web-archive-net.com » NET » S » SEVERE.NET

Total: 125

Choose link from "Titles, links and description words view":

Or switch to "Titles and links view".
  • HALLEX I-2-140 - I-2-165 - Severe.net
    appearance or to ignore a hearing which was scheduled despite the waiver it would be appropriate to issue a notice that failure to appear at the scheduled hearing could jeopardize successful resolution of the claim The important consideration is that the claimant be fully advised of the possible consequences of his or her actions Under some circumstances an ALJ may issue a more detailed notice of hearing to specify the facts and issues which require development at an oral hearing or employ other procedures such as a prehearing conference to narrow and clarify issues If a claimant states in the request for hearing RH that he or she waives the right to appear at a hearing or otherwise notifies the hearing office HO that he or she intends to waive the right to appear the ALJ or the HO staff must take the following actions 1 If the claimant is unrepresented advise the claimant of the right to representation 2 Advise the claimant of the advantages of appearing at a hearing ensure that the claimant is fully advised of the possible consequences of his or her waiver and explain that even though he or she has waived the right to appear the ALJ may schedule and conduct a hearing if the ALJ deems it necessary 3 If the claimant still elects to waive the right to appear at a hearing obtain written documentation of the claimant s election on a Form HA 4608 Waiver of Right to Oral Hearing NOTE If a claimant waives the right to a hearing the ALJ must afford the claimant the right to submit written comments responses to interrogatories or other evidence HALLEX I 2 150 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 Prehearing Analysis and Case Workup Chapter I 2 100 April 26 1995 Current through March 1997 I 2 150 DEATH OF CLAIMANT REVISED 06 94 A Claimant Dies Before the Hearing Is Held If a claimant dies before the ALJ holds a hearing and the record indicates that there is another party or person who may be adversely affected by the determination to be reviewed at the hearing e g in a title XVI case if the claimant dies before SSA has paid all benefits due or before the claimant endorses the check for the correct payment SSA may pay the amount due to the deceased claimant s surviving eligible spouse or to his or her surviving spouse who was living with the underpaid claimant within the meaning of 202 i of the Act see 20 CFR 404 347 in the month he or she died or within 6 months immediately preceding the month of death or if the deceased underpaid claimant was a disabled or blind child when the underpayment occurred SSA may pay the amount due to the natural or adoptive parent s of the underpaid claimant who lived with the underpaid claimant in the month he or she died or within 6 months immediately preceding the month of death ascertain that individual s intentions by 1 contacting the individual directly if the record shows the individual s name and address or 2 requesting the servicing field office FO to determine the individual s name and address and obtain a statement of the individual s intentions Use Form HA 539 Notice Regarding Substitution of Party Upon Death of Claimant as appropriate NOTE FOs are instructed to notify the servicing hearing office HO when they become aware that a party awaiting a hearing has died The FO s notification should indicate whether a survivor s claim has been or will be filed the name and address of the survivor s or if no survivor s claim has been filed and none is being developed the name and address of the nearest known relative If there is another claimant or person who may be adversely affected by the ALJ s decision that individual wishes to proceed with the hearing and there is no other reason to dismiss the request for hearing RH the ALJ must hold a hearing and issue a decision See I 2 800ff Administrative Law Judge Decisions If there is no other claimant or person who may be adversely affected by the determination to be reviewed at the hearing or if that individual has stated in writing that he or she does not wish to proceed with the hearing the ALJ may dismiss the RH See I 2 435 Dismissal Due to Death of a Claimant The ALJ may also dismiss the RH if any of the other conditions for dismissal are met See I 2 405 Dismissing a Request for Hearing B Claimant Dies After the Hearing Has Been Held If the claimant dies after the hearing is held the ALJ will proceed with the actions necessary to complete the record and issue a decision See I 2 837 Decision When Claimant Dies C Appealed Issue Is Earnings Record Revision If the primary issue being appealed is revision of the wage earner s earnings record and a survivor establishes potential entitlement based on that earnings record make the survivor a substitute party upon request It is not necessary for the survivor to establish that he or she would be adversely affected by the ALJ s decision NOTE A survivor may choose not to pursue the appeal rights of the deceased as a substitute party However the survivor may later decide after receiving an initial and reconsidered determination on his or her claim to request a hearing in his or her own right Under these circumstances the issues appealed by the deceased may still be the subject of the hearing HALLEX I 2 155 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 Prehearing Analysis and Case Workup Chapter I 2 100 April 26 1995 Current through March 1997 I 2 155 ASSIGNMENT OF SERVICE AREA CASES TO ADMINISTRATIVE LAW JUDGES When the hearing office HO receives a valid RH or an Appeals Council remand and completes the procedures set forth in I 2 000ff Initial Processing of a Request for Hearing the Hearing Office Chief Administrative Law Judge HOCALJ acting as the Associate Commissioner s delegate shall assign the case to an ALJ A Master Docket HOs maintain a master docket which lists all RHs and remands received The HOCALJ generally assigns cases to ALJs from the master docket on a rotational basis with the earliest i e oldest RHs receiving priority unless there is a special situation which requires a change in the order in which a case is assigned See I 2 155 D B HO and Remote Hearing Sites The Regional Chief Administrative Law Judge RCALJ determines which areas within an HO s service area are to be served from the HO and which are to be served from a remote hearing site s In making such determinations the RCALJ considers recommendations from the HOCALJ Such areas may require modification periodically based on case receipts and other service and cost factors C Case Assignments Requiring Travel Within the Hearing Office Service Area 1 Rotate Assignments Generally the HOCALJ will rotate the assignments requiring travel among all ALJs in the HO consistent with the objective of scheduling older cases first 2 Travel Dockets ALJs will generally accumulate a docket of cases to be heard at the remote site so as to minimize administrative travel and related costs 3 Advance Administrative Approval for Travel An ALJ must obtain advance administrative approval of proposed travel The procedure for securing approval will vary from region to region depending upon the specific methods prescribed by the RCALJ D Special Situations Which Require a Change in the Order in Which Cases are Assigned 1 Critical Terminal Illness case This is a case which involves a critical including terminal illness TERI situation Flag and assign the case immediately See I 2 140 Critical Cases 2 Time limited court remand case This is a case in which the court has ordered the Secretary to complete a specific action s within a set period of time Flag and assign the case immediately 3 Section 8001 case In these cases the Appeals Council has assumed jurisdiction on its own motion of an ALJ s favorable disability decision and remanded the case for further proceedings If certain times are not or have not been met the Social Security Administration must pay interim benefits to the claimant until the proceedings on remand have been completed Flag and assign the case immediately 4 Delayed court remand case This is a court remand case which is over 125 days old counting from the date of the court s order or which the Appeals Council has remanded to an ALJ a second time Flag and assign the case immediately 5 Other court remand case Flag and assign the case immediately 6 Title XVI non disability case