TN 40 (05-12)

A. Policy for acceptance of evidence at ALJ hearings

The Administrative Procedure Act gives ALJs the authority to admit or refuse to admit evidence into the record, based on whether the ALJ is of the opinion that the evidence is “relevant,” irrespective of whether the evidence is "certified" according to SSA's procedures for certification. Because the Office of Disability Adjudication and Review's policy is to encourage ALJs to take a liberal approach in deciding what evidence is “relevant” and thus admissible into the record, there may be instances in which ALJs may consider non-certified evidence in rendering their decisions.

B. Procedure for use of evidence submitted at ALJ hearings

1. Evidence submitted is relevant

1. Presume the ALJ evaluated the evidence if it is clear that:

   • The evidence was pertinent to the issue before the ALJ;

   • The ALJ based the decision on the evidence; or

   • The ALJ included it in the list of exhibits in the hearing decision.

2. Presume we accepted and certified the evidence under the existing standards.

3. