable. If the ALJ needs a CE report to issue a decision, but the CE report is unsigned or improperly signed, and the State agency cannot obtain the proper signature on the report, the ALJ should not use the report, but rather should request the State agency to arrange for another CE or test with a different CE physician or psychologist.


HALLEX I-2-522

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-522 MEDICAL EXHIBITS FOLDER (REVISED 04/94)

A. Preparing a Medical Exhibits Folder

Prepare a medical exhibits folder for each consultative examiner as follows:

1. Use a letter-size folder. On the front of the folder, write or type the claimant's name and Social Security number, and the type of CE requested.

2. Make legible copies of all pertinent exhibits, including the initial and reconsideration determinations, and Form SSA-3368 (Disability Report), and place the copies in the folder.

Prepare any necessary medical attachments (M-Forms) and place them in the folder. (See > I-2-520 A., Requesting a CE Through the State Agency.)



HALLEX I-2-524

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-524 CLAIMANT FAILS OR REFUSES TO SUBMIT EVIDENCE OR UNDERGO A CONSULTATIVE EXAMINATION OR TEST (REVISED 04/94)

If a claimant fails or refuses to submit requested evidence or undergo a requested CE or test, the ALJ or HO staff will carefully review the available evidence to determine if the claimant has a mental impairment which might explain the failure or refusal, and then proceed with the actions described in subsection A., B., C. or D. below, as appropriate.

If the claimant in an initial entitlement case does not have a good reason for failing or refusing to submit requested evidence or undergo a requested CE or test, the ALJ will issue a decision based on the available evidence, and may find (at the appropriate step of the sequential evaluation process) that the claimant is not disabled or blind. (> 20 CFR 404.1516, > 404.1518, 416.916 and 416.918)

Example:

If a claimant who is not working fails or refuses, without a good reason, to undergo a requested CE or test, and the available evidence does not establish that the claimant's impairments significantly limit his or her ability to do basic work activities, a denial under the second step of the sequential evaluation process (i.e., no severe impairment) would be appropriate.

If the claimant in a cessation case does not have a good reason for failing or refusing to submit requested evidence or undergo a requested CE or test, the ALJ may determine that the claimant's disability or blindness has ceased because of the failure or refusal. (> 20 CFR 404.1518, > 404.1579(e)(2), 416.918, and 416.979(e)(2))

NOTE: A claimant's failure or refusal to submit requested evidence or undergo a requested CE or test is never a basis for dismissing the claimant's RH. (> 20 CFR 404.957 and > 416.1457)

A. Claimant With No Apparent Mental Impairment Fails or Refuses to Submit Requested Evidence--Initial Entitlement Claims

If a claimant with no apparent mental impairment fails or refuses to submit requested evidence, the ALJ or HO staff will determine the claimant's reason(s). If the claimant has a good reason, the ALJ or HO staff will attempt to obtain the evidence by other means. If the claimant does not have a good reason, the ALJ or HO staff will:

1. prepare a report of contact (RC) to document the claimant's reason(s), unless the reason(s) is already documented in the record);

2. mark the RC as an exhibit, add the RC to the list of exhibits, and give the claimant and the representative an opportunity to review the RC and the other proposed exhibits (See > I-2-528 C., Disclosure of New Evidence Before the Hearing, and D., Disclosure of New Evidence After the Hearing.);

3. proceed with the actions necessary to issue a decision based on the available evidence; and

4. include in the decision a statement about the effect (if any) of the claimant's failure or refusal on the decision.

B. Claimant With No Apparent Mental Impairment Fails or Refuses to Undergo a CE or Test--Initial Entitlement Claims

If a claimant with no apparent mental impairment fails or refuses to undergo a scheduled CE or test, the State agency will determine the claimant's reason(s).

1. If the State agency determines that the claimant had a good reason for failing or refusing to undergo the CE or test, they will reschedule the CE or test if the claimant is able and willing to undergo the CE or test.

If the claimant fails or refuses to undergo the second scheduled CE or test, the State agency will return the ALJ's request to the HO, along with a report of the reason(s) the claimant gave (if any) for failing or refusing to undergo the second CE or test.

2. If the State agency determines that the claimant did not have a good reason for failing or refusing to undergo the CE or test, they will return the ALJ's request to the HO, along with a report of the reason(s) the claimant gave (if any) for failing or refusing to undergo the CE or test.

In either of the above situations, if the ALJ determines that the claimant had a good reason for failing or refusing to undergo the CE or test, the ALJ or HO staff will request the State agency to schedule another CE or test as soon as possible, if the claimant is able and willing to undergo the CE or test.


If the ALJ determines that the claimant did not have a good reason for failing or refusing to undergo the CE or test, the ALJ will proceed with the actions necessary to issue a decision based on the available evidence, as described above in subsection A.

C. Claimant With an Apparent Mental Impairment Fails or Refuses to Submit Requested Evidence or Undergo a CE or Test--Initial Entitlement Claims

If a claimant with an apparent mental impairment fails or refuses to submit requested evidence or undergo a requested CE or test, the ALJ must consider the effect of the mental impairment when determining whether the claimant had or has a good reason. The ALJ or HO staff will proceed with the actions described above in subsection A., or subsection B., as appropriate. In addition, the ALJ or HO staff will:

1. if the claimant does not have a representative, remind the claimant of the right to representation;

2. if the claimant has a representative, ensure that the representative is aware of the claimant's failure or refusal, and of the importance of the claimant's cooperation;

3. obtain the needed evidence from other sources, if possible.

NOTE: The ALJ may ask an ME to review the evidence in the record and provide an opinion regarding the possible effect of the claimant's mental impairment on his or her failure to provide requested evidence or undergo a requested CE or test. (See > I-2-532, Medical Experts--General.)

D. Claimant Fails or Refuses to Submit Requested Evidence or Undergo a CE or Test--Cessation Cases

If a claimant fails or refuses to submit requested evidence or undergo a CE or test in a cessation case, the ALJ or the HO staff will proceed with the actions described above in subsections A., B. or C., as appropriate. If the ALJ determines that the claimant did not have a good reason for such failure or refusal, he or she may find that the claimant's disability or blindness has ceased because of the claimant's failure to cooperate.

E. Determining Whether a Claimant Has Shown a Good Reason for Failing or Refusing to Submit Requested Evidence or Undergo a Requested CE or Test

When determining whether a claimant has shown a good reason for failing or refusing to submit requested evidence or undergo a requested CE or test, the ALJ should consider the guidelines in > 20 CFR 404.911 and > 416.1411, which apply when determining whether a claimant has shown "good cause" for missing a deadline to request review. Examples of circumstances where a good reason may exist include, but are not limited to, the following:

1. The claimant was seriously ill and unable to comply with the request.

2. There was a death or serious illness in the claimant's immediate family which prevented him or her from complying with the request.