Assign the case immediately as the hearing decision must be issued within 90 days from the date of the RH 7 Disability cessation case Assign the case immediately to avoid or minimize overpayments 8 Case which appears to meet the criteria for dismissal Assign the case immediately as the ALJ may be able to issue a dismissal order quickly See I 2 400ff Dismissals 9 Case in which the claimant has waived the right to an oral hearing Assign the case immediately as the ALJ may be able to issue a decision quickly NOTE The ALJ may determine based on his or her examination of the record that a hearing should be held despite the waiver 10 Case in which a claimant has waived his or her right to regular advance notice of hearing A claimant s waiver of the right to regular advance notice indicates that he or she does not need advance notice to prepare for the hearing and desires a hearing as soon as possible Therefore if the HO staff can accommodate the claimant because of a cancellation by another claimant or any other reason it should assign the case to an ALJ and schedule a hearing as soon as possible without the usual advance notice 11 Appeals Council remand Flag and assign the case immediately Appeals Council remands including those generated by the courts are assigned to the same ALJ who issued the decision or dismissal unless a the case was previously assigned to that ALJ on a prior remand from the Appeals Council and the ALJ s decision or dismissal after remand is the subject of the new Appeals Council remand or b the Appeals Council or the court directs that the case be assigned to a different ALJ HALLEX I 2 157 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 Prehearing Analysis and Case Workup Chapter I 2 100 April 26 1995 Current through March 1997 I 2 157 ASSIGNMENT OF NON SERVICE AREA CASES TO ADMINISTRATIVE LAW JUDGES A Statement of Purpose The practice of assigning non service area cases to Administrative Law Judges ALJs for hearing must be viewed as a measure for resolving temporary workload imbalances or increasing productivity until more permanent measures can be taken Before making such assignments management must consider alternative approaches to balancing workloads 1 temporary or permanent service area realignments both intraregional and interregional 2 temporary staff details reassignments and 3 if the problem appears to be a long term one the hiring or transferring of ALJs If assigning non service area cases to ALJs is necessary Regions must use their own ALJs first before requesting out of region assistance Because the primary purpose of assigning non service area cases to ALJs is to process workloads more quickly do not assign non service area cases to ALJs unless the assisting office can hear and decide them sooner than the assisted office In addition to reducing processing times other added benefits to assigning non service area cases to ALJs include increased productivity and improved use of personnel B Procedures of Policy 1 Authority for Assigning Non Service Area Cases to ALJs a RCALJs are authorized to determine the need for and arrange the assignment of non service area cases to ALJs within their regions Non service area case assignments between Regions I and II and among Regions VII VIII and X are considered intraregional for purposes of this policy This information will be reported however on the Monthly Activity Report b The Office of the Chief ALJ OCALJ is responsible for determining the need for and the arrangement of the interregional assignment of non service area cases to ALJs To control costs such assignments will be arranged between contiguous regions when practicable 2 Assignment of Non Service Area Dockets to ALJs a Generally the Hearing Office Chief ALJ HOCALJ of the assisting office will assign non service area dockets to ALJs on a rotational basis Once the assignment is made cases cannot be returned to the assisted office for any reason without Regional Chief ALJ RCALJ approval in the case of intraregional assignments or OCALJ approval in the case of interregional assignments Disagreements between the assisted and assisting offices will be resolved by the RCALJ or OCALJ and both RCALJs in the case of interregional assignments ä The HOCALJ will assign non service area cases to ALJs in a manner that will afford each ALJ to the extent practicable the opportunity to travel to all available locations While there are advantages to establishing companion offices HOCALJs must make reasonable efforts to accommodate ALJs who prefer varied travel assignments ä If it is necessary to assign non service area cases to ALJs when they do not wish to travel but are capable of handling travel dockets or do not wish to travel to a particular location the HOCALJ will make the assignment on an established rotational basis In the event an ALJ refuses to accept the docket the HOCALJ will make the assignment in writing If the ALJ continues to refuse the HOCALJ will bring the matter to the attention of the RCALJ and if necessary the RCALJ will refer the matter to the CALJ for further action ä In general the only acceptable reason for failure to accept an assigned docket is medical incapacity to travel This applies both to intraregional and interregional travel In situations in which the ALJ asserts a medical condition to be such that he or she cannot travel the ALJ must obtain a physician s statement indicating the nature of the impairment its effect on his or her ability to travel and the expected period of incapacitation The ALJ must forward the statement through the HOCALJ and RCALJ to the CALJ for review and decision In situations in which the ALJ indicates some other reason for his or her refusal to accept travel dockets e g the need for the ALJ s presence at home to care for an ill family member the RCALJ or CALJ will evaluate the situation on a case by case basis RCALJs may authorize temporary exemptions from travel requirements i e up to six months ALJs requesting exemptions of more than six months must forward their requests through the RCALJ to the CALJ for approval b To permit expeditious processing of cases the following types of non service area cases will not be assigned to ALJs cases without current claim files health insurance cases retirement and survivors insurance cases cases involving supplemental security income for the aged continuing disability review cases in which the claimant has opted to continue receiving payment of benefits pending the hearing decision and cases requiring research into state law if being assigned to an ALJ in another state In addition since Title XVI does not apply to Puerto Rico the only non service area cases which should be assigned to Puerto Rico ALJs are Title II cases and SSI cases in which disability is the only issue When these limitations on the composition of a non service area docket cause difficulty in forming a complete docket exceptions to the limitations may be made if agreeable to the HOCALJs in both office If a hearing office receives non service area transfer cases that do not appear to require hearings e g the ALJ decides that a case s may be paid on the record or should be dismissed the assisting HO will keep and process these cases to completion but will obtain additional cases from the assisted office to ensure that the visiting ALJ will have a full docket of hearings c Generally the assisted HO will give preference to remote site cases over local HO cases This will help keep travel costs to a minimum and free HO support staff to work on local cases However if the HO has a large percentage of local cases pending that are considerably aged the HO will give preference to the local cases Reducing processing times must be the primary objective when deciding whether to assign remote site cases or local cases to non service area ALJs d To the extent possible the assisting HO will schedule hearings on non service area cases within 60 days of receipt or within a reasonable amount of time to permit a processing time that is comparable to or less than the average processing time for the assisted HO In the case of interregional assignments OCALJ will advise the assisting RO of the assisted HO s average processing time in the case of intraregional assignments the RO will provide the information to the assisting HO Assisting HOs that frequently accept travel dockets may not always be in a position to schedule hearings within 60 days In such situations OCALJ and the affected RO or just the affected RO in

