Last Update: 9/2/05 (Transmittal I-2-64)
Sections 205(b) and 1631(c) of the Social Security Act provides that the 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.)
What constitutes evidence is defined by 20 CFR §§ 404.1512(b) and 416.912(b). 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.
ALJs have a duty to ensure that the administrative record is fully and fairly developed. At times, attempts to obtain evidence will not be successful. All attempts to obtain the evidence should be marked as exhibits by HO staff to document that the ALJ has attempted to discharge his or her duty. Without such documentation, further reviewers could conclude that the ALJ simply did not attempt to obtain the evidence rather than finding that the ALJ fulfilled his or her duty and was unsuccessful in obtaining the evidence. See 20 CFR §§ 404.1512(d), 416.912(d).
When evidence is received, the ALJ must decide whether to admit it into the record as an exhibit, and the ALJ must also resolve any conflicts in the evidence. If the ALJ does not admit into the record any evidence, the ALJ shall identify the evidence that is not being admitted and state the basis for not admitting the evidence. The decision of the ALJ regarding not admitting evidence can be made on the record at the beginning of the hearing or by a written ruling that shall be made an exhibit in the administrative record.