3. The claimant did not receive the request to submit evidence or appear for a CE or test, or the claimant received the request untimely.

4. The request to submit evidence or appear for a CE or test contained incorrect or incomplete information about when and where to submit the evidence or appear for the CE or test.

F. Documentation

If an ALJ finds that a claimant did not have a good reason for failing to submit requested evidence or undergo a requested CE or test, he or she will mark the RCs and other documents which support that finding as proposed exhibits, and give the claimant and the representative (if any) an opportunity to review and comment on the proposed exhibits. (See > I-2-528 C., Disclosure of New Evidence Before the Hearing, and > I-2-528 D., Disclosure of New Evidence After the Hearing.)



HALLEX I-2-526

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-526 STATE AGENCY PHYSICIAN DETERMINES THAT A REQUESTED TEST WOULD INVOLVE SIGNIFICANT RISK (REVISED 04/94)

If a State agency determines, based on a State agency review physician's assessment or consultant's opinion, that a requested test should not be performed because it would involve significant risk to the claimant, the State agency will notify the ALJ or the HO staff contact person of the determination and the reason(s) for it. The HO staff will take the following actions:

- Prepare an RC to document the reason(s) for the State agency's determination, unless the State agency provided a written statement of the reasons.

- Mark the RC or the State agency's written statement as a proposed exhibit, add it to the list of exhibits, and give the claimant and the representative (if any) an opportunity to review and comment on the proposed exhibits. (See > I-2-528 C., Disclosure of New Evidence Before the Hearing, and > I-2-578 D., Disclosure of New Evidence After the Hearing.)

- Obtain the needed information through other means, if possible.

NOTE: If a consultative physician or psychologist contacts the HO directly about an ALJ's request through the State agency for a CE or test, the ALJ or the HO staff will ask the consultative physician or psychologist to contact the State agency.



HALLEX I-2-528

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-528 ACTION FOLLOWING RECEIPT OF REQUESTED EVIDENCE (REVISED 04/94)

When requested evidence is received, the ALJ or the HO staff under the ALJ's direction must review the evidence for completeness and responsiveness.

A. Requested Evidence Is Complete and Responsive

If the requested evidence is complete and responsive, the HO staff will:

1. mark the new evidence as an exhibit (See > I-2-115, Exhibits);

2. prepare and mark the professional qualifications of each source as an exhibit (See > I-2-130, Professional Qualifications of Physicians and Mental Health Professionals); and

3. review the total record for sufficiency of the evidence and any material conflicts.

B. Requested Evidence Is Incomplete or Unresponsive

1. If evidence requested through a State agency is incomplete or unresponsive, the HO staff will follow the procedures in > I-2-514 C. 3., Problem With the State Agency's Response.

2. If evidence requested directly from a treating or other source is incomplete or unresponsive, contact the source again, either directly or through the claimant or the representative, to determine if additional evidence is available. Request assistance from the State agency if necessary.

C. Disclosure of New Evidence Before the Hearing

If an ALJ receives new evidence before the hearing from a source other than the claimant, and the ALJ proposes to enter the evidence into the record as an exhibit, the ALJ must give the claimant and the claimant's representative (if any) an opportunity to review the evidence before the hearing. (See > I-2-135, Examination of the Proposed Exhibits and Other Claim File Material.)

If the new evidence indicates that the claimant has a serious illness of which the claimant and the treating physician may not be aware, the ALJ will exercise appropriate discretion to avoid adversely affecting the claimant's medical situation, while proceeding with the actions necessary to protect the claimant's right to due process.

D. Disclosure of New Evidence After the Hearing

If an ALJ receives new evidence after the hearing from a source other than the claimant, and the ALJ proposes to enter the evidence into the record as an exhibit, the ALJ must give the claimant and the claimant's representative the opportunity to review and comment on the evidence and request a supplemental hearing unless:

1. the claimant or the representative knowingly waived the right to review the evidence and to appear at a supplemental hearing, or

2. the ALJ is prepared to issue a fully favorable decision.

See > I-2-730, Proffer Procedures, through > I-2-735, Entering Posthearing Evidence; > I-2-590 Samples, Sample 2, Letter to Representative Enclosing Copy of New Evidence; and > I-2-590 Samples, Sample 3, Letter to Unrepresented Claimant Enclosing Copy of New Evidence.



HALLEX I-2-530

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-530 MEDICAL OR VOCATIONAL EXPERT OPINION--GENERAL (REVISED 04/94)

Before scheduling a hearing, the ALJ or the HO staff under the ALJ's direction must review all of the evidence to determine if additional evidence is needed to inquire fully into the matters at issue. If this review indicates that ME or VE opinion is needed, the ALJ must obtain the opinion by requesting an ME or VE to either testify at a hearing or provide answers to written interrogatories.

The preferred method for obtaining ME or VE opinion is through live testimony at a hearing. A hearing provides the claimant and the representative (if any) the opportunity to ask the ME or VE any questions material to the issues, including questions that arise for the first time during the hearing. Interrogatories are more limiting in that it is difficult to anticipate all questions that might arise.

If a claimant has waived his or her right to a hearing and requested an on-the-record decision, or has indicated a preference for written interrogatories rather than a supplemental hearing, but the ALJ believes that ME or VE opinion is needed, the ALJ should carefully consider whether the claimant's personal appearance and testimony are essential to decide the case.

The ALJ may schedule a hearing or supplemental hearing notwithstanding the claimant's waiver if he or she decides that the claimant's personal appearance and testimony are essential. (See > I-2-145 F., Waiver of the Right to Appear at the Hearing.)

The ALJ may utilize interrogatories if he or she decides that personal appearance and testimony are not essential, and that interrogatories will provide a full inquiry into the matters at issue. (See > I-2-542, Obtaining Medical Expert Opinion Through Interrogatories, and > I-2-557, Obtaining Vocational Expert Opinion Through Interrogatories.)

NOTE: The ALJ must make every effort to obtain all essential documentary evidence early enough to allow the ME or VE sufficient time to consider the evidence before he or she responds to questions at a hearing or answers written interrogatories.



HALLEX I-2-531

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-531 BLANKET PURCHASE AGREEMENTS (REVISED 04/94)

Each RO maintains a roster of MEs and VEs who have agreed to provide impartial expert opinion pursuant to a Blanket Purchase Agreement (BPA). Every ME or VE who testifies at a Social Security hearing or provides a written response to an interrogatory must be covered under a BPA, unless a medical specialty not represented on the RO's ME roster is needed, or other extenuating circumstance requires the one-time purchase of an ME's or VE's services. The same terms and conditions which apply to an ME or VE providing services pursuant to a BPA apply also to an ME or VE providing services without a BPA. (See > I-2-561, Use of Dually-Qualified Vocational and Medical Experts.)