    Original URL path: http://www.severe.net/hallex2-1a.html (2016-05-01)
    Open archived version from archive


  • HALLEX I-2-170 - I-2- - Severe.net
    record and shall be binding on all parties HALLEX I 2 180 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 Prehearing Analysis and Case Workup Chapter I 2 100 June 30 1994 Current through March 1997 I 2 180 WITHDRAWAL OF REQUESTS FOR HEARING A General A claimant may change his or her mind after filing a request for hearing RH and withdraw the request The request for withdrawal must be a signed written request or an oral request made on the record at the hearing B Hearing Office HO Receives Request for Withdrawal 1 If the HO has the claim file CF immediately assign the case to an ALJ to consider whether the RH should be dismissed See I 2 420 Dismissal at the Claimant s Request 2 If the HO does not have the CF the HO staff should obtain the CF before assigning the case to an ALJ The CF is needed to determine whether there is any other party who may be adversely affected by dismissal of the RH See I 2 420 B Another Claimant to the Hearing May be Adversely Affected by Dismissal of the RH C Effect of Withdrawal The dismissal of an RH is binding unless it is vacated by an ALJ or the Appeals Council See I 2 400ff Dismissals HALLEX I 2 185 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 Prehearing Analysis and Case Workup Chapter I 2 100 June 30 1994 Current through March 1997 I 2 185 CLARIFICATION OF APPEALS COUNCIL REMAND ORDERS REVISED 09 92 A When an Administrative Law Judge ALJ May Seek Clarification An ALJ may seek clarification of an Appeals Council remand order only when the ALJ 1 cannot carry out the directive s set forth in the order or 2 the directive s appears to have been rendered moot ALJs will not seek clarification of Appeals Council remand orders under any other circumstances 1 The following are examples of valid clarification requests a The Appeals Council directs that the ALJ obtain a hearing test and examination performed by a qualified otolaryngologist There is no otolaryngologist in the area servicing the hearing office b The Appeals Council remands a case solely because the hearing tape cannot be located The hearing tape is found before a new hearing is held 2 The following are examples of clarification requests that are not valid and will not be granted a The ALJ takes issue with the Appeals Council s finding that the claimant had good cause for failing to appear at the scheduled hearing b The ALJ asks the Appeals Council to specify its basis for review since the remand order did not cite a regulatory basis for granting review B Procedure to Request Clarification 1 If an ALJ has a valid clarification request the ALJ or a hearing office HO staff person the ALJ designates must request concurrence from the Regional Chief ALJ RCALJ The request must be made within 20 days after the date the HO receives the Appeals Council s remand order and the claim file s It may be made orally or in writing via E Mail 2 If the RCALJ believes the request is a valid clarification request the RCALJ or a Regional Office RO staff person the RCALJ designates will request concurrence from the Chief ALJ The RCALJ or designee must make the request to the Chief ALJ within 5 days after the date the RO receives the ALJ s request for concurrence It may be made orally or in writing via E Mail and must be directed to the Director of the Division of Field Practices and Procedures DFPP in the Office of the Chief ALJ OCALJ The E Mail address is S3GJ2 OCALJ DFPP 3 The Chief ALJ will approve or disapprove the clarification request and inform the RCALJ or designee of the decision orally or in writing via E Mail within 5 days after the date the Director of DFPP received the RCALJ s request for concurrence If the Chief ALJ informs the RCALJ or designee of the decision orally the RCALJ or designee will be responsible for informing the ALJ If the Chief ALJ informs the RCALJ or designee via E Mail a copy of the E Mail message will be sent to the ALJ 4 With the Chief ALJ s approval the ALJ will send the clarification request and claim file s to Deputy Chair Appeals Council Office of Hearings and Appeals One Skyline Tower Suite 1400 5107 Leesburg Pike Falls Church Virginia 22041 3255 The ALJ must include the following or a similar statement at the beginning of the clarification request The Chief Administrative Law Judge has approved this request for clarification of an Appeals Council remand order The ALJ will also send a copy of the clarification request to the claimant representative Chief ALJ Attention Director of DFPP and RCALJ 5 The Appeals Council will respond to the ALJ in writing with copies to the claimant representative Chief ALJ Attention Director of DFPP and RCALJ within 20 days after the date it receives the clarification request and claim file s NOTE The Appeals Council will not vacate a Remand Order after a new hearing has been held HALLEX I 2 190 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 Prehearing Analysis and Case Workup Chapter I 2 100 June 30 1994 Current through March 1997 I 2 190 SAMPLES SAMPLE 1 MEMORANDUM FOR REQUESTING MISSING MEDICAL EVIDENCE MEMORANDUM TO Name and address of RCALJ FROM Name and address of HO SUBJECT Request for Additional Assistance in Reconstructing Claim File of Name and SSN of Claimant The reconstructed claim file

