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HALLEX I-2-561

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-2-561 USE OF DUALLY-QUALIFIED VOCATIONAL AND MEDICAL EXPERTS (REVISED 04/94)

A. General

In general, the rosters of MEs and VEs are sufficient to meet OHA's needs for expert witness testimony. Except as provided below, OHA will not authorize use of an individual who possesses both medical and vocational specialties to serve as both an ME and a VE. If an individual applies to act as both an ME and VE and meets the qualification standards for both, OHA will assess the HO's expert witness needs and offer to place the individual on either the ME or the VE roster. For the duration of the one-year BPA, the HO may use that expert only in the capacity provided for in the BPA.

However, because of the lack of available MEs and VEs near some remote hearing sites and the unwillingness of some experts to travel to remote hearing sites, the RO may, in exceptional circumstances, enter into a dual BPA with individuals who are qualified as both ME and VE.

Dual BPAs are permissible only when the HO documents to the satisfaction of the Regional Chief Administrative Law Judge (RCALJ) that the ME or VE roster is insufficient to meet the HO's current needs for expert testimony. Because of OHA's recruitment efforts, this situation should seldom occur. The HO may use a dually-qualified expert as either an ME or VE, but not as both in the same case.

B. HO Justification

If an HO wishes to have an individual available as both an ME and VE or to renew a dual BPA, the Hearing Office Chief Administrative Law Judge (HOCALJ) must send a written justification to the RCALJ. The justification must contain:

1. a list of the site(s) at which the expert will be used and in what primary capacity; i.e., as an ME or a VE;

2. a resume from the expert documenting his or her qualifications to testify as both an ME and a VE and a statement of availability for the listed site(s);

3. an explanation of why psychiatrists or clinical psychologists (or VEs, if applicable) on the HO's roster or neighboring HOs' rosters are unavailable to testify at the listed site(s);

4. an estimate of the number of cases on an annual basis in which the expert will be used as an ME or a VE; and

5. a summary of the recruitment efforts by the HO, within the last six months, to identify individuals or potential sources of clinical psychologists or psychiatrists (or VEs, if applicable) to serve as expert witnesses at the listed site(s).

C. RO Review of HO Justification

The RCALJ will review the justification and take the following actions:

1. Return to the HO any justification that does not comply with the requirements listed above.

2. Decline to grant a dual BPA if:

a. the HO has psychiatrists or clinical psychologists (or VEs, if applicable) on its roster who are available to testify at the site(s) listed;

b. neighboring HOs have clinical psychologists or psychiatrists (or VEs, if applicable) on their rosters who would be available at the site(s) listed; or

c. the RO can recruit a qualified expert within 60 days.

3. Defer a determination if neither the RO nor the requesting HO have made any recruitment efforts within the last six months from the date of the HO request for a dual BPA, until after assessing the potential for recruiting a qualified individual(s).

4. After consultation with the Office of the Chief Administrative Law Judge, enter into a dual BPA if the circumstances demonstrate that it is the only way to obtain expert testimony at the listed site(s). The BPA will be restricted to the listed site(s).

If the RO grants a dual BPA, the RO and the HO must continue recruitment efforts. As soon as the RO recruits an additional expert(s) and there is no longer a need to use the dual expert in both capacities, the RO will notify both the HO and the expert with the dual BPA that he or she will only be used as a VE or ME (whichever is applicable) for the remaining period of the arrangement.


HALLEX I-2-562

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-2-562 NON-MEDICAL EVIDENCE--GENERAL (REVISED 04/94)

A. Determining Whether the Evidence Is Sufficient for the ALJ to Make Determinations Regarding Relevant Non-Medical Issues

The ALJ or an HO staff person the ALJ designates must review all of the evidence in the record before the hearing to determine whether it is sufficient for a full and fair inquiry into the matters at issue, including such issues as the claimant's insured status, work history, education, resources and income, and relationship and dependency. If it is not, the HO staff must undertake appropriate development and make every effort to obtain the needed evidence before the hearing. (See > I-2-101, Prehearing Case Analysis and Workup--General, and > I-2-105, Conducting Prehearing Case Analysis and Workup.)

B. Developing Non-Medical Evidence

If this review indicates that additional non-medical evidence is needed, the HO staff must undertake appropriate development. The HO staff must make every effort to obtain all essential documentary evidence early enough to allow the ALJ sufficient time to consider the evidence before the hearing.


HALLEX I-2-564

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-2-564 OBTAINING NON-MEDICAL EVIDENCE FROM THE CLAIMANT (REVISED 04/94)

A. Requesting the Claimant to Obtain Evidence

1. Examples of documents which the claimant can provide:

- Pay stubs, W-2 Forms, copies of tax returns or other information for years in which wage information is required.

- Birth certificates or other documents proving age or relationship.

- Bank statements, securities, certificates and other evidence of resources.

- Statements from friends, relatives or employers who have information pertinent to the issues.

2. Request the representative (or the claimant, if unrepresented) to provide any such evidence:

- Diary the case for 15 days.

- If the requested evidence is not received by the diary date, contact the claimant or representative again following the general guidelines contained in > I-2-320 C., Acknowledgement Form Not Returned.

B. Refusal by the Claimant to Submit Evidence

If a claimant refuses to submit such evidence, follow the procedures in > I-2-524, Claimant Fails or Refuses to Submit Requested Evidence or Undergo a Consultative Examination or Test.