HALLEX I-2-532

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-532 MEDICAL EXPERTS--GENERAL (REVISED 04/94)

MEs are physicians and mental health professionals who provide impartial expert opinion at the hearing level on claims under title II, title XVI and title XVIII of the Social Security Act, or on claims for Black Lung Benefits, by either testifying at a hearing or responding in writing to interrogatories. The need for ME opinion is left to the ALJ's discretion.

The primary reason an ALJ may obtain ME opinion is to gain information which will help him or her evaluate the medical evidence in a case, and determine whether the claimant is disabled or blind. An ALJ may also obtain ME opinion to help him or her determine whether services provided to a claimant in a hospital or skilled nursing facility are covered under the Medicare program. When ME testimony is needed, use of an ME will result in a more complete record to support the ALJ's conclusion on the ultimate issue of disability or, for example, the need for medical services provided.

Before requesting an ME to appear at a hearing or respond to interrogatories, the ALJ should review all of the evidence to determine if it adequately documents the course of the claimant's illness and treatment; identify and obtain any additional evidence that is needed; and develop a list of questions to ask the ME. All necessary development should be completed before requesting the ME to appear at a hearing. (See > I-2-590 Samples, Sample 4, Interrogatories to Medical Expert, for examples of questions which might be appropriate.)

- The ALJ may use an ME before, during, or after the hearing.

- The ALJ may not use an ME who has treated the claimant in the past.

- The ALJ may not use an ME who has examined the claimant on a consultative basis.

- The ALJ must avoid any off-the-record discussion with the ME. If such a discussion occurs, the ALJ must summarize the discussion on the record at the hearing or enter a written summary of it into the record as an exhibit.

- The ALJ may not ask an ME to provide an opinion on vocational matters even if the ME is a certified VE.

- An ME's opinion must be based on the medical findings and signs, not just the claimant's symptoms.

- The weight an ALJ gives to an ME's opinion depends upon the extent to which the opinion is supported by the medical signs and findings, and is consistent with the other evidence of record.

- An ME's opinion is not binding on the ALJ.



HALLEX I-2-534

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-534 WHEN TO OBTAIN MEDICAL EXPERT OPINION (REVISED 06/94)

A. When an ALJ May Need to Obtain ME Opinion

An ALJ may need to obtain an ME's opinion, either in testimony at a hearing or in responses to written interrogatories, when:

- the ALJ is determining whether a claimant's impairment(s) meets or equals a listed impairment(s);

- the ALJ is determining the usual dosage and effect of drugs and other forms of therapy;

- the ALJ is assessing a claimant's failure to follow prescribed treatment;

- the ALJ is determining the degree of severity of a claimant's mental impairment and is preparing a PRTF (note: the ALJ, not the ME, must actually complete the PRTF);

- the claimant or the claimant's representative has requested the presence of an ME at the hearing and the ALJ agrees that ME testimony is necessary;

- the ALJ has reasonable doubt about the adequacy of the medical record in a case, and believes that an ME may be able to suggest additional relevant evidence;

- the medical evidence is conflicting or confusing, and the ALJ believes an ME may be able to clarify and explain the evidence;

- the significance of clinical or laboratory findings in the record is not clear, and the ALJ believes an ME may be able to explain the findings and assist the ALJ in assessing their clinical significance;

- the ALJ is determining the claimant's residual functional capacity, e.g., the ALJ may ask the ME to explain or clarify the claimant's functional limitations and abilities as established by the medical evidence of record;

- the ALJ has a question about the etiology of a disease or disease process (See > I-2-539 D., Obtaining ME Opinion to Assist in Understanding a Disease Process) and how it may affect the claimant's ability to engage in work activities at pertinent points in time, e.g., the ALJ may ask the ME to explain the nature of an impairment and identify any medically contraindicated activities; or

- the ALJ desires expert medical opinion regarding the onset of an impairment.

B. When the ALJ Must Obtain ME Opinion

The ALJ must obtain an ME's opinion, either in testimony at a hearing or in responses to written interrogatories, when the Appeals Council or a court so orders. In addition, the ALJ must use an ME to evaluate and interpret background medical test data. (See > I-2-514 D., Medical Test Data.)



HALLEX I-2-536

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-536 SELECTING A MEDICAL EXPERT (REVISED 04/94)

A. General

All ALJ contacts with an ME about a case must be in writing or at an open hearing, and all correspondence with the ME must be made part of the record.

When an ALJ determines that ME testimony is needed, the ALJ will inform the claimant and the representative by placing a statement to that effect in the "REMARKS" section of the Notice of Hearing. (See > I-2-315, Notice of Hearing.)

The ALJ or designee will, before the hearing, furnish the ME with copies of the pertinent medical reports and written lay evidence. If additional medical evidence is received at the hearing, the ALJ will provide it to the ME for review before the ME testifies.

The ALJ or designee must select the ME whose expertise is most appropriate to the claimant's diagnosed impairment(s).

An ALJ may never permit an ME to perform an examination of a claimant.

B. HO Staff Recommends Use of ME

Before scheduling a hearing, the ALJ or designee must thoroughly review the case to determine what, if any, additional evidence is needed to decide the case. If a designee performs the review and believes that ME opinion is necessary, the designee will make that recommendation to the ALJ and will also recommend the medical specialty of the ME.

C. ALJ Determines that ME Opinion is Needed

If the ALJ determines (or agrees) that ME opinion is needed, the ALJ will decide:

1. the medical specialty of the ME; and

2. the manner in which to receive the ME opinion (i.e., whether to receive the opinion in testimony at the hearing or in response to written interrogatories). (See > I-2-530, Medical or Vocational Expert Opinion--General.)

D. Selection of ME from RO Roster

Each RO maintains a roster of MEs who have agreed to provide impartial expert opinion pursuant to a BPA with the Office of Hearings and Appeals (OHA). (See > I-2-531, Blanket Purchase Agreements.) The ALJ or designee must select an ME from the roster in rotation to the extent possible; i.e., when an ALJ selects an ME with a particular medical specialty from the roster to provide expert opinion in a case, that ME will go to the bottom of the roster and will not be called again by that ALJ or any other ALJ in the HO until all other MEs on the roster with that medical specialty are called.

If an ALJ decides to use an ME from the roster, the HO staff will assign a purchase order number and complete a Form HA-590 (Contractor's Invoice).

E. Selection of ME Not on RO Roster

An ALJ may use an ME who does not have a BPA with OHA, if the ALJ requires a particular medical specialty not represented on the RO roster, or there are other extenuating circumstances which require the one-time purchase of such ME's services.

The same terms and conditions which apply to an ME providing services pursuant to a BPA also apply to an ME providing services without a BPA. Authorize payment to an ME without a BPA by completing Optional Form 347, Order of Supplies or Services.