    Original URL path: http://www.severe.net/hallex2-1b.html (2016-05-01)
    Open archived version from archive

  • HALLEX I-2-201 - I-2-290 - Severe.net
    claimant in writing of the reasons why they are not met and return the CF to the HO for action on the RH Upon receipt of such a case in the HO the HO staff and the ALJ will proceed with their actions on the RH in the usual manner NOTE Under the regulations an administrative action denying an EAP request is not an initial determination subject to administrative or judicial review See CFR 404 903 k and 416 1403 a 4 Therefore there is no right to appeal a denial of a request to use the EAP and the denial is final b If the criteria to use the EAP are met the CALJ will ä prepare a formal agreement See 20 CFR 404 926 and 416 1426 and send the agreement to the EAP requestor for signature ä upon return of the signed agreement also sign it and forward copies to all signatories and to the Office of Civil Actions OCA and place the original in the CF and a copy in the CALJ s files ä notify the HO that the EAP request has been approved and that the RH should be dismissed and ä forward the CF to OCA to hold pending potential filing of a civil action When the ALJ receives notice that the CALJ has approved the request to use the EAP the ALJ will prepare and issue an Order of Dismissal The basis for the dismissal should be by application of party See I 2 420 Dismissal at the Claimant s Request NOTE If a request to use the EAP is approved the requestor will have 60 days from the date he or she receives the copy of the signed agreement to file an action in a Federal district court HALLEX I 2 230 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 Issues Before the Administrative Law Judge Chapter I 2 200 June 30 1994 Current through March 1997 I 2 230 COLLATERAL ESTOPPEL ISSUES ALREADY DECIDED UNDER ANOTHER TITLE Citations 20 CFR 404 950 f and 416 1450 f When an Administrative Law Judge ALJ has for decision an issue which has already been decided in a previous determination or decision in a claim involving the same claimant but arising under a different title of the Social Security Act or under the Federal Mine Safety and Health Act of 1977 the ALJ will not consider the issue again In this situation the ALJ will apply the doctrine of collateral estoppel and accept the factual finding made in the previous determination or decision unless there are reasons to believe that it was wrong The ALJ will include in the current decision a reference to the factual finding made in the previous determination or decision and a statement that such finding is binding in the current claim NOTE Collateral estoppel differs from res judicata in that res judicata applies to final determinations or decisions of the Secretary made under the same title about the individual s rights on the same facts and on the same issue or issues Res judicata is a basis for dismissal of a request for hearing in its entirety or as to one or more issues whereas collateral estoppel is not a basis for dismissal See I 2 440 Res Judicata HALLEX I 2 235 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 Issues Before the Administrative Law Judge Chapter I 2 200 June 30 1994 Current through March 1997 I 2 235 EARNINGS RELATED ISSUES THE ADMINISTRATIVE LAW JUDGE MAY AND MAY NOT ADDRESS JURISDICTION A Social Security Administration SSA Jurisdiction ä SSA has authority to determine what constitutes wages and self employment income for Social Security purposes ä SSA has limited authority under Section 218 of the Social Security Act to make determinations regarding the Federal Insurance Contributions Act FICA tax liability for wages paid before January 1 1987 This authority extends only to employees covered by Federal State agreements entered into pursuant to section 218 of the Act B Internal Revenue Service IRS Jurisdiction IRS has authority to make determinations regarding FICA tax liability for wages paid January 1 1987 or thereafter Section 9002 of the Omnibus Budget Reconciliation Act of 1986 P L 509 enacted on October 21 1986 transferred jurisdiction to IRS with respect to wages paid under an agreement pursuant to section 218 of the Act after December 31 1986 If a request for hearing includes or is based on tax issues amounts liability withholding refunds etc for wages paid January 1 1987 or thereafter the request with respect to such issues should be dismissed for lack of jurisdiction The dismissal notice should inform the claimant that only IRS may resolve tax issues See I 2 430 Dismissal No Right to a Hearing HALLEX I 2 290 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 Issues Before the Administrative Law Judge Chapter I 2 200 June 30 1994 Current through March 1997 I 2 290 SAMPLES ISSUES AND EXAMPLES OF LANGUAGE WHICH MAY BE APPROPRIATE IN THE NOTICE OF HEARING A Title II overpayments The general issues are whether you were overpaid benefits within the meaning of Section 204 of the Social Security Act and if so whether recovery of the overpayment may be waived The specific issues are whether you were without fault as defined in Social Security regulation 404 507 in causing the overpayment and if so whether recovery of the overpayment would 1 defeat the purpose of Title II of the Act as defined in Social Security regulation 404 508 or 2 be against equity and good conscience as defined in Social Security regulation 404 509 B

    Original URL path: http://www.severe.net/hallex2-2.html (2016-05-01)
    Open archived version from archive

  • HALLEX I-2-301 Severe.net
    HEARING GENERAL Citations 20 CFR 404 936 404 938 404 999a 404 999d 410 636 410 638 416 1436 416 1438 and 416 1495 416 1499 42 CFR 498 52 and 498 53 Social Security Ruling 88 2c Claimant as used herein refers to the party to the initial reconsidered or revised determination who has requested a hearing before an Administrative Law Judge ALJ and any other party to the

    Original URL path: http://www.severe.net/hallex2-301.html (2016-05-01)
    Open archived version from archive

  • HALLEX I-2-305 Severe.net
    claims under title II title XI and title XVIII of the Social Security Act are held in the 50 States the District of Columbia the Commonwealth of Puerto Rico Guam American Samoa the Northern Mariana Islands and the Virgin Islands Hearings involving claims under title XVI of the Social Security Act are held in the 50 States the District of Columbia and the Northern Mariana Islands Hearings involving claims under

    Original URL path: http://www.severe.net/hallex2-305.html (2016-05-01)
    Open archived version from archive

  • HALLEX I-2-306 - 2-390 Severe.net
    claimant s proper name applicable Social Security number s proper names of expert witnesses the HO and field office FO addresses and the time and place set for the hearing 2 A statement of the issues to be decided See I 2 200ff Issues Before the Administrative Law Judge 3 A statement informing the claimant of the right to designate a representative 4 A statement informing the claimant that reimbursement of travel expenses may be made under certain circumstances 5 An explanation of the procedures for requesting a change in the time and place of the hearing 6 A reminder that the ALJ may dismiss the request for hearing if the claimant fails to appear at the scheduled hearing without good cause 7 Any other information about the scheduling and conduct of the hearing that the ALJ believes the claimant should have NOTE The information provided to the claimant and others about the hearing must be complete technically correct and worded in a manner that can easily be understood D Distribution of Notice of Hearing Distribute the Notice of Hearing as follows 1 Original to the claimant 2 1st copy to claim file 3 2nd copy to representative if any 4 3rd copy to HO file HALLEX I 2 320 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 Scheduling and Notice of Hearing Chapter I 2 300 June 30 1994 Current through March 1997 I 2 320 ACKNOWLEDGMENT OF NOTICE OF HEARING A Acknowledgment Form With each Notice of Hearing send a Form HA 504 Acknowledgment of Notice of Hearing or the Spanish version HA 504 SP B Administrative Law Judge s ALJ s Name on Acknowledgment Form To ensure that the acknowledgment form is routed to the proper ALJ when it is returned to the hearing office HO the HO staff should stamp the ALJ s name and address on each form If a particular ALJ s address stamp is not available the HO staff must stamp the HO s address and type the ALJ s name and title at the lower left hand corner of the form C Acknowledgment Form Not Returned If the acknowledgment form is not returned within 7 days send a written reminder See I 2 390 Sample 1 Reminder to Return Acknowledgment Card or telephone the claimant or representative if any and ask whether they plan to attend the hearing 1 Claimant or representative received the notice of hearing a If the claimant or representative received the notice of hearing and plans to attend the scheduled hearing ask them to return the HA 504 confirming their intentions b If the claimant or representative received the notice of hearing and does not plan to attend the scheduled hearing but would like to attend a hearing at another time consider whether there is good cause to postpone the hearing ä If the ALJ finds good cause and postpones the hearing send a new Notice of Hearing and Form HA 504 See I 2 310 E ALJ Finds Claimant Has Good Cause for Objecting To Time or Place Set for the Hearing ä If the ALJ does not find good cause to postpone the hearing notify the claimant and representative that the hearing will be held as scheduled and that failure to attend may result in a dismissal Include in this notice an explanation of the ALJ s reasons for not finding good cause and document the file i e retain a copy of any written notice or prepare and retain a report of contact of any oral notice See I 2 425 Dismissal Due to Claimant s Failure to Appear 2 Claimant or representative did not receive the notice of hearing If the claimant or representative say that they did not receive the notice of hearing verify the address and send a new notice by certified mail with return receipt requested Also send all subsequent correspondence in the same manner Retain the return receipt s in the claim folder NOTE 1 We consider a notice to be received if either the claimant or the representative receives it NOTE 2 If a claimant or representative do not receive a notice of hearing and it is necessary to send a new notice the new notice must be sent at least 20 days before the hearing unless the claimant waives the right to 20 day notice See I 2 325 Waiver of Advance Notice of Hearing NOTE 3 The certified mail and return receipt procedure may be appropriate where there is a high incidence of nonreceipt of mail in a specific locality However the Regional Chief ALJ must approve this procedure in advance HALLEX I 2 325 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 Scheduling and Notice of Hearing Chapter I 2 300 June 30 1994 Current through March 1997 I 2 325 WAIVER OF ADVANCE NOTICE OF HEARING A claimant may waive the right to advance notice of the hearing on his or her own initiative or upon the Administrative Law Judge s suggestion in order to expedite action on the claim Any written waiver signed by the claimant is acceptable If the claimant has not submitted a written waiver prepare a Form HA 510 Waiver of Advance Notice of Hearing for the claimant s signature Place the original waiver in the claim file and a copy in the hearing office file HALLEX I 2 330 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 Scheduling and Notice of Hearing Chapter I 2 300 June 30 1994 Current through March 1997 I 2 330 POSTPONEMENT OF HEARING AMENDED NOTICE OF HEARING When an Administrative Law Judge ALJ has notified a claimant of the time

