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 ADMINISTRATIVE LAW JUDGE

The new rules contain many changes regarding the submission of evidence to the Administrative Law Judge. The rules set a goal for ALJs to set a hearing date within 90 days of an appeal. The ALJ must provide 75 days notice before the hearing. After receiving a hearing notice, the claimant has 30 days to object to the time or place of the hearing. Objections to issues in the hearing notice must be filed at least 5 business days before the hearing.

Of paramount importance to advocates are the procedural changes for submitting evidence for an ALJ hearing. The new rules add new deadlines for evidence submission (the current regulations allow evidence submission anytime, including at the hearing). While the final version of the rules offer a more generous time table for a claimant to submit evidence compared to prior versions of the rules, there is still some concern whether the rules are consistent with the claimants right to a hearing with a decision based on evidence adduced at the hearing, 42 U.S.C. 405(b), or whether the deadlines are realistic considering the fact that representation is often obtained just before an ALJ hearing, or sometimes even after the hearing. The following table lists the circumstances in which an ALJ must accept and consider new evidence:

Deadlines and Circumstances for Submitting Evidence to the
Administrative Law Judge:

* - Good Cause means the claimant shows that: 1) SSA action misled the claimant; or 2) the claimant has a physical, educational, or linguistic limitation that prevented earlier submission of the evidence; or 3) some other unusual unexpected, or unavoidable circumstance beyond the claimants control prevented earlier submission. Examples of circumstances satisfying 3) can be found in 20 C.F.R. 405.20(b) (ex. (b)(4): You were trying very hard to find necessary information to support your claim but did not find the information within the stated time period)

The rules no longer require claimants to submit adverse evidence. The ALJ also has the discretion, at the hearing, to hold the record open for new evidence if there is outstanding evidence or if the claimant is to undergo additional medical evaluation.

Hearing before an administrative law judge—general
(a) This subpart explains what to do if you are dissatisfied with a decision by a Federal reviewing official. In it, we describe how you may ask for a hearing before an administrative law judge, and what procedures SSA will follow when you ask for a hearing.
(b) The Commissioner will appoint an administrative law judge to conduct the hearing. If circumstances warrant after making the appointment (for example, if the administrative law judge becomes unavailable), the Commissioner may assign your claim to another administrative law judge.
(c) You may examine the evidence used in making the Federal reviewing official's decision, submit evidence, appear at the hearing, and present and question witnesses. The administrative law judge may ask you questions and will issue a decision based on the hearing record. If you waive your right to appear at the hearing, the administrative law judge will make a decision based on the evidence that is in the file, any new evidence that is timely submitted, and any evidence that the administrative law judge obtains.

Availability of a hearing before an administrative law judge
You may request a hearing before an administrative law judge if you are dissatisfied with the Federal reviewing official's decision on your disability claim.

How to request a hearing before an administrative law judge
(a) Written request. You must request a hearing by filing a written request. You should include in your request—
(1) Your name and social security number,
(2) If you have filed a claim for benefits based on disability under title II of the Act under an account other than your own, the name and social security number of the wage earner under whose account you are filing,
(3) The specific reasons you disagree with the decision made by the Federal reviewing official,
(4) A statement of the medically determinable impairment(s) that you believe prevents you from working,
(5) Additional evidence that you have available to you, and
(6) The name and address of your representative, if any.
(b) Time limit for filing request. An administrative law judge will conduct a hearing if you request one in writing no later than 60 days after the date you receive notice of the Federal reviewing official's decision (or within the extended time period if we extend the time as provided in paragraph (d) of this section). The administrative law judge may decide your disability claim without an oral hearing under the circumstances described in §405.340.
(c) Place for filing request. You should submit a written request for a hearing at one of the SSA offices. If you have a disability claim under title II of the Act, you may also file the request at the Veterans Administration Regional Office in the Philippines, or if you have 10 or more years of service, or at least five years of service accruing after December 31, 1995, in the railroad industry, an office of the Railroad Retirement Board.
(d) Extension of time to request a hearing. If you want a hearing before an administrative law judge, but you do not request it timely, you may ask SSA for more time to request a hearing. Your request for an extension of time must be in writing and must give the reasons the request for review was not filed, or cannot be filed, in time. If you show SSA that you have good cause for missing the deadline, they will extend the time period. To determine whether good cause exists, they use the standards explained in §405.20.
(e) Waiver of the right to appear. After you submit your request for a hearing, you may ask the administrative law judge to decide your claim without a hearing, as described in §405.340(b). The administrative law judge may grant the request unless he or she believes that a hearing is necessary. You may withdraw this waiver of your right to appear at a hearing any time before notice of the hearing decision is mailed to you, and SSA will schedule a hearing as soon as practicable.