HALLEX I-2-538

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-538 OBTAINING MEDICAL EXPERT TESTIMONY (REVISED 04/94)

A. Completion of Form HA-L9

To request an ME to testify at a hearing, the ALJ or HO staff will complete Form HA-L9, Letter to Medical Expert Requesting Attendance at Hearing. The HO staff must modify the form as necessary to adapt it to the specific case and include:

1. all identifying information;

2. the issues to be considered; and

3. the name and telephone number of an HO staff person the ME may contact if he or she has any questions or problems.

B. Distribution of Form HA-L9

Distribute Form HA-L9 as follows:

1. Send the original to the ME, along with any necessary enclosures (See I-2-538 C., below.)

2. Send the white copies to the claimant and the representative, along with a copy of the proposed exhibits.

3. Place the green copy in the CF.

4. Place the pink copy in the HO file.

C. Providing the ME with Relevant Evidence

The ALJ must provide the ME with relevant evidence that will assist the ME in providing the medical opinion. This evidence must include:

1. photocopies of the pertinent evidence arranged in chronological order;

2. a copy of the ME's professional qualifications for verification;

NOTE: Do not include the professional qualifications of other sources.

3. a list of the proposed exhibits using Form HA-540--Exhibits List;

4. copies of all prior correspondence between the ALJ and the ME, if any;

5. a transcript or summary of any medical testimony provided in a prior hearing on the same case; and

6. a copy of pertinent parts of the ME orientation package if there is no BPA with the ME.



HALLEX I-2-539

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-539 THE MEDICAL EXPERT'S TESTIMONY (REVISED 04/94)

A. General

During the opening statement, the ALJ must explain why ME testimony is necessary. The ME may attend the entire hearing, but this is not required.

Before the ME testifies, the ALJ must:

- ensure on the record that the ME has examined all medical evidence of record;

- ensure that the record contains an accurate statement of the ME's professional qualifications;

- give the claimant and the representative an opportunity to ask the ME questions about his or her professional qualifications: and

- Summarize the opening statement or relevant testimony on the record if the ME was not present.

NOTE: ALL ME testimony must be on the record.

The ALJ should take care to elicit useful and objective testimony from the ME. For examples of the types of questions the ALJ might ask, see > I-2-590 Samples, Sample 4, Interrogatories to Medical Expert.

If the ME's reply to an ALJ's question is ambiguous or overly technical, the ALJ must follow-up with more specific questions. An ALJ must not question an ME about any matter which is not within the ME's area of expertise and responsibility. For example, the ALJ must not ask an ME about vocational matters, or how the ALJ should decide the case.

If certain ME testimony is based on an assumption, the ME or ALJ must clearly describe the assumption on the record.

If a claimant raises an objection about an ME's opinion, the ALJ must rule on the objection and discuss any ruling in the decision.

B. Obtaining ME Opinion on Medical Equivalency

In a case requiring a finding on medical equivalency, the ALJ must first ask the ME to describe the claimant's disease process. The ALJ must refer the ME to the Listing of Impairments (Appendix 1 to Subpart P) to ensure that the ME is familiar with how the Listings are used. Next, the ALJ must ask questions to elicit an opinion from the ME about whether the claimant had or has an impairment(s) which equals the Listing.

The question of equivalency arises when:

- for listed impairments, the signs, symptoms and laboratory findings are not identical to those specified for that impairment, but are of equivalent severity;

- for unlisted impairments, the signs, symptoms and laboratory findings are equivalent in severity to those of the most closely related listed impairment; and

- for combined impairments, the combination of all signs, symptoms and laboratory findings reflect medical equivalency to a listed impairment.

C. Obtaining ME Opinion Which Will Help the ALJ Determine the Claimant's Residual Functional Capacity (RFC)

An ALJ may not ask an ME to decide what a claimant's RFC is, or whether a claimant is or is not disabled. Such decisions must be made by the ALJ. However, an ALJ may ask an ME to provide information and opinion(s) which will help the ALJ decide these issues, e.g., an ALJ may ask an ME to describe the impact of an impairment on the claimant's ability to concentrate, remember, or cogitate.

An ALJ also may not ask an ME to decide whether a claimant can work in a competitive work situation or in a particular type of employment, e.g., as a gas station attendant. The vocational aspects of a case (e.g., a claimant's non-medical reasons for leaving his or her former job, vocational difficulties a claimant might experience adjusting to a new job, or the adequacy or inadequacy of a claimant's education) are not within an ME's area of expertise. On the other hand, in a mental impairment case, an ALJ may ask an ME to comment on the impact of a claimant's impairment on his or her ability to adjust to substantial gainful activity.

D. Obtaining ME Opinion to Assist in Understanding a Disease Process

"Disease process" means the stages of a specific disorder and the functional consequences which can be expected at these stages. It includes anticipated laboratory findings and physical limitations that would be expected to occur as the disorder progresses. Certain "disease processes" have characteristic symptoms that may vary from time to time, and limit the individual's ability to perform certain functions. ME opinion about a disease process will often assist the ALJ in determining a claimant's degree of dysfunction and RFC at a particular time.



HALLEX I-2-540

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-540 OBTAINING MEDICAL EXPERT OPINION AFTER THE HEARING (REVISED 04/94)

A. Identifying the Need for ME Opinion After the Hearing

Although these situations occur relatively infrequently, the ALJ may identify the need for ME evidence during or after the hearing. For example, evidence submitted during or after the hearing indicates that the claimant may have an impairment that equals a listed impairment.

B. Obtaining ME Opinion After the Hearing

When an ALJ decides to obtain evidence from an ME after the initial hearing, the ALJ must determine the most appropriate method to obtain this evidence consistent with the claimant's rights with respect to posthearing evidence. (See > I-2-700, Posthearing Actions.) Live testimony with opportunity to orally question the ME is the preferred method for obtaining ME opinion, but written interrogatories may be used. (See > I-2-530, Medical or Vocational Expert Opinion--General.)

NOTE: Regardless of the method used, or whether the claimant is represented, the ALJ must question the ME in lay terms and, to the extent possible, elicit responses in terms that the claimant can understand.

C. Determining the Most Appropriate Method to Obtain ME Opinion After the Hearing

Some of the factors that the ALJ must weigh in determining whether it would be more appropriate to obtain ME opinion in testimony at a supplemental hearing, or in responses to written interrogatories, are:

1. whether and when an ME is available to testify in person;

2. the feasibility of scheduling a hearing at a remote hearing site and the availability of an ME at that location; and

the potential for delays if the ALJ schedules a supplemental hearing.



HALLEX I-2-542

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-542 OBTAINING MEDICAL EXPERT OPINION THROUGH INTERROGATORIES (REVISED 04/94)

A. General

Live testimony with opportunity to question the ME is the preferred method for obtaining ME opinion, but written interrogatories may be used. (See > I-2-530, Medical or Vocational Expert Opinion--General.) Written interrogatories are often used when an ALJ receives posthearing evidence, but can be used at other times in the hearing process. The claimant or representative may ask the ALJ to obtain interrogatories, or the ALJ may decide to use them on his or her own initiative.