HALLEX I-2-568

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-2-568 OBTAINING NON-MEDICAL EVIDENCE DIRECTLY FROM THE SOURCE (REVISED 04/94)

A. Obtaining Non-Medical Evidence

If the ALJ determines that the claimant and the claimant's representative cannot provide the needed evidence, or that it would be more efficient to contact the source directly, the ALJ, or the HO staff under the ALJ's direction, will contact the source, either by telephone or in writing, and request the needed evidence. Follow the procedure set forth in > I-2-514 B., Requesting Evidence Directly From a Treating Source or Source of Record.



HALLEX I-2-570

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-2-570 OBTAINING EVIDENCE THROUGH AN SSA FIELD OFFICE (REVISED 04/94)

The ALJ, or the HO staff under the ALJ's direction, may request the servicing field office (FO) to assist them in obtaining needed evidence if attempts to obtain the needed evidence through the claimant and the claimant's representative, or directly from the source, are unsuccessful.

A. Preparation of Request for FO Assistance

1. To request FO assistance, the ALJ or the HO staff will prepare a memorandum to the manager of the servicing FO which includes:

- a specific request for assistance;

- the location of the source;

- the reason the information is needed;

- the name and telephone number of a person in the HO that the FO can contact if they have any questions or problems; and

- a reasonable due date.

2. Send copies of the memorandum to the claimant and the representative, if any, to inform them of the request for FO assistance.

3. Place a copy of the memorandum in the CF.

4. Diary the request based upon the due date indicated in the memorandum. Make follow up contacts with the FO if the requested evidence is not received by the diary date.

B. Evidence Requested Through FO Is Not Received, or Is Inadequate or Incomplete

When evidence requested through the FO is not received, or is inadequate or incomplete, the HO staff will contact the FO by telephone or memorandum to ascertain why the evidence was not provided, or is inadequate or incomplete. If the ALJ is not satisfied with the reasons given by the FO, and the evidence is essential, the ALJ may request RO assistance.



HALLEX I-2-571

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-2-571 FIELD OFFICE EMPLOYEE AS A WITNESS (REVISED 04/94)

When an ALJ decides that the testimony of a particular FO employee is needed in a case (e.g., to resolve conflicting statements in file), he or she should request the employee's appearance by memorandum to the FO (original and one copy) routed through SSA's Assistant Regional Commissioner (ARC) of the appropriate region. The memorandum should provide pertinent information, including the reason for the request, and the place, date, and time of the hearing. The ALJ will send a copy of the memorandum to the Regional Chief ALJ, the claimant and representative, if any, and place a copy in the CF. In an emergency, with the ARC's prior approval, the ALJ may send the request directly to the FO Manager.



HALLEX I-2-572

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-2-572 EARNINGS RECORD INFORMATION--GENERAL (REVISED 04/94)

The earnings record will usually be fully developed when the CF is received in the HO. However, the ALJ or the HO staff must undertake appropriate development if there is any reason to believe that the most recent earnings information in the CF does not accurately reflect all of the claimant's earnings, or if clarification of the earnings information is needed. The ALJ may need current earnings information to:

- update the existing record; e.g., the claimant's testimony at the hearing indicates that he or she returned to work after the alleged onset date (AOD), and the most recent earnings information in the CF does not show earnings after the AOD;

- clarify quarters denoted by pound (#) signs;

- establish or clarify the claimant's work history; or

- obtain the names and addresses of the claimant's employers.

It is not necessary to verify information on the earnings record, unless there is a reason to doubt its accuracy.


HALLEX I-2-574

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-2-574 OBTAINING EARNINGS RECORD INFORMATION (REVISED 06/94)

A. Posted Earnings

Access SSA's mainframe computers through SSA's Master File Query Menu to develop for posted earnings record information. In most cases, an online benefit estimate, e.g., a Summary Earnings Query (SEQY), Detail Earnings Query (DEQY), or Primary Insurance Amount Estimate (PIAEST) query will provide the needed information. (See > I-3-112 B., Request for Earnings Information--Types of Queries.)

B. Unposted Earnings

Unposted earnings information is not available electronically, e.g., information about earnings during calendar years before 1978 or information about earnings which were reported under an incorrect name or Social Security number.

When earnings are reported under an incorrect name or Social Security number, the Office of Central Records Operations (OCRO) does not post the earnings to an earnings record but rather holds the earnings report in a suspense file until it knows the worker's correct name and Social Security number.

When an ALJ needs information about unposted earnings, and the worker cannot provide independent corroborative evidence of such earnings, the HO staff may request OCRO to manually search (scout) its records. The HO staff may make the scouting request by completing a Form HA-534-U3, Request for Earnings Record Information, and mailing it to OCRO or by telephoning OCRO and providing the same information.

When the HO staff requests information or evidence from OCRO, it should diary the case for 45 days. If OCRO does not respond within 45 days, the HO staff should make a follow-up contact with OCRO by mail (resubmitting the Form HA-534-U3) or telephone.

C. Other Uses of Form HA-534-U3

Form HA-534-U3 may also be used to request an employer's employer identification number (EIN), a copy of an individual's application for a Social Security number, copies of actual reports of earnings, or information regarding the manner in which earnings were reported. The same diary and follow-up procedures discussed above will apply.


HALLEX I-2-576

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division I: General Subjects

Subject: Litigation-related Inquiries

Chapter: I-1-500

June 30, 1994

Current through March 1997

I-2-576 OBTAINING ASSISTANCE IN PROCESSING FOREIGN CLAIMS AND EVIDENCE (REVISED 04/94)

A. Obtaining Translation of Foreign Language Document

If documents necessary for the development of a claim are in a foreign language, obtain a translation from an authorized translator of the HO, FO, the Central Translation Section in the Office of International Operations (OIO) in the Office of Disability and International Operations (ODIO), or Headquarters, OHA.

