Background

This transmittal amends Hearings, Appeals and Litigation Law (HALLEX) manual chapter I-2-6 to clarify the policies for the consideration of evidence at the hearing level based on the final rule published in the Federal Register at 81 FR 90987. This new rule establishes nationally consistent procedures for case processing and removes the regulations in 20 CFR Part 405.

Explanation of Content and Changes

I-2-6-1 – We remove a reference to the regulations in 20 CFR Part 405 and make a minor editorial change.

I-2-6-15 – We update the instructions in A.3. to summarize the claimant's general duty to inform Social Security (SSA) about or submit written evidence no later than five business days before the date of the scheduled hearing and to provide references to the appropriate procedures. We also make minor editorial changes.

I-2-6-34 – We remove the citations to the regulations before the introductory paragraph because we cite references throughout the section that discuss and implement the regulations. We add references to the instructions in HALLEX I-2-6-58 and I-2-6-69 about admitting evidence into the record. We remove the Note and incorporate a reference about video teleconference procedures in the body of the section.

I-2-6-58 – We updated regulatory citations in both subsections A and C. In subsection A, we clarify that hearing office staff will add all information received into the claim(s) file. We explain that if a claimant submits evidence less than five business days before the date of the scheduled hearing, or after the hearing, the ALJ generally may decline to consider that evidence unless the circumstances in 20 CFR 404.935(b) and 416.435(b) apply. We explain that an ALJ will use the procedures in HALLEX I-2-6-59 to determine whether the circumstances in 20 CFR 404.935(b) and 416.435(b) apply. We also how the new rule affects cases involving title XVI age 18 redeterminations, continuing disability reviews, and terminations. We retitle subsection C to more accurately reflect the updated content, and we add references to the revised regulations. We also add a Note to explain that if a claimant or appointed representative informs an ALJ abut evidence at least five business days before the date of the scheduled hearing, the ALJ will follow the procedures in HALLEX I-2-5-13 and will consider the evidence regardless of whether the circumstances in 20 CFR 404.935(b) and 416.435(b) apply. We make minor editorial and formatting changes. We remove the information in former subsections D and E because we incorporate that information in new HALLEX I-2-6-59.

I-2-6-59 – We add this new section to include instructions for evidence submitted less than five days before the date of the scheduled hearing or after the hearing. In subsection A, we incorporate and update the information formerly in HALLEX I-2-6-58 D. We provide background information about admitting evidence into the record and summarize the claimant's general duty, under the revised regulations, to inform the agency about or submit evidence at least five business days before the scheduled hearing. We also explain that the procedures in HALLEX I-2-6-58 apply if the case involves a title XVI claim that is not based on an application for benefits. In subsection B, we incorporate and update information from former HALLEX I-2-6-58 E.1. We provide instructions for determining whether the circumstances in 20 CFR 404.935(b) and 416.435(b) apply. We also add examples that clarify when the ALJ will find an unusual, unexpected, or unavoidable circumstance for missing the deadline exists. In subsection C, we incorporate and update the information in former HALLEX I-2-6-58 E.2. We explain that if an ALJ finds that the circumstances in 20 CFR 404.935(b) and 416.435(b) apply, the ALJ will accept untimely evidence into the record and mark the evidence as an exhibit. We also explain that if an ALJ does not find that the circumstances in 20 CFR 404.935(b) and 416.435(b) apply, the ALJ will not exhibit the evidence. In addition, we clarify that an ALJ will identify evidence that was not exhibited and explain why it was not exhibited or considered in his or her decision.

I-2-6-76 – We add the regulatory requirement that if a claimant or appointed representative intends to submit a written statement before the hearing, he or she must provide a copy of the written statement to each party no later than five business days before the date set for hearing, unless the circumstances in 20 CFR 404.935(b) and 416.435(b) apply. We add a reference to the definition of “business day” and explain that an ALJ will apply the procedures in HALLEX I-2-6-59 for determining whether the circumstances in 20 CFR 404.935(b) and 416.435(b) apply.

I-2-6-78 – We clarify that an ALJ will consider whether to grant an extension of time for a claimant or his or her representative to submit additional evidence after the hearing using the procedures in HALLEX I-2-7-20 A.

I-2-6-97 – We change the language in the sample form to state that any subsequent hearing will be rescheduled at least 75 days from the day the postponement is requested.

Date: May 1, 2017