B. Preparing Interrogatories

When preparing interrogatories, the ALJ must:

1. phrase each question in a way that will not suggest any specific conclusion, but will elicit a clear and complete response that can ultimately be expressed (to the extent possible) in lay terms (See > I-2-590, Sample 4, Interrogatories to Medical Expert.); and

2. leave sufficient space between the questions for the answers.

C. Determining Whether the Claimant or Representative Has Objections

1. General

Before releasing interrogatories to the ME, the ALJ must transmit the proposed interrogatories to the representative with a copy to the claimant, or to the claimant if not represented, to determine if they object to the use of interrogatories in general, object to any particular interrogatory, or wish to propose other interrogatories. (See > I-2-590 Samples, Sample 8, Letter to Transmit Interrogatories to Claimant or Representative.)

2. Claimant or Representative Objects to Use of Interrogatories in General

If the claimant or representative objects to the use of interrogatories in general, the ALJ must consider the claimant's or representative's reason(s) for believing that the ALJ cannot establish facts relevant to the issues in the case by means of written interrogatories, and rule on the objection. Factors that the ALJ may consider in determining whether to grant a claimant's or representative's request to question an ME at a hearing or supplemental hearing include, but are not limited to:

- the preferability of live testimony as the method for obtaining expert opinion evidence (See > I-2-530, Medical or Vocational Expert Opinion--General.);

- whether a hearing is needed to address the claimant's or representative's allegations of bias on the part of the ME; and

- whether a hearing is needed to address questions about the ME's qualifications.

3. Claimant or Representative Objects to a Particular Interrogatory or Proposes Other Interrogatories

If a claimant or representative objects to a particular interrogatory or proposes other interrogatories, the ALJ must rule on the objection or proposal. Factors that the ALJ may consider in determining whether to revise or expand the interrogatories include, but are not limited to, whether the claimant's or representative's comments or proposed additions are material to the issues in the case and are based on the evidence of record.

4. ALJ Rules Against the Claimant's or Representative's Objection(s) or Proposal(s)

If the ALJ rules against the claimant's or representative's objection(s) or proposal(s), he or she must:

a. inform them in writing of the ruling, and the reason(s) for it;

b. enter a copy of the ruling into the record as an exhibit; and

c. address the objection(s) or proposal(s) and provide the rationale for the ruling in the hearing decision.

5. ALJ Revises or Expands the Interrogatories

If the ALJ revises or expands the interrogatories, he or she must submit the revised or expanded interrogatories to the claimant or representative for further comment. (See > I-2-590 Samples, Sample 9, Letter to Transmit Revised Interrogatories to Claimant or Representative.)

D. Sending the Interrogatories to the ME

1. Initial Transmission of Interrogatories to the ME

After the claimant or representative has responded to the ALJ's proposed interrogatories and all issues have been resolved, or after the claimant or representative fail to respond, the ALJ will send the interrogatories to the ME along with the following:

a. A letter explaining the request and the requested method of response. (See > I-2-590 Samples, Sample 6, Letter to Expert Witness, Written Interrogatories.)

- Include all identifying information in the letter.

- Request a response within 10 days.

- Mark one copy of the letter as an exhibit and place it in the CF.

- Place a copy of the letter in the HO file.

b. Photocopies of the pertinent evidence, arranged in chronological order. Include the following:

- A list of the proposed exhibits (Form HA-540, Exhibits List) and

- A copy of the ME's professional qualifications for verification.


NOTE: Do not include the professional qualifications of any other sources.

c. A transcript or summary of any pertinent testimony provided in an earlier hearing.

d. A statement of the issues in the case.

e. A Form HA-590 (Contractor's Invoice) for signature by the ME.

NOTE: If OHA does not have a BPA with the ME, provide any pertinent ME orientation materials available, and use Optional Form 347 (Order for Supplies or Services) to obtain payment.

f. The name and telephone number of an HO contact person.

g. A self-addressed, postage paid envelope large enough for the ME to return all enclosures.

2. Subsequent Transmission of Interrogatories to an ME

When an ALJ receives new evidence after an ME has provided testimony or responded to interrogatories, and decides to forward the new evidence to the ME for review with interrogatories to determine if it affects the prior testimony or response, the ALJ must:

a. Transmit the interrogatories to the representative with a copy to the claimant, or to the claimant if not represented, to determine if they have any objection or proposal, and rule on any objection or proposal. (See I-2-542 A. through C.)

b. After the claimant or representative has responded and all issues have been resolved, or after the claimant or representative fail to respond, send the interrogatories to the ME with:

- a letter explaining the request and the requested method of response (See > I-2-590 Sample 7, Transmittal Letter to Expert Witness--Evidence Received After Interrogatories. Include all identifying information in the letter and request a response within 10 days.);

- a photocopy of the new evidence;

- copies of pertinent evidentiary documents the ME previously reviewed; and

- the name and telephone number of an HO contact.

c. Distribute the letter as follows:

- send the original to the ME;

- send copies to the claimant and the representative;

- mark one copy of the letter as an exhibit and place it in the CF; and

- place a copy in the HO file.

d. Diary the case for the requested response date, and make the appropriate follow-up contacts.



HALLEX I-2-544

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-544 ACTION WHEN ALJ RECEIVES MEDICAL EXPERT'S RESPONSES TO INTERROGATORIES (REVISED 04/94)

When the ALJ receives an ME's response to his or her interrogatories, the ALJ must:

- Provide a copy of the response to the claimant and the representative and notify them of the right to comment, submit further relevant evidence, propose additional interrogatories to the ME, and request a supplemental hearing with opportunity to question the ME at the supplemental hearing. The ALJ will provide the claimant and the representative with the opportunity to review the ME's response before making it an exhibit, unless they have waived the right to examine the evidence or the evidence supports a fully favorable decision. (See > I-2-730, Proffer Procedures; > I-2-735, Entering Posthearing Evidence; > I-2-590 Samples, Sample 2, Letter to Representative Enclosing Copy of New Evidence; and Sample 3, Letter to Unrepresented Claimant Enclosing Copy of New Evidence.)

- Rule on any objection or request by the claimant or the representative regarding the ME's response to the interrogatories. The claimant or representative may propose submission of additional interrogatories to the ME or request a supplemental hearing with opportunity to question the ME at the supplemental hearing. The claimant is entitled to ask the ME questions to the extent necessary to inquire fully into the matters at issue.

If the claimant requests a supplemental hearing, the ALJ must grant the request, unless the ALJ receives additional documentary evidence that supports a fully favorable decision. If the claimant requests the opportunity to question the ME at the supplemental hearing, the ALJ should apply the provisions of > I-2-530, Medical or Vocational Expert Opinion--General, and > I-2-540, Obtaining Medical Expert Opinion After the Hearing, to determine whether live testimony is the most appropriate method to obtain the ME evidence.