    Original URL path: http://www.severe.net/hallex2-306.html (2016-05-01)
    Open archived version from archive

  • HALLEX I-2-400 Severe.net
    is Needed If it is necessary to develop good cause send a form HA L531 Notice to Show Cause for Failure to Appear to the claimant and representative Give them 10 days from the date of the notice to respond and allow an additional 5 days for mailing time NOTE Before dismissing a claimant s RH for failure to appear the ALJ must ensure that the claimant fully understood the possible consequences of his or her failure to appear 2 When a Show Cause Notice is not Needed If neither the claimant nor the representative appears at the scheduled hearing the ALJ may dismiss the RH without sending a show cause notice if a the record shows that the claimant was notified that the RH could be dismissed without further notice if neither the claimant nor the representative appear at the scheduled hearing See I 2 390 Sample 1 Reminder to Return Acknowledgement Card and there is no indication of good cause or b the claimant s whereabouts are unknown e g the Notice of Hearing is returned to the HO as undeliverable all attempts to contact the claimant by other means are unsuccessful and it is concluded that the claimant cannot be located However before dismissing an RH because the claimant s whereabouts are unknown check the Social Security Administration Data Acquisition and Retrieval System SSADARS for the claimant s latest address and ensure that the latest address was correctly used on the Notice of Hearing and in all other attempts to contact the claimant and ensure that all attempts to contact the claimant are clearly documented in the claim file For example document the claim file with any envelopes returned by the post office as undeliverable and reports of any statements made by individuals regarding the absence or disappearance of the claimant NOTE 1 A show cause order cannot be used as an alternative to following proper notice procedures unless there is evidence establishing that notice was actually received See I 2 315 Notice of Hearing and I 2 320 Acknowledgement of Notice of Hearing NOTE 2 Even if you are unable to locate the claimant do not dismiss the RH until after the time scheduled for the hearing The claimant may learn of the scheduled hearing in another way and appear If the claimant does not appear at the scheduled hearing dismiss the RH In the dismissal order describe all efforts to contact the claimant D Claimant s Representative Appears at Hearing Without the Claimant If a claimant s representative appears at a scheduled hearing without the claimant the ALJ must determine whether the claimant is an essential witness for a proper determination of the case 1 If the claimant is not considered to be an essential witness the ALJ should proceed with the hearing and issue a decision 2 If an ALJ determines the claimant is an essential witness the ALJ should offer to postpone the hearing so that the claimant may appear If the representative declines the offer the ALJ must document the record that the offer was made and proceed with the actions necessary to complete the record and issue a decision NOTE If a representative appears at a scheduled hearing without the claimant dismissal is not appropriate even if the ALJ has determined that the claimant is an essential witness E Claimant Requests Change in the Time or Place of the Hearing If a claimant or representative requests the ALJ to change the time or place set for the hearing the ALJ will consider whether the claimant or representative has good cause for requesting the change If the ALJ finds that the person requesting the change does not have good cause the ALJ must notify the person of his or her finding If the ALJ notifies the person of his or her finding and neither the claimant nor the representative appears at the time and place set for the hearing the ALJ may dismiss the RH for failure to appear F Claimant Waived Right to Oral Hearing ALJ Nevertheless Scheduled Hearing The ALJ may not dismiss an RH for failure to appear if the claimant waived the right to an oral hearing and the ALJ nevertheless scheduled a hearing In this situation the ALJ must decide the case on the evidence of record G Failure to Appear on Time for Scheduled Hearing An ALJ may dismiss an RH on the basis of failure to appear if the claimant or representative fail to appear on time for the hearing and the ALJ decides that good cause does not exist for such failure HALLEX I 2 430 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 Dismissals Chapter I 2 400 June 30 1994 Current through March 1997 I 2 430 DISMISSAL NO RIGHT TO A HEARING REVISED 06 94 The Administrative Law Judge ALJ may dismiss a request for hearing RH if it was not filed by a proper claimant or there is otherwise no right to a hearing A Proper Claimant See I 2 145 Parties to the Hearing Generally the ALJ will consider an RH to have been filed by a proper claimant if it was filed by 1 a claimant to the initial reconsideration or revised determinations 2 an individual who was not a claimant to the initial reconsideration or revised determinations but who shows in writing that his or her rights may be adversely affected 3 a duly appointed representative on behalf of a proper claimant or 4 an individual who has filed an application for and pursued a claim on behalf of a proper claimant because that claimant is a minor child mentally incompetent or physically unable to file a request for hearing B Actions Which Must Precede a Right to a Hearing A claimant has a right to a hearing if the claimant has received 1 notice of a reconsideration or revised reconsideration determination notice of revised initial determination in non disability cases or an ALJ s notice of proposed revised decision based on new evidence in title II title XVI title XVIII cases or certain black lung benefits claims under the Federal Mine Safety and Health Act of 1977 or 2 an initial determination on the issue of waiver of overpayment if the field office FO is unable to conduct the personal conference or the claimant declines the personal conference to request an ALJ hearing in a combined overpayment reconsideration or waiver situation NOTE 1 When an ALJ determines that the claimant has not exhausted all earlier administrative procedures i e the claimant has not received the required initial and reconsidered or revised determinations the ALJ must find that the claimant does not have the right to a hearing and dismiss the request for hearing NOTE 2 If a request for hearing includes or is based on issues for which the Social Security Administration SSA does not have jurisdiction e g issues which are within the Jurisdiction of a State agency See I 2 210 Notice of Issues or the Internal Revenue Service See I 2 235 Earnings Related Issues the Administrative Law Judge May and May Not Address Jurisdiction the ALJ must rule on the issues for which SSA has jurisdiction and dismiss the request for hearing with respect to the issues for which SSA does not have jurisdiction C Dismissal Orders 1 Use Form HA 5273 Order of Dismissal No Reconsideration Determination for the dismissal order when there has been no reconsideration in a title II or title XVIII case 2 Use Form HA 5275 SI Order of Dismissal No Reconsideration Determination for the dismissal order when there has been no reconsideration in a title XVI initial as opposed to cessation claim In other cases use Form HA 515 Order to be Used for Other than Preprinted Order or the blank order provided in section p006 of the Hearing Text Guide macro 0016 entry g Exercise care to include the appropriate facts pertinent statutory and regulatory authority and supporting rationale HALLEX I 2 435 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 Dismissals Chapter I 2 400 June 30 1994 Current through March 1997 I 2 435 DISMISSAL DUE TO DEATH OF A CLAIMANT REVISED 06 94 Different criteria must be considered in title II title XVI title XVIII and Black Lung cases when deciding whether to dismiss a request for hearing RH because the claimant who filed the request for hearing has died A Title II Title XVIII and Black Lung Cases 1 The ALJ will dismiss the RH when the claimant who filed the RH dies while the request is still pending before the ALJ if the case was not remanded by a Federal court and there is no other claimant who may be adversely affected by the determination which is the subject of the RH or such a claimant exists but the claimant has stated in writing that he or she does not want to pursue the claim NOTE 1 An ALJ may not dismiss an RH in any case remanded by a Federal court The regulations at 20 CFR 404 983 and 416 1483 state that when a Federal court remands a case to the Secretary for further consideration the Appeals Council acting on behalf of the Secretary may make a decision or it may remand the case to an ALJ with instructions to take action and issue a decision or return the case to the Appeals Council with a recommended decision See I 2 815 Recommended Decisions I 2 818 Administrative Law Judge Decisions in Court Remand Cases and I 2 837 Decision When Claimant Dies NOTE 2 The ALJ will vacate a dismissal if within 60 days after the date of the dismissal another person submits a written request for a hearing on the claim and shows that he or she may be adversely affected by the determination that was to be reviewed at the hearing 2 The ALJ will not dismiss the RH if the claimant who filed the RH dies while the case is pending before the ALJ and after the record has been completed In this situation the ALJ will issue a decision See I 2 837 Decision When Claimant Dies B Title XVI Cases 1 The ALJ will dismiss the RH when the claimant who filed the RH dies while the request is still pending before the ALJ if the case was not remanded by a Federal court See Note 1 above there are no other claimants there is no information in the record which shows that there is another person who may be adversely affected by the determination being reviewed e g in a title XVI case if the claimant dies before SSA has paid all benefits due or before the claimant endorses the check for the correct payment SSA may pay the amount due to the deceased claimant s surviving eligible spouse or to his or her surviving spouse who was living with the underpaid claimant within the meaning of 202 i of the Act see 20 CFR 404 347 in the month he or she died or within 6 months immediately preceding the month of death or if the deceased underpaid claimant was a disabled or blind child when the underpayment occurred SSA may pay the amount due to the natural or adoptive parent s of the underpaid claimant who lived with the underpaid claimant in the month he or she died or within 6 months immediately preceding the month of death who wishes to pursue the claim and the claimant did not authorize interim assistance reimbursement IAR pursuant to section 1631 g of the Act NOTE 1 The ALJ will vacate a dismissal if within 60 days after the date of the dismissal a person claiming to be the claimant s survivor who may be paid benefits due to the claimant under 20 CFR 416 542 b submits a written request for a hearing and shows that a decision on the issues that were to be considered at the hearing may adversely affect him or her NOTE 2 An eligible spouse or other surviving spouse or parent who shows that he or she may potentially qualify to receive an underpayment may pursue the request as a substitute party 20 CFR 416 542 b specifies who may qualify to receive a Supplemental Security Income SSI underpayment 2 When a deceased claimant authorized IAR to a State the ALJ must issue a decision See I 2 837 Decision When Claimant Dies State Medicaid eligibility determinations under title XIX of the Act often flow from SSI eligibility determinations When the Social Security Administration SSA is not required to issue an SSI eligibility determination or decision because the claimant who filed the application has died e g there is no substitute party and there is no IAR in effect Medicaid determinations appeals and payments are the responsibility of the State Even if there are unpaid medical expenses the ALJ will dismiss an RH if there is no information showing the existence of a person who may pursue the SSI claim as a substitute party and there is no IAR in effect If a survivor who is not a qualified substitute party wishes to pursue Medicaid eligibility the survivor must contact the appropriate agency of the State which administers the Medicaid program HALLEX I 2 440 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 Dismissals Chapter I 2 400 June 30 1994 Current through March 1997 I 2 440 RES JUDICATA A General Under the doctrine of res judicata an ALJ may dismiss a request for hearing RH when SSA has previously rendered a final and binding decision and the facts and the issues in a subsequent claim are the same For res judicata to apply all of the following criteria must be present 1 There has been a previous determination or decision by the Secretary with respect to the rights of the same party See D below 2 The previous determination or decision was made under the same law and was based on the same facts pertinent to the same issue or issues See E and F below 3 The previous determination or decision has become final either by administrative or judicial action When the requisite conditions for finding res judicata are present the ALJ must dismiss the RH An exception to this requirement occurs when a subsequent application indicates that the period determined became final without a hearing or decision before an ALJ and there is prima facie evidence that the claimant who was pro se when the prior application was adjudicated lacked the mental competence to understand the right and obligation to pursue an administrative appeal In this instance the ALJ must address and resolve in adjudicating the current claim or in considering the request for reopening the prior claim under the terms of administrative finality the issue of whether the claimant lacked the mental competence to pursue an appeal on the prior claim The claimant bears the burden of producing evidence of incompetency If the ALJ considers the unrefuted prima facie evidence and finds that the pro se claimant was not competent at the time of the prior determination then the ALJ shall find that good cause exists for reopening the final determination on the prior application Under the doctrine of administrative finality the ALJ shall consider the request for reopening as an untimely filed RH find good cause for the untimely filing and provide the claimant with a full hearing on all the issues raised by the prior and subsequent claims If there is no prima facie evidence of mental incompetence and the ALJ concludes that the pro se claimant was mentally competent at the time of the prior determination regardless of whether a hearing on the incompetence issue was held the ALJ may not grant the request for reopening and must dismiss the RH on the current claim based on res judicata except as noted below NOTE In the Fourth Circuit an adjudicator may not decline to find good cause to reopen a final determination or decision on a prior claim without first providing the claimant a separate on the record evidentiary hearing and decision on the issue of whether the claimant was mentally competent at the time of the prior determination or decision If after such hearing the ALJ finds that the claimant was not mentally competent at the time of the final determination or decision on the prior claim the ALJ must 1 issue a separate decision on the mental competency issue and 2 provide the claimant a full hearing and decision on all issues raised by the prior and current claims The ALJ may not dismiss the request for hearing on the basis of res judicata If however the ALJ finds that the claimant was mentally competent at the time of the final determination or decision on the prior claim the ALJ must 1 issue a separate decision on the mental competency issue and 2 and proceed with action on the request for hearing in the usual manner The ALJ may dismiss the request for hearing on the basis of res judicata if the conditions for res judicata are met B Res Judicata at Pre ALJ Hearing Levels If a claimant files a new application and SSA finds that res judicata applies because the application involves the same law issues facts and person s as a previously adjudicated application SSA will not issue an initial determination on the merits of the new application or provide the right to reconsideration on the merits However SSA will provide the claimant appeal rights i e the right

    Original URL path: http://www.severe.net/hallex2-4.html (2016-05-01)
    Open archived version from archive