Time and place for a hearing before an administrative law judge
(a) General. The administrative law judge sets the time and place for the hearing. The administrative law judge will notify you of the time and place of the hearing at least 75 days before the date of the hearing, unless you agree to a shorter notice period. If it is necessary, the administrative law judge may change the time and place of the hearing. If the administrative law judge changes the time and place of the hearing, he or she will send you reasonable notice of the change.
(b) Where SSA holds hearings. They hold hearings in the 50 States, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, the Commonwealth of Puerto Rico, and the United States Virgin Islands.
(c) Determination regarding in-person or video teleconference appearance of witnesses at the hearing. In setting the time and place of the hearing, the administrative law judge will determine whether you or any other person will appear at the hearing in person or by video teleconferencing. If you object to appearing personally by video teleconferencing, SSA will re-schedule the hearing to a time and place at which you may appear in person before the administrative law judge. If you object to any other person appearing by video teleconferencing, the administrative law judge will decide whether to have that person appear in person or by video teleconference. Section 405.350 explains how you and witnesses appear and present evidence at hearings. Except when you object to appearing by video teleconferencing as described below, the administrative law judge will direct that a person's appearance will be conducted by video teleconferencing when:
(1) Video teleconferencing technology is available,
(2) Use of video teleconferencing technology would be more efficient than conducting an examination of a witness in person, and
(3) The administrative law judge does not determine that there is another reason why video teleconferencing should not be used.

Notice of a hearing before an administrative law judge
(a) Issuing the notice. After the administrative law judge sets the time and place of the hearing, SSA will mail notice of the hearing to you at your last known address, or give the notice to you by personal service. They will mail or serve the notice at least 75 days before the date of the hearing, unless you agree to a shorter notice period.
(b) Notice information. The notice of hearing will tell you:
(1) The specific issues to be decided,
(2) That you may designate a person to represent you during the proceedings,
(3) How to request that we change the time or place of your hearing,
(4) That your hearing request may be dismissed if you fail to appear at your scheduled hearing without good reason under §405.20,
(5) Whether your or a witness's appearance will be by video teleconferencing, and
(6) That you must submit all evidence that you wish to have considered at the hearing no later than five business days before the date of the scheduled hearing, unless you show that your circumstances meet the conditions described in §405.331 for missing the deadline.
(c) Acknowledging the notice of hearing. In the notice of hearing, SSA will ask you to return a form to let them know that you received the notice. If you or your representative do(es) not acknowledge receipt of the notice of hearing, SSA will attempt to contact you to see if you received it. If you let them know that you did not receive the notice of hearing, they will send you an amended notice by certified mail.
Objections
(a) Time and Place. (1) If you object to the time or place of your hearing, you must notify the administrative law judge in writing at the earliest possible opportunity before the date set for the hearing, but no later than 30 days after receiving notice of the hearing. You must state the reason(s) for your objection and propose a time and place you want the hearing to be held.
(2) The administrative law judge will consider your reason(s) for requesting the change and the impact of the proposed change on the efficient administration of the hearing process. Factors affecting the impact of the change include, but are not limited to, the effect on the processing of other scheduled hearings, delays which might occur in rescheduling your hearing, and whether SSA previously granted to you any changes in the time or place of your hearing.
(b) Issues. If you believe that the issues contained in the hearing notice are incorrect, you should notify the administrative law judge in writing at the earliest possible opportunity, but must notify him or her no later than five business days before the date set for the hearing. You must state the reason(s) for your objection. The administrative law judge will make a decision on your objection either at the hearing or in writing before the hearing.

Administrative law judge hearing procedures—general
(a) General. A hearing is open only to you and to other persons the administrative law judge considers necessary and proper. The administrative law judge will conduct the proceedings in an orderly and efficient manner. At the hearing, the administrative law judge will look fully into all of the issues raised by your claim, will question you and the other witnesses, and will accept any evidence relating to your claim that you submit in accordance with §405.331.
(b) Conduct of the hearing. The administrative law judge will decide the order in which the evidence will be presented. The administrative law judge may stop the hearing temporarily and continue it at a later date if he or she decides that there is evidence missing from the record that must be obtained before the hearing may continue. At any time before the notice of the decision is sent to you, the administrative law judge may hold a supplemental hearing in order to receive additional evidence, consistent with the procedures described below. If an administrative law judge requires testimony or other evidence from a medical, psychological, or vocational expert in your claim, the Medical and Vocational Expert Unit will provide an appropriate expert who has not had any prior involvement in your claim.
Issues before an administrative law judge
(a) General. The issues before the administrative law judge include all the issues raised by your claim, regardless of whether or not the issues may have already been decided in your favor.
(b) New issues. Any time after receiving the hearing request and before mailing notice of the hearing decision, the administrative law judge may consider a new issue if he or she, before deciding the issue, provides you an opportunity to address it. The administrative law judge or any party may raise a new issue; an issue may be raised even though it arose after the request for a hearing and even though it has not been considered in an initial or reconsidered determination.
(c) Collateral estoppel—issues previously decided. In one of SSA's previous and final determinations or decisions involving you, but arising under a different title of the Act or under the Federal Coal Mine Health and Safety Act, SSA already may have decided a fact that is an issue before the administrative law judge. If this happens, the administrative law judge will not consider the issue again, but will accept the factual finding made in the previous determination or decision, unless he or she has reason to believe that it was wrong, or reopens the previous determination or decision under subpart G of this part.
Prehearing conferences
(a)(1) The administrative law judge, on his or her own initiative or at your request, may decide to conduct a prehearing conference if he or she finds that such a conference would facilitate the hearing or the decision on your claim. A prehearing conference normally will be held by telephone, unless the administrative law judge decides that conducting it in another manner would be more efficient and effective in addressing the issues raised at the conference. SSA will give you reasonable notice of the time, place, and manner of the conference.
(2) At the conference, the administrative law judge may consider matters such as simplifying or amending the issues, obtaining and submitting evidence, and any other matters that may expedite the hearing.
(b) The administrative law judge will have a record of the prehearing conference made.
(c) SSA will summarize in writing the actions taken as a result of the conference, unless the administrative law judge makes a statement on the record at the hearing summarizing them.
(d) If neither you nor the person you designate to act as your representative appears at the prehearing conference, and under §405.380(b), you do not have a good reason for failing to appear, SSA may dismiss the hearing request.

Submitting evidence to an administrative law judge
(a) You should submit with your request for hearing any evidence that you have available to you. Any written evidence that you wish to be considered at the hearing must be submitted no later than five business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider the evidence unless the circumstances described in paragraphs (b) or (c) of this section apply.
(b) If you miss the deadline described in paragraph (a) of this section and you wish to submit evidence during the five business days before the hearing or at the hearing, the administrative law judge will accept the evidence if you show that:
(1) SSA action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from submitting the evidence earlier.
(c) If you miss the deadline described in paragraph (a) of this section and you wish to submit evidence after the hearing and before the hearing decision is issued, the administrative law judge will accept the evidence if you show that there is a reasonable possibility that the evidence, alone or when considered with the other evidence of record, would affect the outcome of your claim, and:
(1) SSA action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from submitting the evidence earlier.

Subpoenas
(a) When it is reasonably necessary for the full presentation of a claim, an administrative law judge may, on his or her own initiative or at your request, issue subpoenas for the appearance and testimony of witnesses and for the production of any documents that are relevant to an issue at the hearing.
(b) To have documents or witnesses subpoenaed, you must file a written request for a subpoena with the administrative law judge at least 10 days before the hearing date. The written request must:
(1) Give the names of the witnesses or documents to be produced;
(2) Describe the address or location of the witnesses or documents with sufficient detail to find them;
(3) State the important facts that the witness or document is expected to show; and
(4) Indicate why these facts could not be shown without that witness or document.
(c) We will pay the cost of issuing the subpoena and pay subpoenaed witnesses the same fees and mileage they would receive if they had been subpoenaed by a Federal district court.
(d) Within five days of receipt of a subpoena, but no later than the date of the hearing, the person against whom the subpoena is directed may ask the administrative law judge to withdraw or limit the scope of the subpoena, setting forth the reasons why the subpoena should be withdrawn or why it should be limited in scope.
(e) Upon failure of any person to comply with a subpoena, the Office of the General Counsel may seek enforcement of the subpoena under section 205(e) of the Act.

Submitting documents
All documents prepared and submitted by you, i.e., not including medical or other evidence that is prepared by persons other than the claimant or his or her representative, should clearly designate the name of the claimant and the last four digits of the claimant's social security number. All such documents must be clear and legible to the fullest extent practicable and delivered or mailed to the administrative law judge within the time frames that he or she prescribes. Documents that are typewritten or produced with word processing software must use type face no smaller than 12 point font.

Prehearing statements
(a) At any time before the hearing begins, you may submit, or the administrative law judge may request that you submit, a prehearing statement as to why you are disabled.
(b) Unless otherwise requested by the administrative law judge, a prehearing statement should discuss briefly the following matters:
(1) Issues involved in the proceeding,
(2) Facts,
(3) Witnesses,
(4) The evidentiary and legal basis upon which your disability claim can be approved, and
(5) Any other comments, suggestions, or information that might assist the administrative law judge in preparing for the hearing.

Deciding a claim without a hearing before an administrative law judge.
(a) Decision wholly favorable. If the evidence in the record supports a decision wholly in your favor, the administrative law judge may issue a decision without holding a hearing. However, the notice of the decision will inform you that you have the right to a hearing and that you have a right to examine the evidence on which the decision is based.
(b) You do not wish to appear. The administrative law judge may decide a claim on the record and not conduct a hearing if—
(1) You state in writing that you do not wish to appear at a hearing, or
(2) You live outside the United States and you do not inform us that you want to appear.
(c) When a hearing is not held, the administrative law judge will make a record of the evidence, which, except for the transcript of the hearing, will contain the material described in §405.360. The decision of the administrative law judge must be based on this record.

Presenting evidence at a hearing before an administrative law judge
(a) The right to appear and present evidence. You have a right to appear before the administrative law judge, either in person or, when the administrative law judge determines that the conditions in §405.315(c) exist, by video teleconferencing, to present evidence and to state your position. You also may appear by means of a designated representative.
(b) Admissible evidence. The administrative law judge may receive any evidence at the hearing that he or she believes relates to your claim.
(c) Witnesses at a hearing. Witnesses who appear at a hearing shall testify under oath or by affirmation, unless the administrative law judge finds an important reason to excuse them from taking an oath or making an affirmation. The administrative law judge, you, or your representative may ask the witnesses any questions relating to your claim.

Closing statements
You or your representative may present a closing statement to the administrative law judge—
(a) Orally at the end of the hearing,
(b) In writing after the hearing and within a reasonable time period set by the administrative law judge, or
(c) By using both methods under paragraphs (a) and (b).

Official record
All hearings will be recorded. All evidence upon which the administrative law judge relies for the decision must be contained in the record, either directly or by appropriate reference. The official record will include the applications, written statements, certificates, reports, affidavits, medical records, and other documents that were used in making the decision under review and any additional evidence or written statements that the administrative law judge admits into the record under §§405.320(a) and 405.331. All exhibits introduced as evidence must be marked for identification and incorporated into the record. The official record of your claim will contain all of the marked exhibits and a verbatim recording of all testimony offered at the hearing; it also will include any prior initial determinations or decisions on your claim. Subject to §405.373, the official record closes once the administrative law judge issues his or her decision regardless of whether it becomes the final decision.

Consolidated hearing before an administrative law judge
(a) General. (1) SSA may hold a consolidated hearing if—
(i) You have requested a hearing to decide your disability claim, and
(ii) One or more of the issues to be considered at your hearing is the same as an issue involved in another claim you have pending before SSA.
(2) If the administrative law judge consolidates the claims, he or she will decide both claims, even if SSA has not yet made an initial determination or a Federal reviewing official decision on the other claim.
(b) Record, evidence, and decision. There will be a single record at a consolidated hearing. This means that the evidence introduced at the hearing becomes the evidence of record in each claim adjudicated. The administrative law judge may issue either a consolidated decision or separate decisions for each claim.

Posthearing conferences
(a) The administrative law judge may decide, on his or her own initiative or at your request, to hold a posthearing conference to facilitate the hearing decision. A posthearing conference normally will be held by telephone unless the administrative law judge decides that conducting it in another manner would be more efficient and effective in addressing the issues raised. SSA will give you reasonable notice of the time, place, and manner of the conference. A record of the conference will be made and placed in the hearing record.
(b) If neither you nor the person you designate to act as your representative appears at the posthearing conference, and under §405.380(b), you do not have a good reason for failing to appear, SSA will issue a decision based on the information available in your claim.

Decision by the administrative law judge
(a) The administrative law judge will make a decision based on all of the evidence, including the testimony adduced at the hearing. The administrative law judge will prepare a written decision that explains in clear and understandable language the specific reasons for the decision. While the administrative law judge will not consider the Federal reviewing official's decision to be evidence, the written decision will explain in detail why the administrative law judge agrees or disagrees with the substantive findings and overall rationale of the decision.
(b) During the hearing, in certain categories of claims that SSA identifies in advance, the administrative law judge may orally explain in clear and understandable language the specific reasons for, and enter into the record, a wholly favorable decision. The administrative law judge will include in the record a document that sets forth the key data, findings of fact, and narrative rationale for the decision. Within five days after the hearing, if there are no subsequent changes to the analysis in the oral decision, SSA will send you a written decision that incorporates such oral decision by reference and that explains why the administrative law judge agrees or disagrees with the substantive findings and overall rationale of the Federal reviewing official's decision. If there is a change in the administrative law judge's analysis or decision, SSA will send you a written decision that is consistent with paragraph (a) of this section. Upon written request, SSA will provide you a record of the oral decision.