If the ALJ requests the ME to appear at the supplemental hearing, and the ME declines to appear, the ALJ should apply the provisions of > I-2-578, Use of Subpoenas--General, to determine if the claimant should be afforded use of the subpoena to compel the ME to appear. If a subpoena is issued, the procedures in > I-2-580, Preparation and Service of a Subpoena, and those in > I-2-582, Noncompliance with a Subpoena, apply.

- Mark as exhibits and enter into the record all correspondence between the ALJ and the ME, admissible questions and responses, additional interrogatories and responses, and proffer documents, and include in the hearing decision the rationale for ruling against any objection.



HALLEX I-2-545

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-545 ACTION WHEN ALJ RECEIVES NEW EVIDENCE AFTER A MEDICAL EXPERT HAS PROVIDED AN OPINION (ADDED 04/94)

When an ALJ receives new evidence after an ME has provided testimony or responded to interrogatories, the ALJ may decide to request the ME to review the new evidence to determine if it affects the ME's testimony or response. If an ALJ so decides, the ALJ must determine whether to receive the additional comments from the ME via interrogatories or in testimony at a supplemental hearing. (See > I-2-530, Medical or Vocational Expert Opinion--General.) The factors in > I-2-540 C. that 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.

If the ALJ decides to forward the new evidence to the ME for review through interrogatories, he or she will use the procedures in > I-2-542 D. 2., Subsequent Transmission of Interrogatories to an ME.

If the ALJ determines that a supplemental hearing is necessary, the ALJ will notify the claimant. The HO staff will arrange for the presence of the ME at the supplemental hearing, using the procedures set forth in > I-2-538, Obtaining Medical Expert Testimony.

NOTE: If the ME who testified at the hearing or provided responses to written interrogatories is no longer available to either review the new evidence through interrogatories or appear at a supplemental hearing, the ALJ will obtain the services of a different ME, following the procedures set forth in > I-2-536, Selecting a Medical Expert.



HALLEX I-2-548

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-548 VOCATIONAL EXPERTS--GENERAL (REVISED 04/94)

VEs are vocational professionals who provide impartial expert opinion during the hearings process on claims under title II and title XVI of the Social Security Act or claims for Black Lung Benefits by either testifying at hearings or providing written responses to interrogatories.

The following general guidelines apply to an ALJ's use of a VE in the hearing proceedings:

- The ALJ may use a VE before, during, or after the hearing.

- The ALJ must avoid any off-the-record discussion with the VE. If such a discussion occurs, the ALJ must summarize the discussion on the record at the hearing or by entering a written summary into the record as an exhibit.

- The ALJ may not use a VE who has had prior professional contact with the claimant.

- The ALJ may not ask a VE to provide an opinion on psychological (i.e., medical) matters even if the VE is a certified mental health professional. (See > I-2-561, Use of Dually-Qualified Vocational and Medical Experts.)

- The VE's opinion is not binding on the ALJ. The ALJ must weigh a VE's opinion along with all other evidence.



HALLEX I-2-550

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-550 WHEN TO OBTAIN VOCATIONAL EXPERT OPINION (REVISED 04/94)

A. When an ALJ May Need to Obtain VE Opinion

An ALJ may need to obtain a VE's opinion, either in testimony at a hearing or in written responses to interrogatories, when:

1. the ALJ is determining whether the claimant's impairment(s) prevents the performance of past relevant work [Exception: In the Fourth Circuit, adjudicators may not use a VE or other vocational specialist when making a decision or determination at step four of the sequential evaluation process (step seven in Continuing Disability Review cases) about whether an individual can perform past relevant work. See Acquiescence Ruling (AR) > 90-3(4), Smith v. Bowen]; or

2. the ALJ is determining whether the claimant's impairment(s) prevents the performance of any other work and he or she cannot decide the case under any of the tables in Appendix 2, Subpart P of Regulations No. 4, because:

- the claimant's residual functional capacity falls between two exertional levels; e.g., the claimant may be able to perform more than the full range of sedentary work, but less than the full range of light work;

- the claimant's sole impairment is nonexertional; or

- the claimant has a combination of exertional and nonexertional impairments; e.g., back impairments with limited sitting or standing tolerance.

B. When the ALJ Must Obtain VE Opinion

The ALJ must obtain a VE's opinion, either in testimony at a hearing or in responses to written interrogatories, when directed by the Appeals Council or a court.



HALLEX I-2-552

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-552 SELECTING A VOCATIONAL EXPERT (REVISED 04/94)

A. General

All ALJ contact with a VE about a case must be in writing or at an open hearing, and all correspondence with the VE must be made part of the record.

When an ALJ determines that VE testimony is needed, the ALJ or designee will inform the claimant and the representative by placing a statement to that effect in the "REMARKS" section of the Notice of Hearing. (See > I-2-315, Notice of Hearing.)

The ALJ or designee will, before the hearing, furnish the VE with copies of all evidence relating to the claimant's vocational history. If additional vocational evidence is received at the hearing, the ALJ will provide it to the VE for review before the VE testifies.

B. HO Staff Recommends Use of VE

Before scheduling the hearing, the ALJ or designee must thoroughly review the case to determine what, if any, additional evidence is needed to decide the case. If a designee performs the review and believes that VE opinion is needed, the designee will make that recommendation to the ALJ.

C. ALJ Determines that VE Opinion is Needed

If the ALJ determines (or agrees) that VE opinion is needed, the ALJ will decide the manner in which to receive the VE opinion (i.e., whether to receive the opinion in testimony at the hearing or in response to written interrogatories). (See > I-2-530, Medical or Vocational Expert Opinion--General.)

D. Selection of VE from RO Roster

Each RO maintains a roster of VEs who have agreed to provide impartial expert opinion pursuant to a BPA with OHA. (See > I-2-531, Blanket Purchase Agreements.) The ALJ or designee must select a VE from the roster in rotation to the extent possible; i.e., when an ALJ selects a VE to provide expert opinion in a case, that VE will go to the bottom of the roster and will not be called again by that ALJ or any other ALJ in the HO until all other VEs on the roster are called.

If an ALJ decides to use a VE from the roster, the HO staff will assign a purchase order number and complete a Form HA-590 (Contractor's Invoice).

E. Selection of VE Not on RO Roster

An ALJ may use a VE who does not have a BPA with OHA if no VE on the roster is available, or there are other extenuating circumstances which require the one-time purchase of such VE's services.

The same terms and conditions that apply to a VE providing services pursuant to a BPA also apply to a VE providing services without a BPA. Authorize payment to a VE without a BPA by completing Optional Form 347, Order for Supplies or Services.