- The document must be translated on Form SSA-533.

- The translator sign the translation.

- A translation form must include any descriptive information, such as the language involved, the type of document, the issuing agency, etc.

- The translation must be of the original document or a certified copy.

- The original document and the translation must be made exhibits.

B. Obtaining Assistance of ODIO

ODIO has overall responsibility for the administration of Social Security programs abroad, including liaison and coordination, as well as FO and program service center functions. The ALJ must request assistance from ODIO through the OHA RO.

C. Obtaining Foreign Law Interpretation

An ALJ may not take administrative notice of foreign law. Therefore, the ALJ must develop adequate proof of relevant foreign law and admit this evidence into the record at the hearing. If the ALJ needs proof or interpretation of a foreign law, he or she must request the information from the Office of the General Counsel (OGC) through the OHA RO.

D. Obtaining Foreign Evidence

SSA uses the FOs located on the Canadian and Mexican borders to obtain development in those countries, and has agreements with other agencies for obtaining development in other countries.

- For development in Canada and Mexico, the ALJ or HO staff must request the development through the appropriate border area FO by following the procedure outlined in > I-2-570, Obtaining Evidence Through an SSA Field Office.

- For development in other countries, the ALJ or HO staff must request the development through the OHA RO.

NOTE: For information concerning HO jurisdiction in processing foreign claims, see > I-2-072, Assigning and Processing Requests for Hearing Filed by Claimants Who Do Not Reside in the United States.


HALLEX I-2-577

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-2-577 OBTAINING A DUPLICATE CASSETTE RECORDING OR TRANSCRIPT OF A HEARING (REVISED 04/94)

A. Claimant or Representative Requests a Duplicate Cassette Recording or Transcript of a Hearing

1. Request for Duplicate Cassette Recording--Original Cassette Is in the HO

If a claimant or representative requests a duplicate cassette recording of a hearing, and the original cassette recording is in the HO, duplicate the original cassette recording and provide the duplicate to the requester.

NOTE: If the HO sees a substantial increase in cassette duplication requests and the HO cannot comply with the requests without creating delays in processing other workloads, inform the requester that providing a duplicate cassette(s) could delay issuing the hearing decision. Also inform the requester that he or she may request a copy of the cassette from the Appeals Council after the ALJ issues decision (except where the decision is a favorable decision in a Medicare case listed in > I-2-850, in which instance the requester should be told that a copy of the cassette may be requested from the office to which the claim file will be sent). However, if the requester wants a duplicate cassette immediately, the HO must comply with the request.

2. Request for Transcript--Original Cassette Recording Is in the HO

If a claimant or representative requests a transcript of a hearing, and the original cassette recording is in the HO, inform the requestor that the HO does not routinely prepare transcripts (or have them prepared); the HO generally prepares a transcript only if the ALJ needs a transcript in order to issue a decision or dismissal. However, a duplicate cassette can be provided at no charge.

a. If the requestor will accept a duplicate cassette recording, duplicate the original cassette recording and provide the duplicate to the requestor at no charge.

b. If the requestor does not want a duplicate cassette recording and continues to want a transcript, inform the requestor that he or she may request a transcript after the ALJ issues a decision or dismissal. If the requestor wants a transcript after the ALJ issues a decision or dismissal. If the requestor wants a transcript at that time, he or she should send a written request to:

Appeals Council

Social Security Administration

Office of Hearings and Appeals

5107 Leesburg Pike

Falls Church, Virginia 22041-3255.

The Appeals Council will inform the requestor of the cost of the transcript and how to send payment. (See > I-3-084, OAO Branch Screening for Requested Extensions of Time or For Copies of Material.)

3. Request for Duplicate Cassette Recording or Transcript--Original Cassette Recording Is Not in the HO

a. Request is for Program Purposes

If a claimant or representative requests a duplicate cassette recording or transcript of a hearing for program purposes (i.e., for use in pursuing the claimant's Social Security claim), and the original cassette recording is not in the HO:

- If the request is in writing, acknowledge the request in writing, and send the request with a copy of the written acknowledgement to the Appeals Council at the address in A.2.b. above; or

- If the request is oral, prepare a Memorandum for the File to document the request, and send the memorandum to the Appeals Council at the address in A.2.b. above.

b. Request is Not for Program Purposes

If a claimant or representative requests a duplicate cassette recording or transcript of a hearing, the request is not for program purposes (i.e., not for use in pursuing the claimant's Social Security claim), and the original cassette recording of the hearing is not in the HO:

- If the request is in writing, acknowledge the request in writing, and send the request with a copy of the written acknowledgement to:

Social Security Administration

Office of Hearings and Appeals

Division of Litigation, Analysis and

Implementation, FOIA/PA Staff

5107 Leesburg Pike, Suite 702

Falls Church, Virginia 22041-3200

- If the request is oral, prepare a Memorandum for the File to document the request, and send the memorandum to the FOIA/PA Staff at the above address.

B. Third Party Requests a Transcript or Duplicate Cassette Recording of a Hearing

If a third party requests a transcript or duplicate cassette recording of a hearing for any reason:

1. If the request is in writing, acknowledge the request in writing and forward the request with a copy of the written acknowledgement to the FOIA/PA Staff at the address in A.3.b. above. If the original cassette is in the HO, prepare a duplicate cassette, send the duplicate to the FOIA/PA Staff with the request and copy of the written acknowledgement, and retain the original cassette in the HO.