Notice of the decision of an administrative law judge
SSA will send a notice and the administrative law judge's decision to you at your last known address. The notice accompanying the decision will inform you whether or not the decision is SSA's final decision, and will explain your right to representation. If it is not SSA's final decision, the notice will explain that the Decision Review Board has taken review of your claim.

Finality of an administrative law judge's decision
The decision of the administrative law judge becomes SSA's final decision and is binding on you unless—
(a) The Decision Review Board reviews your claim,
(b) An administrative law judge or the Decision Review Board revises the decision under subpart G of this part,
(c) A Federal court reverses the decision or remands it for further administrative action, or
(d) The administrative law judge considers new evidence under §405.373.

Requesting consideration of new evidence
(a) If the administrative law judge's decision is SSA's final decision, the administrative law judge will consider new evidence submitted after the issuance of the decision if your claim has not been referred to the Decision Review Board. To obtain such consideration, you must request consideration by the administrative law judge at the earliest possible opportunity, but no later than 30 days after the date you receive notice of the decision.
(b) The administrative law judge will accept the evidence if you show that there is a reasonable probability that the evidence, alone or when considered with the other evidence of record, would change the outcome of the decision, and:
(1) SSA action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from submitting the evidence earlier.
(c)(1) The administrative law judge will notify you within 10 days whether or not he or she will reconsider the final decision.
(2) If the administrative law judge declines to reconsider his or her decision, the decision remains final. If you choose to seek judicial review, you must file in Federal court within the 60-day period beginning with the date you originally received the final decision.
(3) If the administrative law judge agrees to reconsider his or her decision based on the new evidence, the final decision is vacated and not subject to judicial review. After considering the new evidence, the administrative law judge will take appropriate action, including rendering a decision under §405.370, and SSA will send you notice of the decision under §405.371.
(d) If the administrative law judge's decision is not SSA's final decision, you must submit your evidence to the Decision Review Board, and the Board will consider it if you make the showings required in paragraph (b) of this section.

Dismissal of a request for a hearing before an administrative law judge
An administrative law judge may dismiss a request for a hearing:
(a) At any time before notice of the hearing decision is mailed, when you withdraw the request orally on the record at the hearing or in writing;
(b)(1) If neither you nor the person you designate to act as your representative appears at the hearing or at the prehearing conference, SSA previously notified you that your request for hearing may be dismissed if you did not appear, and you do not give a good reason for failing to appear; or
(2) If neither you nor the person you designate to act as your representative appears at the hearing or at the prehearing conference, SSA had not previously notified you that your request for hearing may be dismissed if you did not appear, and within 10 days after SSA sends you a notice asking why you did not appear, you do not give a good reason for failing to appear.
(3) In determining whether you had a good reason under this paragraph, SSA will consider the factors described in §405.20(a) of this part;
(c) If the doctrine of res judicata applies because SSA has made a previous determination or decision on your disability claim on the same facts and on the same issue or issues, and this previous determination or decision has become final;
(d) If you have no right to a hearing under §405.305;
(e) If you did not request a hearing in time and SSA has not extended the time for requesting a hearing; or
(f) If you die and your estate or any person to whom an underpayment may be distributed under §§404.503 or 416.542 of this chapter has not pursued your claim.

Notice of dismissal of a request for a hearing before an administrative law judge
SSA will mail a written notice of the dismissal of the hearing request to you at your last known address. The notice will tell you that you may ask the administrative law judge to vacate the dismissal (see §405.382), and will explain your right to representation. The notice will also tell you that you may ask the Decision Review Board to review the dismissal if the administrative law judge does not vacate it.

Vacating a dismissal of a request for a hearing before an administrative law judge
If you ask in writing within 30 days after the date you receive the notice of dismissal, an administrative law judge may vacate a dismissal of a hearing request. The administrative law judge will vacate the dismissal if he or she finds that it was erroneous. SSA will notify you of whether the administrative law judge granted or denied your request.

Effect of dismissal of a request for a hearing before an administrative law judge
The administrative law judge's dismissal of a request for a hearing is binding and not subject to further review, unless it is vacated by the administrative law judge under §405.382 or by the Decision Review Board under §405.427 of this part.