  • HALLEX I-2-500 - 560 Severe.net
    sequential evaluation process i e no severe impairment would be appropriate If the claimant in a cessation case does not have a good reason for failing or refusing to submit requested evidence or undergo a requested CE or test the ALJ may determine that the claimant s disability or blindness has ceased because of the failure or refusal 20 CFR 404 1518 404 1579 e 2 416 918 and 416 979 e 2 NOTE A claimant s failure or refusal to submit requested evidence or undergo a requested CE or test is never a basis for dismissing the claimant s RH 20 CFR 404 957 and 416 1457 A Claimant With No Apparent Mental Impairment Fails or Refuses to Submit Requested Evidence Initial Entitlement Claims If a claimant with no apparent mental impairment fails or refuses to submit requested evidence the ALJ or HO staff will determine the claimant s reason s If the claimant has a good reason the ALJ or HO staff will attempt to obtain the evidence by other means If the claimant does not have a good reason the ALJ or HO staff will 1 prepare a report of contact RC to document the claimant s reason s unless the reason s is already documented in the record 2 mark the RC as an exhibit add the RC to the list of exhibits and give the claimant and the representative an opportunity to review the RC and the other proposed exhibits See I 2 528 C Disclosure of New Evidence Before the Hearing and D Disclosure of New Evidence After the Hearing 3 proceed with the actions necessary to issue a decision based on the available evidence and 4 include in the decision a statement about the effect if any of the claimant s failure or refusal on the decision B Claimant With No Apparent Mental Impairment Fails or Refuses to Undergo a CE or Test Initial Entitlement Claims If a claimant with no apparent mental impairment fails or refuses to undergo a scheduled CE or test the State agency will determine the claimant s reason s 1 If the State agency determines that the claimant had a good reason for failing or refusing to undergo the CE or test they will reschedule the CE or test if the claimant is able and willing to undergo the CE or test If the claimant fails or refuses to undergo the second scheduled CE or test the State agency will return the ALJ s request to the HO along with a report of the reason s the claimant gave if any for failing or refusing to undergo the second CE or test 2 If the State agency determines that the claimant did not have a good reason for failing or refusing to undergo the CE or test they will return the ALJ s request to the HO along with a report of the reason s the claimant gave if any for failing or refusing to undergo the CE or test In either of the above situations if the ALJ determines that the claimant had a good reason for failing or refusing to undergo the CE or test the ALJ or HO staff will request the State agency to schedule another CE or test as soon as possible if the claimant is able and willing to undergo the CE or test If the ALJ determines that the claimant did not have a good reason for failing or refusing to undergo the CE or test the ALJ will proceed with the actions necessary to issue a decision based on the available evidence as described above in subsection A C Claimant With an Apparent Mental Impairment Fails or Refuses to Submit Requested Evidence or Undergo a CE or Test Initial Entitlement Claims If a claimant with an apparent mental impairment fails or refuses to submit requested evidence or undergo a requested CE or test the ALJ must consider the effect of the mental impairment when determining whether the claimant had or has a good reason The ALJ or HO staff will proceed with the actions described above in subsection A or subsection B as appropriate In addition the ALJ or HO staff will 1 if the claimant does not have a representative remind the claimant of the right to representation 2 if the claimant has a representative ensure that the representative is aware of the claimant s failure or refusal and of the importance of the claimant s cooperation 3 obtain the needed evidence from other sources if possible NOTE The ALJ may ask an ME to review the evidence in the record and provide an opinion regarding the possible effect of the claimant s mental impairment on his or her failure to provide requested evidence or undergo a requested CE or test See I 2 532 Medical Experts General D Claimant Fails or Refuses to Submit Requested Evidence or Undergo a CE or Test Cessation Cases If a claimant fails or refuses to submit requested evidence or undergo a CE or test in a cessation case the ALJ or the HO staff will proceed with the actions described above in subsections A B or C as appropriate If the ALJ determines that the claimant did not have a good reason for such failure or refusal he or she may find that the claimant s disability or blindness has ceased because of the claimant s failure to cooperate E Determining Whether a Claimant Has Shown a Good Reason for Failing or Refusing to Submit Requested Evidence or Undergo a Requested CE or Test When determining whether a claimant has shown a good reason for failing or refusing to submit requested evidence or undergo a requested CE or test the ALJ should consider the guidelines in 20 CFR 404 911 and 416 1411 which apply when determining whether a claimant has shown good cause for missing a deadline to request review Examples of circumstances where a good reason may exist include but are not limited to the following 1 The claimant was seriously ill and unable to comply with the request 2 There was a death or serious illness in the claimant s immediate family which prevented him or her from complying with the request 3 The claimant did not receive the request to submit evidence or appear for a CE or test or the claimant received the request untimely 4 The request to submit evidence or appear for a CE or test contained incorrect or incomplete information about when and where to submit the evidence or appear for the CE or test F Documentation If an ALJ finds that a claimant did not have a good reason for failing to submit requested evidence or undergo a requested CE or test he or she will mark the RCs and other documents which support that finding as proposed exhibits and give the claimant and the representative if any an opportunity to review and comment on the proposed exhibits See I 2 528 C Disclosure of New Evidence Before the Hearing and I 2 528 D Disclosure of New Evidence After the Hearing HALLEX I 2 526 Office of Hearings and Appeals Social Security Administration S S A Department of Health and Human Services Volume I Division II Administrative Law Judge Hearings Subject Securing Evidence Chapter I 2 500 June 30 1994 Current through March 1997 I 2 526 STATE AGENCY PHYSICIAN DETERMINES THAT A REQUESTED TEST WOULD INVOLVE SIGNIFICANT RISK REVISED 04 94 If a State agency determines based on a State agency review physician s assessment or consultant s opinion that a requested test should not be performed because it would involve significant risk to the claimant the State agency will notify the ALJ or the HO staff contact person of the determination and the reason s for it The HO staff will take the following actions Prepare an RC to document the reason s for the State agency s determination unless the State agency provided a written statement of the reasons Mark the RC or the State agency s written statement as a proposed exhibit add it to the list of exhibits and give the claimant and the representative if any an opportunity to review and comment on the proposed exhibits See I 2 528 C Disclosure of New Evidence Before the Hearing and I 2 578 D Disclosure of New Evidence After the Hearing Obtain the needed information through other means if possible NOTE If a consultative physician or psychologist contacts the HO directly about an ALJ s request through the State agency for a CE or test the ALJ or the HO staff will ask the consultative physician or psychologist to contact the State agency HALLEX I 2 528 Office of Hearings and Appeals Social Security Administration S S A Department of Health and Human Services Volume I Division II Administrative Law Judge Hearings Subject Securing Evidence Chapter I 2 500 June 30 1994 Current through March 1997 I 2 528 ACTION FOLLOWING RECEIPT OF REQUESTED EVIDENCE REVISED 04 94 When requested evidence is received the ALJ or the HO staff under the ALJ s direction must review the evidence for completeness and responsiveness A Requested Evidence Is Complete and Responsive If the requested evidence is complete and responsive the HO staff will 1 mark the new evidence as an exhibit See I 2 115 Exhibits 2 prepare and mark the professional qualifications of each source as an exhibit See I 2 130 Professional Qualifications of Physicians and Mental Health Professionals and 3 review the total record for sufficiency of the evidence and any material conflicts B Requested Evidence Is Incomplete or Unresponsive 1 If evidence requested through a State agency is incomplete or unresponsive the HO staff will follow the procedures in I 2 514 C 3 Problem With the State Agency s Response 2 If evidence requested directly from a treating or other source is incomplete or unresponsive contact the source again either directly or through the claimant or the representative to determine if additional evidence is available Request assistance from the State agency if necessary C Disclosure of New Evidence Before the Hearing If an ALJ receives new evidence before the hearing from a source other than the claimant and the ALJ proposes to enter the evidence into the record as an exhibit the ALJ must give the claimant and the claimant s representative if any an opportunity to review the evidence before the hearing See I 2 135 Examination of the Proposed Exhibits and Other Claim File Material If the new evidence indicates that the claimant has a serious illness of which the claimant and the treating physician may not be aware the ALJ will exercise appropriate discretion to avoid adversely affecting the claimant s medical situation while proceeding with the actions necessary to protect the claimant s right to due process D Disclosure of New Evidence After the Hearing If an ALJ receives new evidence after the hearing from a source other than the claimant and the ALJ proposes to enter the evidence into the record as an exhibit the ALJ must give the claimant and the claimant s representative the opportunity to review and comment on the evidence and request a supplemental hearing unless 1 the claimant or the representative knowingly waived the right to review the evidence and to appear at a supplemental hearing or 2 the ALJ is prepared to issue a fully favorable decision See I 2 730 Proffer Procedures through I 2 735 Entering Posthearing Evidence I 2 590 Samples Sample 2 Letter to Representative Enclosing Copy of New Evidence and I 2 590 Samples Sample 3 Letter to Unrepresented Claimant Enclosing Copy of New Evidence HALLEX I 2 530 Office of Hearings and Appeals Social Security Administration S S A Department of Health and Human Services Volume I Division II Administrative Law Judge Hearings Subject Securing Evidence Chapter I 2 500 June 30 1994 Current through March 1997 I 2 530 MEDICAL OR VOCATIONAL EXPERT OPINION GENERAL REVISED 04 94 Before