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HALLEX I-2-601

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-601 HEARINGS--GENERAL

Citations: Social Security Act 205(b), 1155, 1631(c), 1866; > 20 CFR 404.929, > 404.944, 410.640, 410.642, 416.1429, 416.1444

The Social Security Act requires the Secretary of Health and Human Services to provide a claimant with reasonable notice and opportunity for a hearing. The Secretary has delegated to Administrative Law Judges (ALJs) the authority to hold hearings and issue decisions.

The ALJ must inquire fully into all matters at issue and conduct the administrative hearing in a fair and impartial manner. The hearing is open to the claimant and to other persons the ALJ considers necessary and proper. The ALJ must ensure that the claimant understands how the hearing will be conducted, and the general and specific issues on which findings will be made. The ALJ or the hearing office (HO) staff under the ALJ's direction will take some or all of the actions described in the following sections.

The ALJ hearing generally includes:

- an introduction (See > I-2-650, Administrative Law Judge Introduction at the Hearing.);

- an opening statement (See > I-2-652, Opening Statement.);

- oaths or affirmations (See > I-2-654, Oaths and Affirmations.);

- adducing the evidence (See > I-2-656, Adducing the Evidence.);

- receiving oral testimony (See > I-2-660, Testimony of Claimants and Witnesses.);

- presentation of written or oral argument (See > I-2-676, Arguments by the Claimant.); and

- a closing statement (See > I-2-678, Closing the Hearing.).

"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. (See > I-2-145, Parties to the Hearing.)

HALLEX I-2-610

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: Conduct of Hearings

Chapter: I-2-600

September 13, 1995

Current through March 1997

I-2-610 HEARING PROCEDURES -- FOREIGN LANGUAGE INTERPRETERS (REVISED 10/95)

If a claimant has difficulty understanding or communicating in English, the ALJ will ensure that an interpreter, fluent in both English and a language in which the claimant is proficient, is present throughout the hearing. (See > I-2-170, Foreign Language Interpreters.)

A. Interpreter's Certification

The ALJ will verify the interpreter's identity and require the interpreter to certify "under penalty of perjury" his or her relationship to the person testifying (including whether he or she is acting as the person's legal representative) and that he or she will accurately translate the questions asked and the answers given to the best of his or her ability. ALJs may obtain the required certification on the record at the hearing or by requiring the interpreter to sign a form (e.g., Form SSA-795) or other written statement with the following information:

- "I am acting as an interpreter for (claimant's name) to perform the specific function of providing accurate translation between (claimant's name) and the ALJ. I solemnly (swear or affirm) that I will accurately translate the questions asked and the answers given in this case to the best of my ability, under penalty of perjury."

- Interpreters's name, address and telephone number.

- The interpreter's relationship to the claimant (e.g., son, mother, friend, minister, paid interpreter or legal representative).

- Any relevant comments that the interpreter wishes to include.

- Any relevant comments that the ALJ wishes to document over the interpreter's signature.

- The interpreter's signature.

If an interpreter refuses to provide the required certification, or the ALJ doubts an interpreter's qualifications or suspects fraudulent activity, the ALJ should adjourn or postpone the hearing until the services of an acceptable interpreter are obtained.

B. Verbatim Translation

The ALJ will direct the interpreter to translate the questions and answers verbatim without change. If an interpreter changes the form of the question to the third person (that is, uses "he" or "she"), the ALJ will instruct the interpreter to correct the translation, and caution the interpreter, on the record, against the practice.

The ALJ will also instruct the interpreter not to add personal comments to either the questions or the answers.

NOTE: The ALJ should not use idiomatic or slang expressions when questioning hearing participants.

C. Difficulties with Translation

If the ALJ determines that the claimant is having difficulty understanding the translation, or the claimant objects to the translation, the ALJ must determine whether the claimant is receiving a full and fair hearing.

1. If the ALJ concludes that the claimant is receiving a full and fair hearing, the ALJ must note the claimant's objections on the record, proceed with the hearing and address the objections in the decision.

2. If the ALJ concludes that the claimant is not receiving a full and fair hearing, the ALJ must adjourn or postpone the hearing until the services of an acceptable interpreter are obtained.

(See > I-1-100 ff., Representation of Claimants, when an interpreter also acts as a claimant's representative.)

HALLEX I-2-612

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: Conduct of Hearings

Chapter: I-2-600

September 13, 1995

Current through March 1997

I-2-612 HEARING PROCEDURES -- HEARING-IMPAIRED CLAIMANT (REVISED 10/95)

A. Sign Language Interpreter

When using a sign language interpreter at the hearing, the ALJ will:

- Position the claimant so that he or she is facing the interpreter and all the speakers present at the hearing, including the representative.

- Direct all questions and comments to the claimant, not the interpreter.

- Explain the terminology and procedures at a reasonably slow pace.

B. Lipreading

If the claimant prefers to lipread, the ALJ must take care during the hearing to speak slowly.

C. Written Notes

If the ALJ believes the claimant is having difficulty lipreading or understanding a particular question in sign language, the ALJ must seek a more effective way to communicate with the claimant, such as a written note. If the ALJ uses written notes, the ALJ must read the notes into the record. If notes must be used frequently, the ALJ should adjourn the hearing and continue it at another time with a qualified sign interpreter present. (See > I-2-172, Interpreters -- Hearing-impaired Claimant.)

D. Objections by the Claimant

If the claimant objects to the accuracy and quality of the communication being provided by the sign language interpreter, the ALJ must determine whether the claimant is receiving a full and fair hearing.

1. If the ALJ concludes that the claimant is receiving a full and fair hearing, the ALJ must note the claimant's objections on the record, proceed with the hearing and address the objections in the decision.

2. If the ALJ concludes that the claimant is not receiving a full and fair hearing, the ALJ must adjourn the hearing and continue it at another time with a qualified sign interpreter present.


HALLEX I-2-620

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-620 AFFIDAVITS AND DEPOSITIONS

A. Definitions

An affidavit is a written declaration made under oath before an authorized official. A deposition is an oral statement made under oath, taken down in writing, or recorded and later transcribed.

B. When to Use an Affidavit or Deposition

Affidavits or depositions may be used when an essential person cannot be present at the time and place of the hearing; e.g., an essential witness resides in a location distant from the hearing site, has other binding obligations, or is confined to an institution. Use an affidavit instead of a deposition whenever possible.

NOTE 1: Only ALJs may take depositions because only they are authorized to administer oaths. (See > I-2-654, Oaths and Affirmations.)

NOTE 2: Claimants and representatives have the same rights during deposition proceedings that they have during hearing proceedings; e.g., the claimant and representative may appear at deposition proceedings to question the deponent, or submit written questions for the ALJ to ask the deponent.


HALLEX I-2-622

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-622 DEPOSITION PROCEEDINGS

A. Scheduling a Deposition

To facilitate obtaining a deposition, the hearing office (HO) staff should contact the deponent by telephone, if possible, to determine the most desirable time and place for the deposition proceedings.

B. Notice of the Deposition

The ALJ must send the deponent written notice of the time and place of the deposition proceedings, at least 20 days in advance, with copies to the claimant and the representative. Include in this notice a statement of the purpose of the deposition, and any additional information the ALJ decides the deponent should have to prepare for the proceedings. Also place copies of the notice in the claim file and hearing office file. (See > I-2-690, Sample 1, Notice to Deponent).

C. Claimant Objects to the Taking of the Deposition

If the claimant or representative objects to the taking of the deposition, the ALJ must rule on the objection in writing.

D. Deponent Does Not Appear for Deposition

If a deponent fails to appear for a deposition, the HO staff will telephone the deponent for an explanation. If another date can be agreed to and the ALJ is reasonably certain that the deponent will appear, the HO staff will send a second notice following the procedures in A. and B., above.

If the ALJ determines that the deposition is material to the issues to be decided, the ALJ may issue a subpoena to compel the deponent to appear. (See > I-2-578, Use of Subpoenas--General.)

E. Conducting the Deposition

The ALJ will take all testimony under oath or affirmation, and record the deposition proceedings in the same manner as hearing proceedings. The ALJ must, on the record, identify the case and all persons present, and state the purpose of the deposition. (See > I-2-654, Oaths and Affirmations.)

F. Preparing the Deposition Transcript

The HO staff will prepare a verbatim transcript of the deposition proceedings in duplicate, numbering all pages, except the first, in the center at the top. Include in the transcript:

1. an identifying face sheet (See > I-2-690, Sample 4, Transcript.);

2. the text of the deposition; and

3. the transcriber's certification.

G. Proffering the Deposition Transcript

The ALJ will mark the deposition transcript and any associated documents as exhibits, and make them available for examination to any claimant or representative not present during the deposition proceedings. (See > I-2-690, Sample 2, Exhibit List Including Posthearing Deposition, and > I-2-730, Proffer Procedures.)

H. Claimant Objects to Admitting the Deposition into Evidence

If the claimant or the representative objects to the admission into evidence of the deposition transcript and associated documents, the ALJ must rule on the objections in writing or on the record at the hearing.


HALLEX I-2-624

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-624 REQUESTING AN ADMINISTRATIVE LAW JUDGE IN ANOTHER SERVICE AREA TO TAKE A DEPOSITION

A. Requesting Actions by the Administrative Law Judge (ALJ) or the Hearing Office (HO) Staff

The ALJ to whom a case is assigned may request an ALJ in another HO to take a needed deposition from a person residing in that HO's service area.

The requesting ALJ or HO staff, as appropriate, will:

1. Prepare a request to the receiving HO Chief ALJ.

a. Include in the request information on the purpose, scope, and substance of the needed deposition.

b. Send the original to the receiving HO Chief ALJ.

c. Send copies to the deponent, claimant and the representative.

d. Place copies in the claim file (CF) and HO file.

2. Prepare an order to take the deposition. (See > I-2-690, Sample 3, Order to Take Deposition.)

a. Place the original in the CF.

b. Send copies to the receiving HO Chief ALJ, deponent, claimant and the representative.

c. Place a copy in the HO file.

B. Actions by the Receiving ALJ or HO Staff

1. Upon receipt of the ALJ's request and order, claim file and other material, the ALJ assigned to take the deposition will follow the usual deposition proceedings. (See > I-2-622 Deposition Proceedings.)

2. Upon completion of the deposition, the HO staff will prepare a transcript (See > I-2-690, Sample 4, Transcript.), and send it with the CF to the requesting ALJ, using Form HA-5051 (Transmittal of Hearing Decision or Dismissal), with appropriate identifying information in the "remarks" section.


HALLEX I-2-630

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-630 ADDITIONAL EVIDENCE RECEIVED AT OR AFTER THE HEARING

If additional evidence is received at or after the hearing, mark the item(s) with the next exhibit number(s). Add the exhibit(s) to the exhibit list under the heading "RECEIVED DURING HEARING" or "RECEIVED SUBSEQUENT TO HEARING," as appropriate. (See > I-2-115, Exhibits; > I-2-120, Preparation of Exhibit List; and > I-2-690, Sample 5, EXHIBIT LIST (FINAL).)