2. If the request is oral, prepare a Memorandum for the File to document the request, and send the memorandum to the FOIA/PA Staff at the address in A.3.b. above. If the original cassette is in the HO, prepare a duplicate cassette, send the duplicate to the FOIA/PA Staff with the Memorandum for the File, and retain the original cassette in the HO.


C. ALJ Needs Transcript

An ALJ should request a transcript of a hearing cassette only when he or she would not be able to reach a well-reasoned, defensible decision without it.

NOTE: Contract limitations prohibit an uncontrolled influx of ALJ requests, and extensive use of this service would have a serious negative impact upon hearing processing times. Furthermore, the entire contracting process was based upon justifications for providing transcripts at the court level, including justifications for the timeframes imposed upon the contractor and liquidated damages assessed for late returns and retypes. A burgeoning category of non-court level requests would undermine those justifications.

When an ALJ needs a transcript of a hearing cassette to reach a well-reasoned, defensible decision, the ALJ or HO staff will:

1. Remove the hearing cassette(s) from the Cassette Storage Envelope in the CF.

2. Ensure that the cassette(s) is correctly and clearly labeled with:

a. Claimant's or Appellant's Name;

b. Wage Earner's or Beneficiary's Name;

c. Social Security Number;

d. Hearing Held Date; and

e. Cassette Number and Number of Cassettes (e.g., 1 of 1; and 1 of 3, 2 of 3, and 3 of 3).

3. Determine whether the cassette(s) in 2-track or 4-track and mark the Cassette Storage Envelope accordingly.

4. Place the cassette(s) back in the Cassette Storage Envelope.

5. If there is more than one Cassette Storage Envelope, staple them together.

6. Complete a pre-printed transcript request form (See > I-2-590 Samples, Sample 11), obtain the ALJ's signature on the form, and staple the form to the Cassette Storage Envelope(s).

7. Place the Cassette Storage Envelope(s) in a sturdy mailing envelope with sufficient packing material if necessary to avoid damage, and mail the envelope to:

Social Security Administration

Office of Hearings and Appeals

Contracts Staff, Suite 604

5107 Leesburg Pike

Falls Church, VA 22041-3200

Contracts Staff will normally request completion of a transcript within 10 working days. Allowing for non-work days and mailing time (5 days each way), the HO should receive the transcript within 22 to 24 days.

If there is a need for the Contracts Staff to assign either a 5-day delivery schedule (the HO would receive the transcript within 15 to 17 days) or a 1-day delivery schedule (the HO would receive the transcript within 11 days), such as the need to meet a court-imposed time limit, the ALJ should reflect the shorter turn-around time and the reason the shorter time is necessary in the "Special Instructions" section of the Transcript Request Form. This explanation is required of all offices utilizing transcription services; a request for either 5 or 1-day service without such explanation will not be honored.

If the completed transcript is not returned within the timeframe anticipated, the HO staff should contact the Contracts Staff by telephone at (703) 305-0621.

If the HO staff identifies a transcript that is inaccurate, they should telephone the Contracts Staff supervisor, discuss the problems they found with the transcript, and return the tape and transcript to the Contracts Staff with a note that references the telephone call to the Contracts Staff supervisor and indicates that a retype is requested. The HO should receive a corrected transcript within approximately 2 1/2 weeks.


HALLEX I-2-578

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-2-578 USE OF SUBPOENAS--GENERAL (REVISED 04/94)

A claimant has a right to request issuance of a subpoena, but the regulations state that he or she must make the request at least 5 days before the hearing date. (> 20 CFR 404.950(d)(2) and > 416.1450(d)(2))

The ALJ is authorized by law and regulation to issue subpoenas to require production of documentary evidence or testimony when reasonably necessary for the full presentation of the case. The issuance of a subpoena may be necessary when a person having knowledge of a material fact or possession of documentary evidence is reluctant or unwilling to testify or provide the evidence. The ALJ may issue a subpoena on his or her own motion or at the request of a claimant.

A. Issuing a Subpoena on Own Motion

The ALJ must issue a subpoena when an individual has evidence or can offer testimony that the ALJ determines is reasonably necessary for the full presentation of the case, and the ALJ has exhausted other means of obtaining this evidence or testimony. (See I-2-578 C., Evaluating Subpoena Requests.)

B. Issuing a Subpoena at the Request of a Claimant

The ALJ must issue a subpoena on a claimant's timely request if the claimant shows that an individual has evidence or can offer testimony that the claimant cannot obtain without the subpoena, the ALJ determines that the evidence or testimony is reasonably necessary for the full presentation of the case, and the ALJ has exhausted other means of obtaining this evidence or testimony. (See I-2-578 C., Evaluating Subpoena Requests.) The claimant seeking a subpoena must file a written request. The request must provide:

1. the names of the witnesses or documents to be provided;

2. the address or location of the witnesses or documents with sufficient detail to find them;

3. a statement of the important facts that the witness or document is expected to prove; and

4. the reason why these facts cannot be proven without issuing a subpoena.

NOTE: MEs, VEs and CE physicians who will not appear voluntarily (i.e., as requested by an ALJ) may be subpoenaed to appear under the same standard applicable to any witness.

C. Evaluating Subpoena Requests

ALJs must evaluate each subpoena request on its own merits to determine if issuance of a subpoena is reasonably necessary for the full presentation of the case. (Exception: In the Fifth Circuit, when a claimant requests, prior to the closing of the record, that a subpoena be issued for the purpose of cross-examining an examining physician, the ALJ must issue the subpoena. See AR > 91-1(5), Lidy v. Sullivan.)

