HALLEX Provision Revised

Empire Justice Center January 31, 2020

SSA has amended HALLEX I-2-5-71 to “clarify” (one of SSA’s favorite euphemism) its provision regarding testimony of field office (FO) employees at a hearing.  According to Transmittal No. I-2-234, an ALJ must now obtain concurrence from the Hearing Office Chief Administrative Law Judge (HOCALJ), the Regional Chief ALJ (RCALJ), and the Regional Commissioner (RC) to request the appearance of an FO employee.  SSA removed the provision allowing the RCALJ to waive notification; the RCALJ’s concurrence is now required.

Why might a FO employee be a witness?  The HALLEX provision suggests it might be necessary to    resolve conflicting statements in a file.  Or perhaps testimony could be relevant if a claimant wants to prove they filed a request on time, or relied on a statement of a FO claims representative.  Testimony might also be relevant in an overpayment case.  See, e.g., Ritter o/b/o C.R. v. Astrue, 2009 WL 529522 (W.D.N.Y. Mar. 2, 2009) (remanding where the record did not contain a detailed explanation of the basis for the overpayment).  The court cited Chlieb v. Heckler, 777 F.2d 842, 844&847 (2d. Cir 1985), where the court found that testimony of a Social    Security benefits authorizer experienced at computing benefit rates constituted substantial evidence of the existence of the alleged overpayment.  Of course, now it will be even more difficult to obtain that testimony when you need it.