If the ALJ issues a fully favorable decision, a draft exhibit list may be used in the claim file (CF).

If the ALJ issues a partially favorable or unfavorable decision, the HO staff must prepare an exhibit list in final on Form HA-540 (Exhibit List) and place it in the CF with the ALJ's decision. For this reason, most HOs routinely prepare their exhibit lists in final to avoid duplication of effort.

NOTE: Do not write on, highlight or otherwise mark exhibits except to stamp and number them.


HALLEX I-2-634

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-634 EXAMINATION OF PROPOSED EXHIBITS ON DATE OF HEARING

If the claimant or the representative has not examined the proposed exhibits, the hearing office (HO) staff must give them the opportunity to examine the exhibits before the hearing. If the claimant or the representative has objections or comments on any proposed exhibit, or has additional evidence to submit, the HO staff will inform the Administrative Law Judge (ALJ) before the hearing. The ALJ will receive the additional evidence or objections on the record at the beginning of the hearing.


HALLEX I-2-640

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: Conduct of Hearings

Chapter: I-2-600

September 13, 1995

Current through March 1997

I-2-640 RECORD OF THE HEARING

Citations: Social Security Act 205(g); > 20 CFR 404.951, > 410.644, and 416.1451; > 42 CFR 405.701 and > 498.64

The Administrative Law Judge (ALJ) must make a complete record of the hearing proceedings. Therefore, the ALJ or designee will make a verbatim recording of the entire hearing.

If a question arises during the course of a hearing which is not relevant to the issues in the claimant's case, the ALJ may decide to discuss and resolve it off-the-record. However, the ALJ must summarize on the record the content and conclusion of any off-the-record discussion.

A. Hearing Office (HO) Staff Actions Before the Hearing

Before each hearing, the HO staff person or the contract hearing reporter assisting the ALJ must:

1. label the hearing cassette, and prepare the cassette envelope and hearing log (See > I-2-642, Preparing Hearing Cassettes, Cassette Storage Envelopes and Hearing Logs.);

2. record the proper identification information on the hearing cassette (See > I-2-644, Recording Identifying Information on the Hearing Cassette.);

3. clean the magnetic heads inside the recording equipment;

4. test the equipment, including the recording quality of each microphone, by dictating a few words into each microphone and replaying the tape; and

5. set up the recording equipment, placing the microphones within one foot of the speaker, if possible.

B. HO Staff Actions During the Hearing

During the hearing, the individual assisting the ALJ must:

1. Monitor the recording equipment to ensure that it is functioning properly by:

a. playing back a few seconds of the tape during a normal break in the testimony;

b. stopping the hearing briefly when changing cassette tapes to ensure that all of the proceedings are properly recorded; and

c. informing the ALJ immediately of any equipment malfunction.

NOTE: If the recording equipment malfunctions during the hearing, the ALJ must suspend the oral testimony until the equipment is repaired or replaced.

2. Take notes of the testimony for the ALJ's future use.

C. HO Staff Actions After the Hearing

After the hearing, the individual assisting the ALJ must place the cassette recording in a cassette storage envelope and prong-file it on the left side of the claim folder.

In concurrent titles II and XVI claims, prong-file the envelope containing the cassette on the left side of the title II claim folder. (See > I-2-850, Procedures for Handling Hearing Cassettes.)


HALLEX I-2-642

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: Conduct of Hearings

Chapter: I-2-600

September 13, 1995

Current through March 1997

I-2-642 PREPARING HEARING CASSETTES, CASSETTE STORAGE ENVELOPES AND HEARING LOGS

A. Before the Hearing

Type the claimant's name and Social Security number on a label and affix it to the hearing cassette(s). Complete the information on the top portion of the cassette storage envelope. (See > I-2-690, Sample 6, Front of Cassette Storage Envelope.)

B. During the Hearing

Note on the hearing log sections of the cassette storage envelope (See > I-2-690, Sample 6, Front of Cassette Storage Envelope, and Sample 7, Back of Cassette Storage Envelope.) at what point in the recording the following occur:

1. identification of case;

2. opening statement;

3. receipt of exhibits (note the exhibit numbers);

4. swearing or affirming, and examination of witnesses, along with the names of such witnesses and the identity of the person conducting the examination;

5. recesses (if any); and

6. closing of record.


HALLEX I-2-644

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: Conduct of Hearings

Chapter: I-2-600

September 13, 1995

Current through March 1997

I-2-644 RECORDING IDENTIFYING INFORMATION ON THE HEARING CASSETTE

Before the Administrative Law Judge (ALJ) calls the hearing to order, the individual assisting the ALJ must identify the case by recording the following information on the hearing cassette:

- claimant's name, spelled out;

- claimant's SSN;

- representative's name, spelled out;

- witness' names, spelled out, and identities (i.e., wife, medical expert, vocational expert, etc.);

- date of hearing;

- location of hearing;

- claim type;

- name of the ALJ; and

- name of the HO staff member recording the hearing. Record the same information on any additional cassette.


HALLEX I-2-646

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: Conduct of Hearings

Chapter: I-2-600

September 13, 1995

Current through March 1997

I-2-646 OMISSIONS OR INAUDIBLES ON THE HEARING CASSETTE

A. Discovered During the Hearing

If a periodic check of the recording equipment during the hearing reveals omissions or inaudible testimony or questioning, the Administrative Law Judge (ALJ) must:

1. summarize the missing testimony or questioning;

2. have the claimant or representative correct and verify that the summary is accurate; and

3. read the summary into the record.