If a claimant requests an ALJ to issue a subpoena to compel a person to provide certain documentary evidence or to testify at a hearing or supplemental hearing, the ALJ or HO staff person the ALJ designates should review the ALJ (HO) file and the exhibit file to determine if they contain the documentary evidence or information the claimant wishes to provide.

1. If the files contain the documentary evidence or information the claimant wishes to provide, the ALJ may deny the request to issue a subpoena. (See I-2-578 D., Denying a Subpoena Request.)

2. If the files do not contain the documentary evidence or information the claimant wishes to provide, and development for it has not been completed (i.e., development has not been undertaken, or development has been undertaken but the evidence or information has not yet been received, or there are other means of obtaining the evidence or information which have not yet been tried), the ALJ should delay ruling on the subpoena request and undertake any necessary development.

3. If the files do not contain the documentary evidence or information the claimant wishes to provide, and development for it has been completed (i.e., it is clear that requests previously made for the evidence or information will not provide it, and all other means of obtaining it have been exhausted), the ALJ should determine whether issuance of a subpoena to secure the requested document(s) or witness(es) is reasonably necessary for the full presentation of the case because the document(s) or witness(es) can be expected to prove important facts that cannot be proved without a subpoena. In assessing the importance of requested testimony by the author of a written report, the ALJ should consider whether use of the subpoena and consequent cross-examination are required for a full and true disclosure of the facts.

- If the ALJ determines that the evidence or information is reasonably necessary for the full presentation of the case, and the requirements of I-2-578 B. are met, the ALJ should issue a subpoena in response to the claimant's request.

- If the ALJ determines that the evidence or information is not reasonably necessary for the full presentation of the case, the ALJ may deny the subpoena request. (See I-2-578 D., below.)


NOTE: The ALJ need not rule on a prehearing or posthearing subpoena request until development has been completed and the case is ready to be scheduled for hearing or supplemental hearing.

D. Denying a Subpoena Request

If an ALJ denies a claimant's request for a subpoena, the ALJ must provide the claimant with written notification of the denial of the request, and enter both the request and the denial notification into the record as exhibits. The denial notification must include rationale that explains why the ALJ declined to issue a subpoena to compel production of documentary evidence or appearance and testimony at a hearing or supplemental hearing.


HALLEX I-2-580

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-2-580 PREPARATION AND SERVICE OF A SUBPOENA (REVISED 04/94)

A. Preparation of Form HA-511 (Subpoena)

When an ALJ decides to issue a subpoena, prepare the subpoena by completing Form HA-511 in duplicate.

1. If the subpoena requires the individual to appear in person at a hearing, so indicate on the subpoena and:

- describe in accurate and specific terms the facts or documentary evidence that the individual must provide;

- state the time and place of the hearing; and

- indicate that the individual is to bring the subpoena to the hearing.

2. If the subpoena requires the individual to provide documentary evidence rather than appear as a witness, type "For Production of Documentary Evidence" at the top of the subpoena to the right of the word SUBPOENA, and:

- describe in accurate and specific terms the facts or documentary evidence that the individual must provide; and

- indicate that the individual is to return the subpoena with the requested documentary evidence or facts.

The ALJ must sign both copies of a subpoena.

B. Serving the Subpoena

To serve the subpoena, the ALJ will send the original to the individual being subpoenaed by certified mail. The ALJ will complete the "Return of Service" section on the reverse side of the signed copy and retain it in the CF.

1. If the individual's address is unknown, or the United States Postal Service returns the subpoena as undeliverable, request the servicing FO to assist in serving the subpoena.

2. When the return receipt is received, staple it to the copy of the subpoena being retained in the CF.

3. When the individual returns the original subpoena, mark it as an exhibit and add it to the exhibit list, along with any documentary evidence or facts provided. Place the exhibits in the CF.

C. Payment of Subpoenaed Individuals

1. Subpoenaed witnesses are entitled to the same fees and travel allowances as witnesses in the U.S. District Court.

2. If fees and travel allowances are requested, prepare a travel voucher and attach the original subpoena to the voucher.

3. Procedures for reimbursement and fee schedules are in the Social Security Administration Administrative Instruction Manual System (AIMS) 07.26.00.


HALLEX I-2-582

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-2-582 NONCOMPLIANCE WITH A SUBPOENA (REVISED 04/94)

If an individual refuses or fails to comply with a subpoena, the ALJ must consider any changes in the situation since the subpoena was first issued and again determine whether the evidence or facts requested are reasonably necessary for the full presentation of the case. If so, the ALJ will prepare a memorandum to the OGC Regional Chief Counsel, requesting enforcement of the subpoena.


HALLEX I-2-590

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-2-590 SAMPLES

SAMPLE 1

MEDICAL DEVELOPMENT LETTER TO TREATING SOURCE

` Doctor's Name

Address

City, State ZIP

Dear Dr. ____________________:

Mr./Mrs./Ms. ________________ has a claim for disability benefits under the Social Security Act pending before the Office of Hearings and Appeals.

To reach a decision on this claim, I need a report of the claimant's medical condition. (Add appropriate language if the request is for an updated report, a historical report, treatment notes, etc.) Also please complete the enclosed medical assessment form. I have enclosed a copy of the claimant's consent for release of this information.

This report is essential to the adjudication of your patient's claim. If you wish to charge a fee for this report, the maximum amount that I may authorize is (include amount). (Include a request for any information required to process such payment or replace the prior sentence with a statement that payment may not be made if the State agency does not pay for the submission of such reports.)

Please return this letter with the evidence to my office as soon as possible. For your convenience, I have enclosed a postage paid, self-addressed envelope.