HALLEX I-2-554

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-554 OBTAINING VOCATIONAL EXPERT TESTIMONY (REVISED 04/94)

A. Requesting VE Testimony--Completion of Form HA-L8

To request a VE to testify at a hearing, the ALJ or the HO staff will complete Form HA-L8, Letter to Vocational Consultant Requesting Attendance at Hearing. The HO staff must modify the form as necessary to adapt it to the specific case and include:

1. all identifying information;

2. the issues to be considered; and

3. the name and telephone number of an HO staff person the VE may contact if he or she has any questions or problems.

B. Distribution of Form HA-L8

Distribute Form HA-L8 as follows:

1. Send the original to the VE, along with any necessary enclosures (See I-2-554 C., below.)

2. Send the white copies to the claimant and the representative, along with a copy of the proposed exhibits.

3. Place the green copy in the CF.

4. Place the pink copy in the HO file.

C. Providing the VE with Relevant Evidence

The ALJ must provide the VE with relevant evidence that will assist the VE in providing the vocational opinion. This evidence must include:

1. photocopies of the pertinent evidence arranged in chronological order;

2. a copy of the VE's professional qualifications for verification;

NOTE: Do not include the professional qualifications of other sources.

3. a list of the proposed exhibits using Form HA-540, Exhibits List;

4. copies of all prior correspondence between the ALJ and the VE, if any;

5. a transcript or summary of any vocational testimony provided in a prior hearing on the same case; and

a copy of pertinent parts of the VE orientation package if there is no BPA with the VE.



HALLEX I-2-555

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-555 THE VOCATIONAL EXPERT'S TESTIMONY (REVISED 04/94)

During the opening statement, the ALJ must explain why VE testimony is necessary. The VE may attend the entire hearing, but this is not required.

Before the VE testifies, the ALJ must:

- ensure on the record that the VE has examined all vocational evidence of record;

- ensure that the record contains an accurate statement of the VE's professional qualifications;

- give the claimant and the representative an opportunity to ask the VE questions about his or her professional qualifications; and

- summarize the opening statement or relevant testimony on the record (e.g., testimony regarding the claimant's vocational history) if the VE was not present.

NOTE: All VE testimony must be on the record.

The ALJ should take care to elicit useful and objective testimony from the VE. For examples of the types of questions the ALJ might ask, see > I-2-590, Samples, Sample 5, Interrogatories to Vocational Expert.

If the VE's reply to an ALJ's question is ambiguous or overly technical, the ALJ must follow-up with more specific questions. An ALJ must not question a VE about any matter which is not within the VE's area of expertise and responsibility. For example, the ALJ must not ask a VE about medical matters or how the ALJ should decide the case.

If certain VE testimony is based on an assumption, the VE or ALJ must clearly describe the assumption on the record.

If a claimant raises an objection about a VE's opinion, the ALJ must rule on the objection and discuss any ruling in the decision.



HALLEX I-2-556

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-556 OBTAINING VOCATIONAL EXPERT OPINION AFTER THE HEARING (REVISED 04/94)

A. Identifying the Need for VE Opinion After the Hearing

Although these situations occur relatively infrequently, the ALJ may identify the need for VE evidence during or after the hearing. For example:

- The claimant may submit evidence during or after the hearing which establishes the existence of a severe impairment which precludes use of the medical-vocational "Grid" regulations.

- Evidence submitted after the hearing indicates that the claimant's functional limitations differ from those covered in the hypothetical questions to which the VE responded at the hearing.

B. Obtaining VE Opinion After the Hearing

When an ALJ decides to obtain evidence from a VE after the initial hearing, the ALJ must determine the most appropriate method to obtain this evidence consistent with the claimant's rights with respect to posthearing evidence. (See > I-2-700, Posthearing Actions.) Live testimony with opportunity to question the VE is the preferred method for obtaining VE opinion, but written interrogatories may be used. (See > I-2-530, Medical or Vocational Expert Opinion--General.)

NOTE: Regardless of the method used, or whether the claimant is represented, the ALJ must question the VE in lay terms and, to the extent possible, elicit responses in terms which the claimant can understand.

C. Determining the Most Appropriate Method to Obtain VE Opinion After the Hearing

Some of the factors that the ALJ must weigh in determining whether it is more appropriate to obtain the evidence by requesting a VE to appear and testify at a supplemental hearing or answer written interrogatories are:

1. whether and when a VE is available to testify in person;

2. the feasibility of scheduling a hearing at a remote hearing site and the availability of a VE at that location; and

3. the potential for delays if the ALJ schedules a supplemental hearing.



HALLEX I-2-557

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-557 OBTAINING VOCATIONAL EXPERT OPINION THROUGH INTERROGATORIES (REVISED 04/94)

A. General

Live testimony with opportunity to question the VE is the preferred method for obtaining VE opinion, but written interrogatories may be used. (See > I-2-530, Medical or Vocational Expert Opinion--General.) Written interrogatories are often used when the ALJ receives posthearing evidence, but can be used at other points in the hearing process. The claimant or representative may ask the ALJ to obtain interrogatories, or the ALJ may decide to use them on his or her own initiative.

B. Preparing Interrogatories

When preparing interrogatories, the ALJ must:

1. phrase each question in a way that will not suggest any specific conclusion, but will elicit a clear and complete response that can ultimately be expressed (to the extent possible) in lay terms (See > I-2-590, Sample 5, Interrogatories to Vocational Expert.); and

2. leave sufficient space between the questions for the answers.

C. Determining Whether the Claimant or Representative Has Objections

1. General

Before releasing the interrogatories to the VE, the ALJ must transmit the proposed interrogatories to the representative with a copy to the claimant, or to the claimant if not represented, to determine if they object to the use of interrogatories in general, object to any particular interrogatory, or wish to propose other interrogatories. (See > I-2-590 Samples, Sample 8, Letter to Transmit Interrogatories to Claimant or Representative.)

2. Claimant or Representative Objects to Use of Interrogatories in General

If the claimant or representative objects to the use of interrogatories in general, the ALJ must consider the claimant's or representative's reason(s) for believing that the ALJ cannot establish facts relevant to the issues in the case by means of written interrogatories, and rule on the objection. Factors that the ALJ may consider in determining whether to grant a claimant's or representative's request to question a VE at a hearing or supplemental hearing include, but or not limited to:

- the preferability of live testimony as the method for obtaining expert opinion evidence (See > I-2-530, Medical or Vocational Expert Opinion--General.);

- whether a hearing is needed to address the claimant's or representative's allegations of bias on the part of the VE; and

- whether a hearing is needed to address the VE's qualifications.

3. Claimant or Representative Objects to a Particular Interrogatory or Proposes Other Interrogatories

If a claimant or representative objects to a particular interrogatory or proposes other interrogatories, the ALJ must rule on the objection or proposal. Factors that the ALJ may consider in determining whether to revise or expand the interrogatories include, but are not limited to, whether the claimant's or representative's comments or proposed additions are material to the issues in the case and are based on the evidence of record.