B. Discovered After the Hearing

If omissions or inaudible testimony or questioning are discovered after the hearing but before the decision is issued, the ALJ must:

1. summarize the missing testimony or questioning;

2. send the summary to the representative or the claimant, allowing a reasonable time for comment; and

3. review the representative's or claimant's response, modify the summary as necessary, and admit the summary into evidence as an exhibit.


HALLEX I-2-650

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: Conduct of Hearings

Chapter: I-2-600

September 13, 1995

Current through March 1997

I-2-650 ADMINISTRATIVE LAW JUDGE INTRODUCTION AT THE HEARING

Before making an opening statement, the Administrative Law Judge (ALJ) should:

- introduce himself or herself and any HO staff person that will be assisting during the hearing;

- explain the reason the HO staff person is present (e.g., to operate the recording equipment); and

- identify any other person present and explain the person's reason for being there.

If a person who is not a claimant to the hearing or an individual the ALJ considers necessary and proper, requests to be present during the hearing as an outside observer, the ALJ must ask the claimant if he or she objects to the person being present. If a claimant objects, deny the person's request.

NOTE: Although Social Security hearings concern public business, each case involves a private claim. Therefore, the hearing is not public in the usual sense, and outside observers may not be present unless all claimants to the hearing consent and the ALJ finds that the outsider's presence would not disrupt the hearing.


HALLEX I-2-652

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: Conduct of Hearings

Chapter: I-2-600

September 13, 1995

Current through March 1997

I-2-652 OPENING STATEMENT (REVISED 05/95)

A. Opening Statement -- General

The ALJ will open the hearing with a brief statement explaining how the hearing will be conducted, the procedural history of the case, and the issues involved. In supplemental hearings, the ALJ need only identify the case, state the purpose of the supplemental hearing, and describe the issue(s) to be decided.

Generally, the content and format of the opening statement are within the discretion of the ALJ. However, if the claimant is unrepresented, the ALJ must ensure that the claimant is capable of making an informed choice about representation. For example, the ALJ should ask an unrepresented claimant the following questions on the record:

1. Did you receive the hearing acknowledgment letter and its enclosure(s)? (If not, the ALJ will provide the claimant with a copy and the opportunity to read the letter.)

2. Do you understand the information contained in that letter concerning representation? (If not, the ALJ will explain the claimant's options regarding representation, as outlined in the acknowledgment letter. Specifically, the ALJ will explain the availability of both free legal services and contingency representation as well as access to organizations that assist individuals in obtaining representation. See > I-2-020 C., Unrepresented Claimant, > I-2-090 Sample 2, Acknowledgment Letter - - Oral Hearing Requested -- Unrepresented Claimant, and > I-2-090 Sample 3, Enclosure to Letter to Unrepresented Claimant.)

Once the ALJ has determined that the claimant is capable of making an informed choice, he or she will secure, on the record, the claimant's decision concerning representation. The ALJ will also enter into the record the acknowledgment letter and enclosure(s) sent to an unrepresented claimant only if the claimant elects to proceed pro se at the time of the hearing.

B. Claimant Requests to Make a Private Recording of the Hearing

If the claimant or representative requests to make a private recording of the hearing, and the ALJ decides to grant the request, the ALJ should include, in the opening statement, language such as the following:

You asked if you may make a private recording of the proceedings of this hearing. This request is granted for the purpose of providing information for your personal use and convenience in pursuing this claim. However, if your recording interferes with the orderly conduct of the hearing,

I shall withdraw this permission. The hearing proceedings are confidential, and unauthorized use or disclosure of this information is prohibited by law, except as expressly permitted by the Privacy Act and the Freedom of Information Act. I also remind you that the recording I am making will be the official verbatim record of this proceeding.


HALLEX I-2-654

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: Conduct of Hearings

Chapter: I-2-600

September 13, 1995

Current through March 1997

I-2-654 OATHS AND AFFIRMATIONS (REVISED 10/95)

The ALJ should take all testimony under oath or affirmation. Testimony can be received from a witness who refuses to swear or affirm, but any such refusal must be noted on the record.

A. Administering the Oath or Affirmation

Before administering the oath or affirmation to a person, the ALJ will ask the person to raise his or her right hand. When the ALJ administers the oath or affirmation, the person need not repeat it, but should respond "I do."

B. Oath or Affirmation for a Claimant or Witness

The oath or affirmation for a claimant or witness is as follows:

Do you solemnly swear (or affirm) that the testimony you are about to give at this hearing (or, if a deposition, the testimony you are about to give at this time) shall be the truth, and nothing but the truth, so help you God (or, under penalty of law)?

C. Oath or Affirmation for an Interpreter

The oath or affirmation for an interpreter, which should be administered before the person testifies and after the interpreter certifies his or her relationship to the person testifying, including whether he or she is acting as the person's legal representative (See > I-2-610 A., Interpreter's Certification.), is as follows:

Do you solemnly swear (or affirm) that you will accurately translate the questions asked and the answers given in this case to the best of your ability, under penalty of perjury?

D. Multiple Witnesses

If there are several witnesses, the ALJ may administer the oath or affirmation to all of them at one time before anyone testifies, or separately to each person.

