I-2-6-58.Admitting Evidence Submitted At Least Five Business Days Before the Hearing

A. General

Subject to the limitations for accepting evidence in 20 CFR 404.935 and 416.1435, an administrative law judge (ALJ) will generally admit into the record any evidence that the ALJ determines is material to the issues in the case. Evidence is material if it is relevant, i.e., involves or is directly related to issues being adjudicated.

The following are examples of evidence that may be material to a claim for disability:

• Evidence of work activity during the relevant work period, as defined in 20 CFR 404.1560(b)(1) and 416.960(b)(1);

• Evidence of the existence of a severe impairment;

• Evidence dated within 12 months of the alleged onset date under a title II application for disability insurance benefits;

• Evidence dated on or after the application date or protective filing date of a title XVI application claiming disability; and

• Evidence dated within a time-period covered by a prior application that may be subject to reopening. For reopening instructions, see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-9-20.

When the claimant or appointed representative submits evidence, hearing office (HO) staff will place the evidence in the claim(s) file. While HO staff initially marks and lists proposed exhibits (see HALLEX I-2-1-15 and I-2-1-20), the ALJ makes the final decision on the information admitted into the record. The ALJ may admit information into the record, even if it would not be admissible in court under the rules of evidence.

If a claimant or appointed representative 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 consider that evidence unless the circumstances in 20 CFR 404.935(b) and 416.1435(b) apply. For the definition of business day, see HALLEX I-2-5-1 NOTE 3. To determine whether the circumstances in 20 CFR 404.935(b) and 416.1435(b) apply, an ALJ will use the procedures in HALLEX I-2-6-59.

However, in title XVI cases other than those based on an application for benefits (e.g., age 18 redeterminations, continuing disability reviews, and terminations), an ALJ will accept any evidence submitted on or before the date of the hearing decision. See 20 CFR 416.1435(c). For all other title XVI cases, an ALJ will use the procedures referenced in this section to admit evidence into the record.

When a claimant or appointed representative informs the agency about or submits evidence less than five days before the hearing, at, or after the hearing, and the ALJ finds that the circumstances in 20 CFR 404.935(b) and 416.1435(b) do not apply, the ALJ will identify the evidence and explain their reason for not considering it. The ALJ can provide these reasons on the record at the hearing, in a written ruling that the ALJ exhibits, or in the ALJ's decision.

B. Prior ALJ Decision

If there was a prior ALJ decision, the ALJ must associate the prior ALJ decision with the current claim(s) file. This action is especially critical to comply with the following Acquiescence Rulings (AR):

• Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia, West Virginia): AR 00-1(4), Albright v. Commissioner of the Social Security Administration, 174 F.3d 473 (4th Cir. 1999) (Interpreting Lively v. Secretary of Health and Human Services)—Effect of Prior Disability Findings on Adjudication of a Subsequent Disability Claim—Titles II and XVI of the Social Security Act.

• Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee): AR 98-3(6), Dennard v. Secretary of Health and Human Services, 907 F.2d 598 (6th Cir. 1990)—Effect of A Prior Finding of the Demands of Past Work on Adjudication of a Subsequent Disability Claim Arising Under the Same Title of the Social Security Act—Titles II and XVI of the Social Security Act, and AR 98-4(6), Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997)—Effect of Prior Findings on Adjudication of a Subsequent Disability Claim Arising Under the Same Title of the Social Security Act—Titles II and XVI of the Social Security Act.

• Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington): AR 97-4(9), Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988) —Effect of a Prior Final Decision That a Claimant is Not Disabled, And of Findings Contained Therein, On Adjudication of a Subsequent Disability Claim Arising Under the Same Title of the Social Security Act—Titles II and XVI of the Social Security Act.

For information about how an ALJ determines what evidence to include from a prior file and whether to exhibit the information, see HALLEX I-2-1-13.

C. Admitting Evidence Procedures

Subject to the limitations for accepting evidence in 20 CFR 404.935 and 416.1435, an ALJ will generally admit into the record any information that the ALJ determines is material to the issues in the case.

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

• Asking the claimant (or appointed representative, if any) whether they had an opportunity to examine the proposed exhibits;

• Asking the claimant (or appointed representative, if any) if there are any objections to admitting the proposed exhibits into the record; and

• Ruling on any objections to the proposed exhibits. See HALLEX I-2-6-34.

Whenever possible, the ALJ will rule on objections on the record at the beginning of the hearing. However, if circumstances warrant a ruling on an objection in writing, the ALJ may rule on the objections in a post-hearing order or as part of the written decision issued by the ALJ. If the ALJ issues the ruling in an independent document, the ALJ will exhibit the document and mail a copy to the claimant and appointed representative, if any.