I-2-5-1.Evidence — General

Last Update: 5/1/17 (Transmittal I-2-198)

A claimant must inform the Social Security Administration (SSA) about or submit to SSA all evidence, in its entirety, known to him or her that relates to whether or not he or she is blind or disabled. See 20 CFR 404.1512 and 416.912. If a claimant has a representative, then the representative must help the claimant obtain the information or evidence that the claimant must submit. See 20 CFR 404.1740(b)(1) and 416.1540(b)(1). As set forth in our regulations, we will assist claimants in developing the record when appropriate. See 20 CFR 404.1512(b) and 416.912(b).

NOTE 1:

Evidence generally does not include a representative's analysis of the claim or oral or written communications between a claimant and his or her representative that are subject to the attorney-client privilege, or that would be subject to the attorney-client privilege if a non-attorney representative was an attorney. 20 CFR 404.1513(b) and 416.913(b).

NOTE 2:

If a representative has a pattern of not submitting evidence that relates to the claim, or if the claimants of a particular representative develop a pattern of not submitting evidence to us or not informing us about evidence that relates to their claims, an administrative law judge (ALJ) will consider whether circumstances warrant a referral to the Office of the General Counsel (OGC) as a possible violation of our rules. See Hearings, Appeals, and Litigation Law (HALLEX) manual I-1-1-50 for instructions on making referrals to OGC.

At the hearings level, a claimant generally must inform SSA about or submit evidence, as required in 20 CFR 404.1512 and 416.912, no later than five business days before the date of the scheduled hearing. If the claimant informs the agency about or submits evidence less than five business days before the date of the scheduled hearing, at, or after the hearing, the ALJ may decline to obtain or consider the evidence, unless the circumstances in 20 CFR 404.935(b) and 416.1435(b) apply (see HALLEX I-2-6-58 and I-2-6-59). To determine whether the circumstances in 20 CFR 404.935(b) and 416.1435(b) apply, see HALLEX I-2-6-59 B.

NOTE 3:

A business day is any weekday excluding Federal holidays. The business day ends after 11:59PM in the time zone where the hearing office (HO) servicing the claimant's current address is located.

If a claimant informs SSA about evidence, the ALJ will generally determine whether to obtain the evidence using the procedures in HALLEX I-2-5-13. If a claimant submits evidence to SSA, the ALJ will generally determine whether to consider the evidence using the procedures in HALLEX I-2-6-58 and I-2-6-59.

NOTE 4:

In title XVI cases other than those based on an application for benefits (e.g., age 18 redeterminations, continuing disability reviews, and terminations), the ALJ will accept any evidence submitted on or before the date of the hearing decision. See 20 CFR 416.1435(c).

An ALJ may also decide that he or she needs additional medical or non-medical evidence to make a proper decision in a case. In this circumstance, the ALJ will make all reasonable attempts to fully and fairly develop the record. The ALJ, or HO staff, will add to the record and exhibit documentation of all attempts to obtain evidence.

In addition, an ALJ may decide that witnesses are needed to fully and fairly evaluate the issues in a case. The ALJ or HO staff will schedule appropriate witnesses for the hearing or solicit interrogatories from sources, experts, or other relevant persons. The ALJ may issue a subpoena if a witness indicates he or she will not appear voluntarily or if the witness refuses to produce requested evidence, and the witness's testimony or evidence is reasonably necessary for the full presentation of the case. See 20 CFR 404.950(d) and 416.1450(d). See also HALLEX I-2-5-78 and I-2-5-80.

If an ALJ receives additional evidence after the hearing from a source other than the claimant or the appointed representative, and the ALJ proposes to admit the evidence into the record, the ALJ will proffer the evidence using the instructions in HALLEX I-2-7-1. The ALJ will make a decision based on the evidence in the record, including evidence the ALJ has obtained directly.