E. Incompetent Witnesses

The ALJ may choose not to administer an oath or affirmation to a child or an incompetent individual if the ALJ believes the witness will not understand the significance of the oath or affirmation. In this situation, the ALJ must impress upon the witness the importance of truthful answers. The ALJ must also state on the record that the witness was not sworn and explain why.

F. Recalling a Witness

If the ALJ recalls a witness who was previously sworn, the ALJ will not have to administer the oath or affirmation again, but should remind the witness that he or she is still under oath.


HALLEX I-2-656

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-656 ADDUCING THE EVIDENCE

Section 205(b) of the Social Security Act provides that the Administrative Law Judge (ALJ) must base his or her decision on "evidence adduced at the hearing." The regulations provide that the ALJ shall look fully into the issues, question the claimant and the other witnesses and accept as evidence any documents that are material to the issues. (> 20 CFR 404.944 and > 416.1444)

Accordingly, the ALJ must attempt to obtain all evidence pertinent to the matters at issue, and include in the record documentation of such attempts. The documentation should show that the ALJ informed the claimant of the need for evidence to support the claim, of the claimant's responsibility to obtain and submit the evidence, and where such evidence may be obtained. Further, the documentation should show that the ALJ gave the claimant adequate opportunity to obtain and submit the needed evidence, and that the ALJ otherwise made every reasonable effort to obtain such evidence.

When evidence is received, the ALJ must decide whether to admit it into the record as an exhibit, and resolve any conflicts in the evidence.


HALLEX I-2-658

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-658 ADMITTING EVIDENCE INTO THE RECORD AT THE HEARING

Citations: > 20 CFR 404.944, > 404.950, 410.641, 410.642, 416.1444, 416.1450; and > 42 CFR 498.61

The Administrative Law Judge (ALJ) will admit into the record any evidence he or she determines is material to the issues in the case. This may or may not include all of the documents the hearing office (HO) staff has marked and listed as proposed exhibits. (See > I-2-115, Exhibits; and > I-2-120, Preparation of Exhibit List.)

NOTE: The ALJ may admit such evidence into the record, even if it would not be admissible in court under the rules of evidence used by the courts.

A. Records of a Prior Hearing and Decision

The ALJ must obtain records of a prior hearing and decision (i.e., the exhibits, exhibits list and decision), add them to the current list of exhibits, and admit them into the record of the current case, if they are relevant to the current case and are mentioned at the current hearing or in the current hearing decision. If the ALJ decides not to obtain and admit such prior records into the record of the current case (e.g., the ALJ decides they are not relevant to the current case), he or she must explain at the hearing and in the decision why they are not being admitted.

If the ALJ decides to admit into the record of the current case only some of the exhibits on which a prior hearing decision was based, the ALJ must identify at the hearing and in the hearing decision which prior exhibits are being admitted into the record and explain why the other exhibits are not being admitted.

B. Admitting Evidence

Before taking any testimony, the ALJ will make the listed exhibits a part of the record by:

1. obtaining specific acknowledgment that the claimant has examined the exhibits;

2. asking the claimant if there are any objections to admitting the exhibits into the record; and

3. ruling on any objections.

C. Evidence Submitted at the Hearing

The ALJ may admit additional evidence into the record as the hearing proceeds, including documents the ALJ proposes as exhibits or documents a claimant offers as evidence.

Before admitting any proposed exhibit into the record at the hearing, the ALJ must offer the claimant(s) the opportunity to inspect the exhibit and offer any objections or comments. (See > I-2-720, > I-2-730, and > I-2-735 for a instructions on admitting evidence into the record after the hearing.)


HALLEX I-2-660

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-660 TESTIMONY OF CLAIMANTS AND WITNESSES (REVISED 04/94)

A. ALJ Responsibilities

The ALJ determines the subject and scope of claimants' and witnesses' testimony, and how and when they will testify at the hearing (e.g., the ALJ may decide to use the question and answer method or allow the claimant or witness to testify in his or her own way). If a claimant or witness requests to testify in a particular way, or at a particular time during the hearing, and has a good reason for making the request, the ALJ should make a reasonable effort to accommodate the person.

B. Right to Question and Cross-examine Witness

The claimant and the representative have the right to question witnesses. A claimant or representative is entitled to conduct such questioning as may be needed to inquire fully into the matters at issue. However, the ALJ determines when they may exercise this right. The ALJ usually allows the claimant and the representative to question a witness when the ALJ completes his or her initial questioning of the witness. If necessary, the ALJ may recall a witness for further questioning. Subpoenaed witnesses are subject to such cross-examination as may be required for full and true disclosure of the facts.

C. Right to be Present During Entire Hearing

The claimant and the representative have a right to be present during the entire hearing.

D. The Hearing When There are Multiple Claimants

When there is more than one claimant to the hearing, the ALJ will bring the claimants together at one hearing, if possible. (See > I-2-145 B., Informing Individuals Who May Be Parties to The Hearing; > I-2-165 B., Types of Hearings; and > I-2-310 A., Determining the Time and Place for Hearing.)

Each claimant at such a hearing will testify in the presence of the other claimants unless a claimant requests to testify separately and the other claimants consent to the separate testimony, or the ALJ decides on his or her own initiative to receive the testimony separately.

The ALJ may exclude a witness from the hearing, while others are testifying, if the ALJ thinks the presence of the witness might influence or embarrass the individual testifying, be harmful to either the witness or the individual testifying, or affect subsequent testimony.

NOTE: The ALJ must rule on any claimant's or witness' objection to the presence of other claimants or witnesses during his or her testimony.