scheduling a hearing the ALJ or the HO staff under the ALJ s direction must review all of the evidence to determine if additional evidence is needed to inquire fully into the matters at issue If this review indicates that ME or VE opinion is needed the ALJ must obtain the opinion by requesting an ME or VE to either testify at a hearing or provide answers to written interrogatories The preferred method for obtaining ME or VE opinion is through live testimony at a hearing A hearing provides the claimant and the representative if any the opportunity to ask the ME or VE any questions material to the issues including questions that arise for the first time during the hearing Interrogatories are more limiting in that it is difficult to anticipate all questions that might arise If a claimant has waived his or her right to a hearing and requested an on the record decision or has indicated a preference for written interrogatories rather than a supplemental hearing but the ALJ believes that ME or VE opinion is needed the ALJ should carefully consider whether the claimant s personal appearance and testimony are essential to decide the case The ALJ may schedule a hearing or supplemental hearing notwithstanding the claimant s waiver if he or she decides that the claimant s personal appearance and testimony are essential See I 2 145 F Waiver of the Right to Appear at the Hearing The ALJ may utilize interrogatories if he or she decides that personal appearance and testimony are not essential and that interrogatories will provide a full inquiry into the matters at issue See I 2 542 Obtaining Medical Expert Opinion Through Interrogatories and I 2 557 Obtaining Vocational Expert Opinion Through Interrogatories NOTE The ALJ must make every effort to obtain all essential documentary evidence early enough to allow the ME or VE sufficient time to consider the evidence before he or she responds to questions at a hearing or answers written interrogatories HALLEX I 2 531 Office of Hearings and Appeals Social Security Administration S S A Department of Health and Human Services Volume I Division II Administrative Law Judge Hearings Subject Securing Evidence Chapter I 2 500 June 30 1994 Current through March 1997 I 2 531 BLANKET PURCHASE AGREEMENTS REVISED 04 94 Each RO maintains a roster of MEs and VEs who have agreed to provide impartial expert opinion pursuant to a Blanket Purchase Agreement BPA Every ME or VE who testifies at a Social Security hearing or provides a written response to an interrogatory must be covered under a BPA unless a medical specialty not represented on the RO s ME roster is needed or other extenuating circumstance requires the one time purchase of an ME s or VE s services The same terms and conditions which apply to an ME or VE providing services pursuant to a BPA apply also to an ME or VE providing services without a BPA See I 2 561 Use of Dually Qualified Vocational and Medical Experts HALLEX I 2 532 Office of Hearings and Appeals Social Security Administration S S A Department of Health and Human Services Volume I Division II Administrative Law Judge Hearings Subject Securing Evidence Chapter I 2 500 June 30 1994 Current through March 1997 I 2 532 MEDICAL EXPERTS GENERAL REVISED 04 94 MEs are physicians and mental health professionals who provide impartial expert opinion at the hearing level on claims under title II title XVI and title XVIII of the Social Security Act or on claims for Black Lung Benefits by either testifying at a hearing or responding in writing to interrogatories The need for ME opinion is left to the ALJ s discretion The primary reason an ALJ may obtain ME opinion is to gain information which will help him or her evaluate the medical evidence in a case and determine whether the claimant is disabled or blind An ALJ may also obtain ME opinion to help him or her determine whether services provided to a claimant in a hospital or skilled nursing facility are covered under the Medicare program When ME testimony is needed use of an ME will result in a more complete record to support the ALJ s conclusion on the ultimate issue of disability or for example the need for medical services provided Before requesting an ME to appear at a hearing or respond to interrogatories the ALJ should review all of the evidence to determine if it adequately documents the course of the claimant s illness and treatment identify and obtain any additional evidence that is needed and develop a list of questions to ask the ME All necessary development should be completed before requesting the ME to appear at a hearing See I 2 590 Samples Sample 4 Interrogatories to Medical Expert for examples of questions which might be appropriate The ALJ may use an ME before during or after the hearing The ALJ may not use an ME who has treated the claimant in the past The ALJ may not use an ME who has examined the claimant on a consultative basis The ALJ must avoid any off the record discussion with the ME If such a discussion occurs the ALJ must summarize the discussion on the record at the hearing or enter a written summary of it into the record as an exhibit The ALJ may not ask an ME to provide an opinion on vocational matters even if the ME is a certified VE An ME s opinion must be based on the medical findings and signs not just the claimant s symptoms The weight an ALJ gives to an ME s opinion depends upon the extent to which the opinion is supported by the medical signs and findings and is consistent with the other evidence of record An ME s opinion is not binding on the ALJ HALLEX I 2 534 Office of Hearings and Appeals Social Security Administration S S A Department of Health and Human Services Volume I Division II Administrative Law Judge Hearings Subject Securing Evidence Chapter I 2 500 June 30 1994 Current through March 1997 I 2 534 WHEN TO OBTAIN MEDICAL EXPERT OPINION REVISED 06 94 A When an ALJ May Need to Obtain ME Opinion An ALJ may need to obtain an ME s opinion either in testimony at a hearing or in responses to written interrogatories when the ALJ is determining whether a claimant s impairment s meets or equals a listed impairment s the ALJ is determining the usual dosage and effect of drugs and other forms of therapy the ALJ is assessing a claimant s failure to follow prescribed treatment the ALJ is determining the degree of severity of a claimant s mental impairment and is preparing a PRTF note the ALJ not the ME must actually complete the PRTF the claimant or the claimant s representative has requested the presence of an ME at the hearing and the ALJ agrees that ME testimony is necessary the ALJ has reasonable doubt about the adequacy of the medical record in a case and believes that an ME may be able to suggest additional relevant evidence the medical evidence is conflicting or confusing and the ALJ believes an ME may be able to clarify and explain the evidence the significance of clinical or laboratory findings in the record is not clear and the ALJ believes an ME may be able to explain the findings and assist the ALJ in assessing their clinical significance the ALJ is determining the claimant s residual functional capacity e g the ALJ may ask the ME to explain or clarify the claimant s functional limitations and abilities as established by the medical evidence of record the ALJ has a question about the etiology of a disease or disease process See I 2 539 D Obtaining ME Opinion to Assist in Understanding a Disease Process and how it may affect the claimant s ability to engage in work activities at pertinent points in time e g the ALJ may ask the ME to explain the nature of an impairment and identify any medically contraindicated activities or the ALJ desires expert medical opinion regarding the onset of an impairment B When the ALJ Must Obtain ME Opinion The ALJ must obtain an ME s opinion either in testimony at a hearing or in responses to written interrogatories when the Appeals Council or a court so orders In addition the ALJ must use an ME to evaluate and interpret background medical test data See I 2 514 D Medical Test Data HALLEX I 2 536 Office of Hearings and Appeals Social Security Administration S S A Department of Health and Human Services Volume I Division II Administrative Law Judge Hearings Subject Securing Evidence Chapter I 2 500 June 30 1994 Current through March 1997 I 2 536 SELECTING A MEDICAL EXPERT REVISED 04 94 A General All ALJ contacts with an ME about a case must be in writing or at an open hearing and all correspondence with the ME must be made part of the record When an ALJ determines that ME testimony is needed the ALJ will inform the claimant and the representative by placing a statement to that effect in the REMARKS section of the Notice of Hearing See I 2 315 Notice of Hearing The ALJ or designee will before the hearing furnish the ME with copies of the pertinent medical reports and written lay evidence If additional medical evidence is received at the hearing the ALJ will provide it to the ME for review before the ME testifies The ALJ or designee must select the ME whose expertise is most appropriate to the claimant s diagnosed impairment s An ALJ may never permit an ME to perform an examination of a claimant B HO Staff Recommends Use of ME Before scheduling a hearing the ALJ or designee must thoroughly review the case to determine what if any additional evidence is needed to decide the case If a designee performs the review and believes that ME opinion is necessary the designee will make that recommendation to the ALJ and will also recommend the medical specialty of the ME C ALJ Determines that ME Opinion is Needed If the ALJ determines or agrees that ME opinion is needed the ALJ will decide 1 the medical specialty of the ME and 2 the manner in which to receive the ME opinion i e whether to receive the opinion in testimony at the hearing or in response to written interrogatories See I 2 530 Medical or Vocational Expert Opinion General D Selection of ME from RO Roster Each RO maintains a roster of MEs who have agreed to provide impartial expert opinion pursuant to a BPA with the Office of Hearings and Appeals OHA See I 2 531 Blanket Purchase Agreements The ALJ or designee must select an ME from the roster in rotation to the extent possible i e when an ALJ selects an ME with a particular medical specialty from the roster to provide expert opinion in a case that ME will go to the bottom of the roster and will not be called again by that ALJ or any other ALJ in the HO until all other MEs on the roster with that medical specialty are called If an ALJ decides to use an ME from the roster the HO staff will assign a purchase order number and complete a Form HA 590 Contractor s Invoice E Selection of ME Not on RO Roster An ALJ may use an ME who does not have a BPA with OHA if the ALJ requires a particular medical specialty not represented on the RO roster or there are other extenuating circumstances which require the one time purchase of such ME s services The same terms and conditions which apply to an ME providing services pursuant to a BPA also apply to an ME providing services without a BPA Authorize payment to an ME without a BPA by completing Optional Form 347 Order of Supplies or Services HALLEX I 2 538 Office of Hearings and Appeals Social Security Administration S S A Department of Health