4. ALJ Rules Against the Claimant's or Representative's Objection(s) or Proposal(s)

If the ALJ rules against the claimant's or representative's objection(s) or proposal(s), he or she must:

a. inform them in writing of the ruling, and the reason(s) for it;

b. enter a copy of the ruling into the record as an exhibit; and

c. address the objection(s) or proposal(s) and provide the rationale for the ruling in the hearing decision.

5. ALJ Revises or Expands the Interrogatories

If the ALJ revises or expands the interrogatories, he or she must submit the revised or expanded interrogatories to the claimant or representative for further comment. (See > I-2-590 Samples, Sample 9, Letter to Transmit Revised Interrogatories to Claimant or Representative.)

D. Sending Interrogatories to the VE

1. Initial Transmission of Interrogatories to the VE

After the claimant or representative has responded to the ALJ's proposed interrogatories and all issues have been resolved, or after the claimant or representative fail to respond, the ALJ will send the interrogatories to the VE along with the following:

a. A letter explaining the request and the requested method of response. (See > I-2-590 Samples, Sample 6, Letter to Expert Witness, Written Interrogatories.)

- Include all identifying information in the letter.

- Request a response within 10 days.

- Mark one copy of the letter as an exhibit and place it in the CF.

- Place a copy of the letter in the HO file.

b. Photocopies of the pertinent evidence, arranged in chronological order. Include the following:

- A list of the proposed exhibits (Form HA-540, Exhibits List) and

- A copy of the VE's professional qualifications for verification.


NOTE: Do not include the professional qualifications of any other sources.

c. A transcript or summary of any pertinent testimony provided in an earlier hearing.

d. A statement of the issues in the case.

e. A Form HA-590 (Contractor's Invoice) for signature by the VE.

NOTE: If OHA does not have a BPA with the VE, provide any pertinent VE orientation materials available, and use Optional Form 347 (Order for Supplies or Services) to obtain payment.

f. The name and telephone number of an HO contact person.

g. A self-addressed, postage paid envelope large enough for the VE to return all enclosures.

2. Subsequent Transmission of Interrogatories to a VE

When an ALJ receives new evidence after a VE has provided testimony or responded to interrogatories, and decides to forward the new evidence to the VE for review with interrogatories to determine if it affects the prior testimony or response, the ALJ must:

a. Transmit the interrogatories to the representative with a copy to the claimant, or to the claimant if not represented, to determine if they have any objection or proposal, and rule on any objection or proposal. (See I-2-557 A. through C.)

b. After the claimant or representative has responded and all issues have been resolved, or after the claimant or representative fail to respond, send the interrogatories to the VE with:

- a letter explaining the request and the requested method of response (See > I-2-590 Samples, Sample 7, Transmittal Letter to Expert Witness--Evidence Received After Interrogatories. Include all identifying information in the letter and request a response within 10 days.);

- a photocopy of the new evidence;

- copies of pertinent evidentiary documents the VE previously reviewed; and

- the name and telephone number of an HO contact.

c. Distribute the letter as follows:

- send the original to the VE;

- send copies to the claimant and the representative;

- mark one copy of the letter as an exhibit and place it in the CF; and

- place a copy in the HO file.

d. Diary the case for the requested response date, and make the appropriate follow-up contacts.



HALLEX I-2-558

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-558 ACTION WHEN ALJ RECEIVES VOCATIONAL EXPERT'S RESPONSES TO INTERROGATORIES (REVISED 04/94)

When the ALJ receives a VE's response to his or her interrogatories, the ALJ must:

- Provide a copy of the response to the claimant and the representative and notify them of the right to comment, submit further relevant evidence, propose additional interrogatories to the VE, and request a supplemental hearing with opportunity to question the VE at the supplemental hearing. The ALJ will provide the claimant and the representative with the opportunity to review the VE's response before making it an exhibit, unless they have waived the right to examine the evidence or the evidence supports a fully favorable decision. (See > I-2-730, Proffer Procedures; > I-2-735, Entering Posthearing Evidence; > I-2-590 Sample 2, Letter to Representative Enclosing Copy of New Evidence; and > I-2-590 Sample 3, Letter to Unrepresented Claimant Enclosing Copy of New Evidence.)

- Rule on any objection or request by the claimant or the representative regarding the VE's response to the interrogatories. The claimant or representative may propose submission of additional interrogatories to the VE or request a supplemental hearing with opportunity to question the VE at the supplemental hearing. The claimant is entitled to ask the VE questions to the extent necessary to inquire fully into the matters at issue.

If the claimant requests a supplemental hearing, the ALJ must grant the request, unless the ALJ receives additional documentary evidence that supports a fully favorable decision. If the claimant requests the opportunity to question the VE at the supplemental hearing, the ALJ should apply the provisions of > I-2-530, Medical or Vocational Expert Opinion--General, and > I-2-556, Obtaining Vocational Expert Opinion After the Hearing), to 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 should apply the provisions of > I-2-578, Use of Subpoenas--General, to determine if the claimant should be afforded use of the subpoena to compel the VE to appear. If a subpoena is issued, the procedures in > I-2-580, Preparation and Service of a Subpoena, and those in > I-2-582, Noncompliance with a Subpoena, apply.

- Mark as exhibits and enter into the record all correspondence between the ALJ and the VE, admissible questions and responses, additional interrogatories and responses, and proffer documents (including responses), and include in the hearing decision the rationale for ruling against any objection.



HALLEX I-2-560

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Securing Evidence

Chapter: I-2-500

June 30, 1994

Current through March 1997

I-2-560 ACTION WHEN ALJ RECEIVES NEW EVIDENCE AFTER A VOCATIONAL EXPERT HAS PROVIDED AN OPINION (ADDED 04/94)

When an ALJ receives new evidence after a VE has provided testimony or responded to interrogatories, the ALJ may decide to request the VE to review the new evidence to determine if it affects the VE's testimony or response. If an ALJ so decides, the ALJ must determine whether to receive the additional comments from the VE via interrogatories or in testimony at a supplemental hearing. (See > I-2-530, Medical or Vocational Expert Opinion--General.) The factors in > I-2-556 C. that 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.

1. If the ALJ decides to forward the new evidence to the VE for review through interrogatories, he or she will use the procedures in > I-2-557 D. 2., Subsequent Transmission of Interrogatories to a VE.

2. If the ALJ determines that a supplemental hearing is necessary, the ALJ will notify the claimant. The HO staff will arrange for the presence of the VE at the supplemental hearing, using the procedures set forth in > I-2-554, Obtaining Vocational Expert Testimony.

NOTE: If the VE who testified at the hearing or provided responses to written interrogatories is no longer available to either review the new evidence through interrogatories or appear at a supplemental hearing, the ALJ will obtain the services of a different VE, following the procedures set forth in > I-2-552, Selecting a Vocational Expert.


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