HALLEX I-2-670

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-670 TESTIMONY OF A MEDICAL EXPERT (REVISED 04/94)

A. Prehearing Actions

When an ALJ determines that the testimony of an ME is needed at the hearing (See > I-2-530 through > I-2-544 for instructions on obtaining testimony or written medical opinion from an ME.), the ALJ must:

1. have no substantive contact related to the merits of the case with the ME except at the hearing or in writing;

2. send copies of any correspondence between the ALJ and the ME to the claimant and make such correspondence part of the record; and

3. have the ME examine any pertinent evidence received between the time the ME completed the case study and the time of the hearing.

NOTE: When an ME is scheduled to testify at a hearing, the HO staff must so notify the claimant by placing a statement to that effect in the "REMARKS" section of the Notice of Hearing.

B. Conduct of the Hearing

1. At the hearing, the ALJ must advise the claimant of the reason for the ME's presence and explain the procedures to be followed.

2. The ME may attend the entire hearing, but this is not required. If the ME was not present to hear pertinent testimony, e.g., testimony regarding the claimant's current medications, sources and types of treatment, etc., the ALJ will summarize the testimony for the ME on the record.

3. After administering the oath or affirmation, the ALJ must:

a. "qualify" the ME by eliciting information regarding his or her impartiality, expertise, professional qualifications, etc.;

b. ask the claimant and the representative if they have any objections to the ME testifying; and

c. rule on any objections.

C. Questioning the ME

The ALJ will ask the ME questions designed to elicit clear and complete information (See > I-2-590 Samples, Sample 4, Interrogatories to Medical Expert.). The claimant and the representative have the right to question the ME fully on any pertinent matter within the ME's area of expertise. However, the ALJ will determine when they may exercise this right and the appropriateness of any questions asked or answers given. For example:

1. If the ME's replies are ambiguous or overly technical, the ALJ will follow up with more specific questions in order to obtain a response meaningful to the layman.

2. The ALJ will not permit the ME to respond to questions on non-medical matters or to draw conclusions not within the ME's province; e.g., regarding vocational factors or the resolution of ultimate issues of fact or law.

3. The ALJ will not ask or allow the ME to conduct any type of physical or mental status examination of the claimant during the hearing.

4. The ME may respond to questions concerning the effects of the claimant's medical treatment on the claimant's ability to engage in work related activities.


HALLEX I-2-674

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-674 TESTIMONY OF A VOCATIONAL EXPERT (REVISED 04/94)

A. Prehearing Actions

When the ALJ determines that the testimony of a VE is needed at the hearing (See > I-2-548, Vocational Experts--General, through > I-2-561, Use of Dually-Qualified Vocational and Medical Experts.), the ALJ must:

1. have no substantive contact related to the merits of the case with the VE except at the hearing or in writing;

2. send copies of any correspondence between the ALJ and the VE to the claimant and make such correspondence part of the record; and

3. have the VE examine any pertinent evidence received between the time the VE completed the case study and the time of the hearing.

NOTE: When a VE is scheduled to testify at a hearing, the HO staff must notify the claimant by placing a statement to that effect in the "REMARKS" section of the Notice of Hearing.

B. Conduct of the Hearing

1. At the hearing, the ALJ must advise the claimant of the reason for the VE's presence and explain the procedures to be followed.

2. The VE may attend the entire hearing, but this is not required. If the VE was not present to hear pertinent testimony; e.g., testimony regarding past relevant work, educational background, etc., the ALJ will summarize the testimony for the VE on the record.

3. After administering the oath or affirmation, the ALJ must:

a. "qualify" the VE by eliciting information regarding his or her impartiality, expertise, professional qualifications, etc.;

b. ask the claimant and the representative if they have any objections to the VE testifying; and

c. rule on any objection.

C. Questioning of the VE

The ALJ will ask the VE questions designed to elicit clear and complete information. The claimant and the representative have the right to question the VE fully on any pertinent matter within the VE's area of expertise. However, the ALJ will determine when they may exercise this right and the appropriateness of any questions asked or answers given. For example:

1. If a VE's replies are ambiguous or overly technical, the ALJ will follow up with more specific questions in order to obtain a response meaningful to the layman.

2. The ALJ will not permit a VE to respond to questions on medical matters or to draw conclusions not within the VE's authority; e.g., regarding the claimant's residual functional capacity or the resolution of ultimate issues of fact or law.

3. The ALJ will not ask or allow the VE to conduct any type of vocational examination of the claimant during the hearing.

D. Hypothetical Questions

The ALJ may use hypothetical questions to elicit the VE's opinion about the availability of jobs which an individual could perform given certain factual situations. (See > I-2-590 Samples, Sample 5, Interrogatories to Vocational Expert.)


HALLEX I-2-676

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-676 ARGUMENTS BY THE CLAIMANT (REVISED 04/94)

The Social Security regulations provide that, upon request, the ALJ shall allow claimants a reasonable time to present oral argument, or file briefs or other written statements of fact or law. Absent special circumstances, the ALJ need not fix a time limit on oral argument. Oral argument should be recorded and made a part of the record of the case.

After all testimony has been presented, the ALJ must:

1. offer the claimant and representative an opportunity to make a final oral argument at the hearing, to submit a brief or other written statement within a reasonable time after the hearing, or to give their opinion regarding what the evidence proves and what finding of fact and conclusions of law the ALJ should make; and

2. address any assertions the claimant or representative make during their final oral argument which vary sharply with the evidence or raise new issues which may be relevant.


