Who’s Calling, Please?

Empire Justice July 15, 2013

Newly promulgated regulations sanction the use of telephonic testimony at hearings. As part of SSA’s “continual efforts to handle workloads more effectively and efficiently,” Administrative Law Judges (ALJs) may determine how any person who is not a party to a hearing will appear, whether in person, by video teleconferencing (VTC), or by telephone. “Person” includes medical and vocational experts.

The claimant must be notified if the ALJ determines that testimony will be by telephone.  The claimant has the right to object, but the ALJ will decide how the person/expert will appear.  The regulations are in response to recent cases holding that, under existing regulations, ALJs could not take medical testimony by telephone without prior notice to the claimant and over the claimant’s objections.  See, e.g., Edwards v. Astrue, No 3:10cv1017, 2011 WL 3490024 (D. Conn. Aug. 10, 2011), which was discussed in the December 2011 Disability Law News.

In responding to comments offered after these regulations were first proposed in 2007, the Commissioner dismissed concerns raised about due process or bias, noting that the ALJ has the discretion to schedule an in-person hearing when it would be “advisable.”  Per SSA, claimants and representative still have the right to question and cross-exam witness even if not in-person.

The regulations also permit an ALJ to allow claimants or any other parties to a hearing to appear by telephone when requested by the claimant or other party.  Note, however, that as discussed on page 4, SSA has already proposed more regulations that would allow the ALJs to mandate that the claimant appear by telephone in “extraordinary circumstances.”

The “Rules on Determining Hearing Appearance” were published in the Federal Register on May 20, 2013, with an effective date of June 20, 2013.  They can be found at http://www.gpo.gov/fdsys/pkg/FR-2013-05-21/html/2013-11932.htm.