Thank you for your cooperation.

Sincerely yours,

Administrative Law Judge

SAMPLE 2 (Revised 04/94)

LETTER TO REPRESENTATIVE ENCLOSING COPY OF NEW EVIDENCE

NOTICE REGARDING ADDITIONAL EVIDENCE

` Representative's Name

Address

City, State ZIP

Dear _____________________:

This is in reference to _____________________________'s claim for benefits under the Social Security Act. I have obtained additional evidence that I propose to enter into the record of the case. I am enclosing that evidence for your review.

Actions You Have A Right To Take

You may submit any or all of the following: written comments concerning the enclosed evidence, a written statement as to the facts and law you believe apply to the case in light of that evidence, and any additional records you wish me to consider [including a report from the treating physician]. You may also submit written questions to be sent to the author(s) of the enclosed report(s).

You may also request a supplemental hearing at which the claimant would have the opportunity to appear, testify, produce witnesses, and submit additional evidence and written or oral statements concerning the facts and law. If you request a supplemental hearing, I will grant the request unless I receive additional records that support a fully favorable decision. In addition, you may request an opportunity to question witnesses, including the author(s) of the enclosed report(s). I will grant a request to question a witness if I determine that questioning the witness is needed to inquire fully into the issues. If an individual declines a request by me to appear voluntarily for questioning, I will consider whether to issue a subpoena to require his or her appearance.

You may request that I issue a subpoena to require the attendance of witnesses or the submission of records. You must submit a subpoena request, in writing, no later than 5 days before the date of any supplemental hearing. Any request that I issue a subpoena must provide the names of the witnesses or documents to be provided; the address or location of the witnesses or documents with sufficient detail to find them; a statement of the important facts that the witness or document is expected to prove; and the reason why these facts cannot be proven without issuing a subpoena. I will issue a subpoena if reasonably necessary for the full presentation of the case.

Actions I Will Take If I Do Not Hear From You

If I do not receive a response from you within 10 days of the date you receive this notice, I will assume that you do not wish to submit any written statements or records and that you do not wish to request a supplemental hearing or to orally question the author(s) of the enclosed report(s). I will then enter the enclosed evidence in the record and issue my decision.

Sincerely yours,

Administrative Law Judge

NOTE: If the evidence could be detrimental to the claimant's health, insert the following or similar language:

In view of certain language in the evidence which may be detrimental to your client's health, I suggest that you discuss the material with (him/her) only in general terms.


Do not send cc to the claimant.

SAMPLE 3 (Revised 04/94)

LETTER TO UNREPRESENTED CLAIMANT ENCLOSING COPY OF NEW EVIDENCE

NOTICE REGARDING ADDITIONAL EVIDENCE

` Claimant's Name

Address

City, State ZIP

Dear _______________:

I have secured additional evidence which I propose to enter into the record in your case. I am enclosing that evidence for your review.

Actions You Have A Right To Take

You may submit any or all of the following: written comments concerning the enclosed evidence, a written statement as to the facts and law you believe apply to the case in light of that evidence, and any additional records you wish me to consider [including a report from your treating physician]. You may also submit written questions to be sent to the author(s) of the enclosed report(s).

You may also request a supplemental hearing at which you would have the opportunity to appear, testify, produce witnesses, and submit additional evidence and written or oral statements concerning the facts and law. If you request a supplemental hearing, I will grant the request unless I receive additional records that support a fully favorable decision. In addition, you may request an opportunity to question witnesses, including the author(s) of the enclosed report(s). I will grant a request to question a witness if I determine that questioning the witness is needed to inquire fully into the issues. If an individual declines a request by me to appear voluntarily for questioning, I will consider whether to issue a subpoena to require his or her appearance.

You may request that I issue a subpoena to require the attendance of witnesses or the submission of records. You must submit a subpoena request, in writing, no later than 5 days before the date of any supplemental hearing. Any request that I issue a subpoena must provide the names of the witnesses or documents to be provided; the address or location of the witnesses or documents with sufficient detail to find them; a statement of the important facts that the witness or document is expected to prove; and the reason why these facts cannot be proven without issuing a subpoena. I will issue a subpoena if reasonably necessary for the full presentation of the case.

Actions I Will Take If I Do Not Hear From You

If I do not receive a response from you within 10 days of the date you receive this notice, I will assume that you do not wish to submit any written statements or records and that you do not wish to request a supplemental hearing or to question the author(s) of the enclosed report(s). I will then enter the enclosed evidence in the record and issue my decision.

Sincerely yours,

Administrative Law Judge

NOTE: See I-2-590, Samples 8 - 10, for sample letters to transmit interrogatories or revised interrogatories or to proffer the responses to the claimant or representative.

SAMPLE 4

INTERROGATORIES TO MEDICAL EXPERT

INDIVIDUAL: ***

SSN: ***

CLAIM FOR: ***

NOTE: When preparing interrogatories, leave sufficient space between questions for the answers.

1. Please state your full name and address.

2. Is the attached curriculum vitae a correct summary of your professional qualifications?

3. Are you board-certified in any medical field and, if so, which field?

4. Are you aware that your responses to these interrogatories are sought from you in the role of an impartial medical expert?

5. Has there been any prior communication between the Administrative Law Judge and yourself regarding the merits of this case?

6. Have you ever personally examined the claimant?

7. Have you read the medical data pertaining to the claimant which we furnished you?

8. Is there sufficient objective medical evidence of record to allow you to form an opinion of the claimant's medical status? If not, what additional evidence is required?

