Last Update: 9/28/05 (Transmittal I-2-68)
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 vocational expert (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 in-person testimony or testimony taken via telephone or video teleconference 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.
The claimant may state objections to a witness appearing by VTC, just as they may state objections to any aspect of the hearing, and they may object to a witness on the basis of perceived bias or lack of expertise. However, a claimant's objection to a witness appearing by VTC will not prevent use of VTC for the appearance, unless the ALJ determines that the claimant's objection is based on a circumstance that warrants having the witness appear in person. See I-5-1-16.III.D. – Video Teleconferencing Procedures.
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.
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.
If interrogatories are obtained after the hearing, the ALJ or HO staff must follow the procedures for submitting the interrogatories to the claimant and claimant's representative (if the claimant has a representative) for review in order to object to any questions or to propose additional questions. Unless an exception applies, answers to the interrogatories should be proffered to the claimant and the claimant's representative (if the claimant has a representative). The claimant has the right to request a supplemental hearing or to produce other information which the claimant desires to rebut any of the responses. See I-2-7-30, Proffer Procedures, through I-2-7-35, Entering Posthearing Evidence; I-2-5-91 Sample Letter to Representative Enclosing Copy of New Evidence; I-2-5-92 Sample Letter to Unrepresented Claimant Enclosing Copy of New Evidence.
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 in-person 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-2-1-45 F., Waiver of the Right to Appear at the Hearing; I-2-6-1 Hearings – General, for further discussion of the requirements for a Waiver of the Right to Appear at the Hearing.) If the ALJ decides that the claimant's personal appearance and testimony are not essential, the ALJ may schedule a hearing or supplemental hearing to obtain in-person testimony from a VE or ME. The ALJ should provide notice to the claimant of such hearing informing the claimant of his or her right to attend the hearing but their attendance is not required.