HALLEX I-2-678

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-678 CLOSING THE HEARING (REVISED 04/94)

Before closing the hearing, the ALJ must ask the claimant and the representative if they have any additional evidence to submit.

1. If the claimant and the representative have no additional evidence to submit, and the ALJ determines that no additional evidence is needed, the ALJ should state on the record that the hearing and record are closed, and inform the claimant and the representative that a written decision setting forth the findings of fact and the conclusions of law will be issued.

2. If the claimant and the representative have additional evidence to submit, or the ALJ determines that additional evidence is needed (e.g., a CE or an updated medical report), the ALJ will inform the claimant and the representative that the record will remain open after the hearing to allow them time to submit the additional evidence, or until the ALJ can obtain the additional evidence that is needed.

If the ALJ is to obtain the additional evidence, inform them that they will be given an opportunity to examine it, provide comments, and request a supplemental hearing before the ALJ issues a decision.

NOTE 1: The ALJ will decide how much time to allow the claimant and representative to obtain and submit additional evidence.

NOTE 2: If the ALJ obtains additional evidence after the hearing, he or she must give the claimant and the representative the opportunity to examine and comment on it, unless they have voluntarily waived their right to examine it. If they have voluntarily waived this right, the ALJ should so indicate on the record.


HALLEX I-2-680

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-680 CONTINUED OR REOPENED HEARING (REVISED 04/94)

Citations: > 20 CFR 404.944, > 410.640 and 416.1444; and > 42 CFR 498.60(b)

Circumstances may require an ALJ to adjourn a hearing in progress and continue it at a later date, conduct a supplemental hearing, or reopen the record to receive additional evidence. If testimony at a hearing leaves unanswered questions, the ALJ may supplement the hearing record with additional oral testimony, a deposition, or additional documentary evidence.

A. Continued Hearing

A. continuance is appropriate when:

1. certain testimony or a document adduced at the hearing has taken the claimant by surprise, is adverse to the claimant's interest, and presents evidence which the claimant could not reasonably have anticipated and to which the claimant is not prepared to respond;

2. the ALJ believes additional testimony regarding a new issue is appropriate;

3. during the hearing the ALJ discovers the need for the testimony of a person who is absent but who may be available at a later date; or

4. the claimant or the ALJ wishes to prevent evidence, but cannot present it by document, affidavit, or deposition without diminishing its probative value because of the absence of opportunity for detailed examination or cross-examination of the witness.

If the ALJ decides during the course of a hearing to continue the hearing at a later date, the ALJ may set the date for the continued hearing at that time or state that he or she will notify the claimant later of the date of the continued hearing.

NOTE: Continuance of a hearing generally delays issuance of the decision. The ALJ should continue a hearing only if there is a good reason to do so.

The rules governing the conduct of the initial hearing apply to the continued or supplemental hearing.

B. Supplemental Hearings

A supplemental hearing may be necessary when:

1. directed by order of remand (See > I-2-165 A., Determining the Right to a Hearing.), or

2. cross-examination of the author of post-hearing evidence is requested.

C. Reopening the Record

If an ALJ decides to admit additional evidence into the record of a case, or to conduct a supplemental hearing, he or she must reopen the record.


HALLEX I-2-690

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: Conduct of Hearings

Chapter: I-2-600

June 30, 1994

Current through March 1997

I-2-690 SAMPLES

SAMPLE 1

NOTICE TO DEPONENT

Dear ___________:

This confirms the telephone conversation regarding this matter.

You are requested to appear at the following time and place to give a deposition regarding the Social Security claim of ______________, which is pending before the Office of Hearings and Appeals of the Social Security Administration.

Time: (date and hour)

Place: (street address)

The purpose of the deposition is to obtain information you may have about ______

Please notify me promptly at (phone number) if you are unable to appear.

Sincerely yours,

Administrative Law Judge

SAMPLE 2

EXHIBIT LIST INCLUDING POSTHEARING DEPOSITION

LIST OF EXHIBITS

(Claimant/Applicant) Mary E. James

(Social Security Number) 000-00-0000

(Wage Earner) (Leave blank in Title XVI Cases or if name is same as above) ______

(Social Security Number) ______

EXHIBIT DESCRIPTION NUMBER OF

NUMBER PAGES

---------- -------------------------------------------------------- ---------

13 Medical report dated April 15, 1988, from R. Jones, M.D. 2

RECEIVED SUBSEQUENT TO HEARING

--------------------------------------------------------

14 Deposition dated May 5, 1988, from John James 2

RECEIVED IN CONNECTION WITH DEPOSITION

--------------------------------------------------------

15 Medical report dated May 1, 1988, from Ralph Jones, M.D. 2

SAMPLE 3

ORDER TO TAKE DEPOSITION

In the case of

(Claimant) ______

(Wage Earner) ______

Claim for

(Social Security Number) ______

(Social Security Number) ______

This case comes before me by order of remand of (insert name of the court), and of the Appeals Council. It appears that the claimant is receiving certain payments from the (insert name) Insurance Company for reasons of disability under Policy No._______. It further appears that there is no evidence in the files and records of this case of these payments. As such evidence is pertinent to the issues in this case:

IT IS THEREFORE ORDERED AS FOLLOWS:

1. That an Administrative Law Judge in the City of ___________ and State of______________, being the city in which the records of the (insert name) Insurance Company are located, issue a subpoena duces tecum and take such deposition as may be necessary to properly identify the pertinent record and receive copies of such records.