9. Please list the claimant's physical and/or mental impairments resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. In addition, please state your opinion as to the severity of each impairment, and the exhibits and objective findings which support your opinion.

10. Are there any conflicts in the medical evidence of record which affected your opinion and, if so, please state how you resolved them?

11. Have we furnished you with copies of the pertinent section of the Listing of Impairments, Appendix 1, Subpart P, Social Security Regulations No. 4?

12. In your opinion, do any of the claimant's impairments, when taken individually, meet the requirements of any of the listed impairments? Please fully explain this answer and cite the appropriate sections in the Listing. (Please specifically refer to Listing section ____________.)


13. In your opinion, do any of the claimant's impairments present medical findings which are at least equal in severity and duration to a listed impairment in Appendix 1?

14. In your opinion, if the impairment(s) is a listed impairment or the medical equivalent thereof, on what date did the impairment(s) attain that level of severity?

15. Is there any evidence that the claimant has not properly complied with prescribed treatment?

16. Has any treatment been prescribed which may improve the claimant's condition?

17. List the specific functional (exertional) limitations, such as sitting, walking, standing, lifting, carrying, pushing, pulling, reaching, and handling imposed by these impairments.

18. List the specific functional (nonexertional) limitations, such as environmental restrictions (sensitivity to fumes, etc.), or visual limitations, such as inability to read small print or work with small objects, imposed by these impairments.

19. Please describe the claimant's visual acuity in terms of its affect on the claimant's ability work safely.

20. Do you have any additional comments or information which may assist us in reaching a decision? If so, please state.

SAMPLE 5

INTERROGATORIES TO VOCATIONAL EXPERT

INDIVIDUAL: ***

SSN: ***

CLAIM FOR: ***

NOTE: When preparing interrogatories, leave sufficient space between questions for the answers.

1. Please state your full name and address.

2. Is the attached curriculum vitae a correct summary of your professional qualifications?

3. Are you aware that your responses to these interrogatories are sought from you in the role of an impartial vocational expert?

4. Has there been any prior communication between the Administrative Law Judge and yourself regarding the merits of this case?

5. Has there been any prior professional contact between you and the claimant?

6. Have you read the evidence pertaining to the claimant which we furnished you?

7. Is there sufficient objective evidence of record to allow you to form an opinion of the claimant's vocational status? If not, what additional evidence is required?

8. Please state the following:

- Claimant's age, in terms of the applicable age category described in sections 404.1563 and 416.963 of Regulations Nos. 4 and 16.

- Claimant's education, in terms of the applicable education category described in sections 404.1564 and 416.964 of the Regulations Nos. 4 and 16.

- Claimant's past relevant work (PRW); i.e., the claimant's work experience during the last 15 years, in terms of the physical exertion and skill requirements described in sections 404.1567, 404.1568, 416.967 and 416.968 of Regulations Nos. 4 and 16, and the Dictionary of Occupational Titles.

- The extent that any job during the last 15 years required lifting, carrying, pushing, pulling, sitting, standing, walking, climbing, balancing, stooping, kneeling, crouching, crawling, reaching, handling, fingering, feeling, talking, hearing and seeing, as well as any environmental or similar aspects of the job (indoors, outdoors, extremes of heat or cold, wetness, noise, vibration and exposure to fumes, odors or toxic conditions).

9. If the claimant's PRW was either at a skilled or semi-skilled level, describe the skills acquired by the claimant during the performance of the job(s), and furnish a complete explanation for your opinion(s).

10. Hypothetical Questions:

- Assume that I find the claimant's testimony credible, that because of his impairment he can only sit for up to 3 hours, stand and/or walk for no more than 3 hours before experiencing severe pain, and lift no more than 10 pounds, and that he must lie down for at least 2 hours in any 8-hour period to relieve the pain. If I accept this description of his limitations, could the claimant, considering his age, education and his work experience, engage in his past relevant work? Or, if not, could he transfer acquired skills to the performance of other skilled or semi-skilled work?

- Assume that I find that the claimant can sit for up to 3 hours at a time, stand and/or walk for no more than 3 hours, and lift up to 10 pounds. Can he engage in his past work? If not, can he transfer any skills to perform other skilled or semi-skilled work?

- Assume that I find that the claimant can stand and walk for approximately 6 hours, and lift no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Can he engage in his past work or, if not, can he transfer his skills to perform other skilled or semi-skilled work?

- If the claimant can transfer his skills to perform other skilled or semi-skilled work, please provide some examples of these jobs and the frequency with which they are found in the national economy.


SAMPLE 6

LETTER TO EXPERT WITNESS, WRITTEN INTERROGATORIES

` Expert Witness' Name

Address

City, State ZIP

Dear (Dr.) _____________________:

This letter is a request for your professional opinion in connection with _________________'s disability claim, which is now before me for a hearing and decision.

Enclosed is a proposed exhibit, __________, which summarizes your professional qualifications. If necessary, please correct or complete the form to accurately reflect your professional qualifications, and return the original to me. The copy is for your files.

Also enclosed are copies of pertinent evidence for your consideration. Based on your professional knowledge and the information provided, please furnish written answers to the enclosed interrogatories. If additional space is necessary, you may use the reverse side of the interrogatories or attach additional pages. A copy of this letter and the completed interrogatories will be made a part of the record of the proceedings in this case.

Submit your charges for this service in accordance with your Blanket Purchase Agreement with the Department of Health and Human Services. Sign the enclosed Contractor's Invoice and return it to me, along with the completed interrogatories, the evidence, and the other documents, as soon as possible, but no later than (date). For your convenience, I am enclosing a postage paid, self-addressed envelope.