and Human Services Volume I Division II Administrative Law Judge Hearings Subject Securing Evidence Chapter I 2 500 June 30 1994 Current through March 1997 I 2 538 OBTAINING MEDICAL EXPERT TESTIMONY REVISED 04 94 A Completion of Form HA L9 To request an ME to testify at a hearing the ALJ or HO staff will complete Form HA L9 Letter to Medical Expert Requesting Attendance at Hearing The HO staff must modify the form as necessary to adapt it to the specific case and include 1 all identifying information 2 the issues to be considered and 3 the name and telephone number of an HO staff person the ME may contact if he or she has any questions or problems B Distribution of Form HA L9 Distribute Form HA L9 as follows 1 Send the original to the ME along with any necessary enclosures See I 2 538 C below 2 Send the white copies to the claimant and the representative along with a copy of the proposed exhibits 3 Place the green copy in the CF 4 Place the pink copy in the HO file C Providing the ME with Relevant Evidence The ALJ must provide the ME with relevant evidence that will assist the ME in providing the medical opinion This evidence must include 1 photocopies of the pertinent evidence arranged in chronological order 2 a copy of the ME s professional qualifications for verification NOTE Do not include the professional qualifications of other sources 3 a list of the proposed exhibits using Form HA 540 Exhibits List 4 copies of all prior correspondence between the ALJ and the ME if any 5 a transcript or summary of any medical testimony provided in a prior hearing on the same case and 6 a copy of pertinent parts of the ME orientation package if there is no BPA with the ME HALLEX I 2 539 Office of Hearings and Appeals Social Security Administration S S A Department of Health and Human Services Volume I Division II Administrative Law Judge Hearings Subject Securing Evidence Chapter I 2 500 June 30 1994 Current through March 1997 I 2 539 THE MEDICAL EXPERT S TESTIMONY REVISED 04 94 A General During the opening statement the ALJ must explain why ME testimony is necessary The ME may attend the entire hearing but this is not required Before the ME testifies the ALJ must ensure on the record that the ME has examined all medical evidence of record ensure that the record contains an accurate statement of the ME s professional qualifications give the claimant and the representative an opportunity to ask the ME questions about his or her professional qualifications and Summarize the opening statement or relevant testimony on the record if the ME was not present NOTE ALL ME testimony must be on the record The ALJ should take care to elicit useful and objective testimony from the ME For examples of the types of questions the ALJ might ask see I 2 590 Samples Sample 4 Interrogatories to Medical Expert If the ME s reply to an ALJ s question is ambiguous or overly technical the ALJ must follow up with more specific questions An ALJ must not question an ME about any matter which is not within the ME s area of expertise and responsibility For example the ALJ must not ask an ME about vocational matters or how the ALJ should decide the case If certain ME testimony is based on an assumption the ME or ALJ must clearly describe the assumption on the record If a claimant raises an objection about an ME s opinion the ALJ must rule on the objection and discuss any ruling in the decision B Obtaining ME Opinion on Medical Equivalency In a case requiring a finding on medical equivalency the ALJ must first ask the ME to describe the claimant s disease process The ALJ must refer the ME to the Listing of Impairments Appendix 1 to Subpart P to ensure that the ME is familiar with how the Listings are used Next the ALJ must ask questions to elicit an opinion from the ME about whether the claimant had or has an impairment s which equals the Listing The question of equivalency arises when for listed impairments the signs symptoms and laboratory findings are not identical to those specified for that impairment but are of equivalent severity for unlisted impairments the signs symptoms and laboratory findings are equivalent in severity to those of the most closely related listed impairment and for combined impairments the combination of all signs symptoms and laboratory findings reflect medical equivalency to a listed impairment C Obtaining ME Opinion Which Will Help the ALJ Determine the Claimant s Residual Functional Capacity RFC An ALJ may not ask an ME to decide what a claimant s RFC is or whether a claimant is or is not disabled Such decisions must be made by the ALJ However an ALJ may ask an ME to provide information and opinion s which will help the ALJ decide these issues e g an ALJ may ask an ME to describe the impact of an impairment on the claimant s ability to concentrate remember or cogitate An ALJ also may not ask an ME to decide whether a claimant can work in a competitive work situation or in a particular type of employment e g as a gas station attendant The vocational aspects of a case e g a claimant s non medical reasons for leaving his or her former job vocational difficulties a claimant might experience adjusting to a new job or the adequacy or inadequacy of a claimant s education are not within an ME s area of expertise On the other hand in a mental impairment case an ALJ may ask an ME to comment on the impact of a claimant s impairment on his or her ability to adjust to substantial gainful activity D Obtaining ME Opinion to Assist in Understanding a Disease Process Disease process means the stages of a specific disorder and the functional consequences which can be expected at these stages It includes anticipated laboratory findings and physical limitations that would be expected to occur as the disorder progresses Certain disease processes have characteristic symptoms that may vary from time to time and limit the individual s ability to perform certain functions ME opinion about a disease process will often assist the ALJ in determining a claimant s degree of dysfunction and RFC at a particular time HALLEX I 2 540 Office of Hearings and Appeals Social Security Administration S S A Department of Health and Human Services Volume I Division II Administrative Law Judge Hearings Subject Securing Evidence Chapter I 2 500 June 30 1994 Current through March 1997 I 2 540 OBTAINING MEDICAL EXPERT OPINION AFTER THE HEARING REVISED 04 94 A Identifying the Need for ME Opinion After the Hearing Although these situations occur relatively infrequently the ALJ may identify the need for ME evidence during or after the hearing For example evidence submitted during or after the hearing indicates that the claimant may have an impairment that equals a listed impairment B Obtaining ME Opinion After the Hearing When an ALJ decides to obtain evidence from an ME after the initial hearing the ALJ must determine the most appropriate method to obtain this evidence consistent with the claimant s rights with respect to posthearing evidence See I 2 700 Posthearing Actions Live testimony with opportunity to orally question the ME is the preferred method for obtaining ME opinion but written interrogatories may be used See I 2 530 Medical or Vocational Expert Opinion General NOTE Regardless of the method used or whether the claimant is represented the ALJ must question the ME in lay terms and to the extent possible elicit responses in terms that the claimant can understand C Determining the Most Appropriate Method to Obtain ME Opinion After the Hearing Some of the factors that the ALJ must weigh in determining whether it would be more appropriate to obtain ME opinion in testimony at a supplemental hearing or in responses to written interrogatories are 1 whether and when an ME is available to testify in person 2 the feasibility of scheduling a hearing at a remote hearing site and the availability of an ME at that location and the potential for delays if the ALJ schedules a supplemental hearing HALLEX I 2 542 Office of Hearings and Appeals Social Security Administration S S A Department of Health and Human Services Volume I Division II Administrative Law Judge Hearings Subject Securing Evidence Chapter I 2 500 June 30 1994 Current through March 1997 I 2 542 OBTAINING MEDICAL EXPERT OPINION THROUGH INTERROGATORIES REVISED 04 94 A General Live testimony with opportunity to question the ME is the preferred method for obtaining ME opinion but written interrogatories may be used See I 2 530 Medical or Vocational Expert Opinion General Written interrogatories are often used when an ALJ receives posthearing evidence but can be used at other times in the hearing process The claimant or representative may ask the ALJ to obtain interrogatories or the ALJ may decide to use them on his or her own initiative B Preparing Interrogatories When preparing interrogatories the ALJ must 1 phrase each question in a way that will not suggest any specific conclusion but will elicit a clear and complete response that can ultimately be expressed to the extent possible in lay terms See I 2 590 Sample 4 Interrogatories to Medical Expert and 2 leave sufficient space between the questions for the answers C Determining Whether the Claimant or Representative Has Objections 1 General Before releasing interrogatories to the ME the ALJ must transmit the proposed interrogatories to the representative with a copy to the claimant or to the claimant if not represented to determine if they object to the use of interrogatories in general object to any particular interrogatory or wish to propose other interrogatories See I 2 590 Samples Sample 8 Letter to Transmit Interrogatories to Claimant or Representative 2 Claimant or Representative Objects to Use of Interrogatories in General If the claimant or representative objects to the use of interrogatories in general the ALJ must consider the claimant s or representative s reason s for believing that the ALJ cannot establish facts relevant to the issues in the case by means of written interrogatories and rule on the objection Factors that the ALJ may consider in determining whether to grant a claimant s or representative s request to question an ME at a hearing or supplemental hearing include but are not limited to the preferability of live testimony as the method for obtaining expert opinion evidence See I 2 530 Medical or Vocational Expert Opinion General whether a hearing is needed to address the claimant s or representative s allegations of bias on the part of the ME and whether a hearing is needed to address questions about the ME s qualifications 3 Claimant or Representative Objects to a Particular Interrogatory or Proposes Other Interrogatories If a claimant or representative objects to a particular interrogatory or proposes other interrogatories the ALJ must rule on the objection or proposal Factors that the ALJ may consider in determining whether to revise or expand the interrogatories include but are not limited to whether the claimant s or representative s comments or proposed additions are material to the issues in the case and are based on the evidence of record 4 ALJ Rules Against the Claimant s or Representative s Objection s or Proposal s If the

    Original URL path: http://www.severe.net/hallex2-5.html (2016-05-01)
    Open archived version from archive