2. That the claimant, (enter name and address), and the attorney of record, who is (enter name and address), be notified of the time and place of the taking of the deposition and of their right to be present and that, if they do not desire to be present, they will have an opportunity to examine, comment on, object to, and refute the information obtained.

3. And that such further action be taken by the Administrative Law Judge as may be deemed appropriate.

Entered this ________ day of_____________________ A.D., 19___.

Administrative Law Judge ______

SAMPLE 4

TRANSCRIPT

In the case of

(Claimant) ______

(Wage Earner) ______

Claim for

(Social Security Number) ______

(Social Security Number) ______

Deposition of

(Name) ______

Taken at

(Address) ______

Taken on

(Month, Day, Year) ______

APPEARANCES: (List Names)

______

Administrative Law Judge ______

Hearing Assistant ______

The following is a transcript of the deposition of (name), taken by (name), Administrative Law Judge, of the Office of Hearings and Appeals, Social Security Administration, Department of Health and Human Services, on (date), at (city and State), in the case of (name), claimant and wage earner, who claims disability insurance benefits on Social Security number ________________. Notice of the time and place of taking the deposition was given to all parties in the case. The claimant, (name), was not present at the taking of the deposition which commenced at (time), on (date).

(Transcribe verbatim the Administrative Law Judge's opening statement.)

(name), having been duly sworn, testified as follows:


EXAMINATION BY THE ADMINISTRATIVE LAW JUDGE

Q. ______

A. ___

(A complete verbatim transcript of all the testimony.)

(The testimony was completed at (hour), (date).)

I have read the foregoing and hereby certify that it is a true and complete record of the questions and answers constituting the examination of the witness.

(name and title) ______

SAMPLE 5

EXHIBIT LIST (FINAL)

LIST OF PROPOSED EXHIBITS

(Claimant) ______

(Wage Earner) ______

(Social Security Number) ______

(Social Security Number) ______

EXHIBIT DESCRIPTION NUMBER

NUMBER OF

PAGES

--------- ---------------------------------------------------------- --------

1 Application for disability insurance benefits dated 4

January 11, 1988.

2 Earnings Record dated January 26, 1988. 1

3 DDS Determinations dated March 21, 1988 and June 15, 1988. 3

4 Medical History and Disability Report dated March 8, 1988. 8

5 Medical report dated May 6, 1988, regarding 5

hospitalization for the period September 10, 1987 to

September 11, 1987, received from Cook County Hospital.

6 Medical report dated February 5, 1988, from Ralph Jones, 3

M.D., with Professional Qualifications.

7 Copy of letter dated August 19, 1988 to James Rogers, 1

Ph.D.

8 Statement of Education and Experience of James Rogers, 4

Ph.D.

RECEIVED DURING HEARING

----------------------------------------------------------

9 Medical report dated April 15, 1982 from R. Jones, M.D. 2

EXHIBIT LIST--SECOND HEARING (FINAL)

EXHIBIT DESCRIPTION NUMBER

NUMBER OF

PAGES

------------- ------------------------------------------------------ --------

EXHIBITS IN CONNECTION WITH PRIOR APPLICATION

1 " 47 Exhibits from prior hearing. 60

B"1 ALJ's decision dated November 19, 1987:

Notice of Decision, list of exhibits marked 1 thru 47,

and transcript of hearing held on November 1, 1987.

B"2 Request for Review of ALJ's Action, November 26, 1987. 1

B"3 Appeals Council Exhibit--Medical report dated November 2

30, 1987, from Joseph Jones, M.D.

B"4 Appeals Council Exhibit--Professional Qualifications 1

of Joseph Jones, M.D.

B"5 Action of Appeals Council on Request for Review, dated 1

December 17, 1987.

B"6 Summons and complaint, dated December 29, 1987. 5

B"7 Decision of the U.S. District Court for the District 4

of Oregon, dated July 6, 1988.

EXHIBITS IN

CONNECTION

WITH

CURRENT

APPLICATION

B"8 Application for period of disability and disability 4

insurance benefits, filed on August 2, 1988.

SAMPLE 6

FRONT OF CASSETTE STORAGE ENVELOPE

Claimant's Name ______

Date and Time ______

ALJ ______

Claim Number ______

City ______

HA ______

Claimant Represented by ______

Witnesses ______

Cassette No. _______ of _______

0 Identification of Case

--

--Opening Statement by ALJ

--

--

5

--

--Exhibits 1-22 received

--Exhibit 23 received

--

10

--CL Sworn Exam by ALJ

--

15

--

20

--

--

25

--

30 Exam by Atty

--

--

35

--

40

--

45

--

0

--

--

--CL re-exam by ALJ

--CL re-exam by Atty

5

--

--

--

--

10 Witnesses Mrs. Jane Roe


--Sworn and exam by ALJ

--

15

--

20

--Mrs. Jane Roe exam by Atty

--

25

--

30

--Hearing recessed

--

35

--

40

--

45 Continued to Cassette #2

--

BACK OF CASSETTE STORAGE ENVELOPE

Cassette No. _________ of ________

0 Statement by Atty

--

--Opening Statement by ALJ

--

5

--

--Closed at 4:30 p.m.

--Exhibit 24 received

--

10

--

15 Record reopened to

--receive Exhibits 25 & 26

--Record closed

20

--

--

25

--

--

30

--

--

35

--

--

40

--

--

--

0

--

--

--

5

--

--

--

--

10

--

15

--

--

20

--

--

25

--

--

30

--

--

35

--

--

40

--

--

--


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