Sincerely yours,

Administrative Law Judge

SAMPLE 7

TRANSMITTAL LETTER TO EXPERT WITNESS EVIDENCE RECEIVED AFTER INTERROGATORIES

` Doctor's Name

Address

City, State ZIP

Dear Dr. _____________________:

This is in reference to the expert opinion which you furnished in the above case on (date).

I am enclosing a copy of (describe the evidence) which was received after your (testimony) (answers to interrogatories). This evidence indicates (describe any changes in the fact pattern indicated by the new evidence, and any changes it warrants in hypothetical questions or interrogatories previously posed to the expert witness). Please notify me in writing by (date) whether or not this additional evidence changes your opinion.

For your convenience, I am also enclosing a postage paid, self-addressed envelope.

Sincerely yours,

Administrative Law Judge

SAMPLE 8 (Revised 04/94)

LETTER TO TRANSMIT INTERROGATORIES TO CLAIMANT OR REPRESENTATIVE

` Claimant or Representative's Name

Address

City, State ZIP

Dear _____________________:

This refers to [Mr./Mrs./Ms.]'s or [your] claim for disability benefits. I have determined that it is necessary to obtain [further] evidence from a [medical/vocational] expert. I propose to do this by requesting a [medical/vocational] expert to review the file and to answer written [interrogatories/questions] about your claim.

I am enclosing the [interrogatories/questions] that I propose to submit to the [medical/vocational] expert. You may:

- object to my obtaining this information by means of [interrogatories/questions].

- object to any of the [interrogatories/questions];

- propose other [interrogatories/questions]; or

If I revise the [interrogatories/questions] based on your comments, I will give you another opportunity to comment on the revised [interrogatories/questions]. I will also send you a copy of the [medical/vocational] expert's responses to the [interrogatories/questions]. You may then:

- comment on the responses to the [interrogatories/questions];

- submit more evidence;

- ask me to submit additional [interrogatories/questions] to the [medical/vocational] expert; and

- request a supplemental hearing to question the [medical/vocational] expert.

You may conduct such oral questioning as may be needed to inquire fully into the matters at issue.

If I do not receive a response from you within 20 days from the date of this letter, I will assume you have no objections and no additional [interrogatories/questions]. I will then send the enclosed [interrogatories/questions] to a [medical/vocational] expert.

Please contact me if you have any questions on this procedure.

Sincerely yours,

Administrative Law Judge

SAMPLE 9

LETTER TO TRANSMIT REVISED INTERROGATORIES TO CLAIMANT OR REPRESENTATIVE

` Claimant or Representative's Name

Address

City, State ZIP

Dear _____________________:

In response to your comments of [date], I have revised the [interrogatories/questions] that I originally proposed to submit to a [medical/vocational] expert. I am enclosing the revised [interrogatories/questions].


If you have any further comments, please send them to me within 10 days from the date of this letter. After that time, I will request a [medical/vocational] expert to respond to the [interrogatories/questions].

Sincerely yours,

Administrative Law Judge

NOTE: In letter to an attorney representative, use "interrogatories." In letter to an unrepresented claimant, use "questions."

SAMPLE 10

LETTER TO PROFFER THE RESPONSES TO THE INTERROGATORIES TO THE CLAIMANT OR REPRESENTATIVE

` Claimant or Representative's Name

Address

City, State ZIP

Dear _____________________:

This refers to [Mr./Mrs./Ms. ***'s] or [your] claim for disability benefits. I have received responses to the [interrogatories/questions] I submitted to ______________________, a [medical/vocational] expert, and I propose to include them in the record of this case. I have enclosed a copy of these responses and a statement of ___________________'s professional qualifications.

Please review this material carefully. You may:

- submit a written statement of the facts and law in this case, including any comments you wish to make on the expert witness' responses; or

- request that the expert witness answer further [interrogatories/questions].

I will notify you of my decision on any request to question the expert witness further by [interrogatories/questions].

If you wish to question the expert witness at a [supplemental] hearing, you may so request. If you so request, I will schedule a [supplemental] hearing and will notify you of the time and location of the hearing.

If I do not receive a response from you within 20 days from the date of this letter, I will conclude that you have no additional [interrogatories/questions] and that you do not wish to submit anything further. Also, I will accept into the record as additional evidence the questions to the [medical/vocational] expert, the expert's responses, and the statement of the expert's professional qualifications, and issue a decision.

Sincerely yours,

Administrative Law Judge

NOTE: In letter to an attorney representative, use "interrogatories." In letter to an unrepresented claimant, use "questions."

SAMPLE II

TRANSCRIPT REQUEST FORM

TO: Social Security Administration

Office of Hearings and Appeals

Contracts Staff, Suite 604

5107 Leesburg Pike

Falls Church, VA 22041-3200

A transcript of the enclosed (insert number) hearing cassette(s) is needed to issue a well-reasoned, defensible decision in the following case:

Claimant or Appellant's Name: ______

Wage Earner or Beneficiary's Name: ______

Social Security Number: ______

Hearing Held Date and Number of Cassettes: (month/day/year) (number) ______

(month/day/year) (number) ______

Claim Type: SSID _____ SSDC _____ DIWC _____ DIWW _____ RSI _____

Hearing Office (HO) Code: ______

HO Contact Person and Phone Number: ______

Special Instructions: ______

Administrative Law Judge: (signature) (typed name)

Please return the transcription(s), cassette(s), and cassette envelope(s) to the Administrative Law Judge at the following address.

Social Security Administration

Office of Hearings and Appeals

______



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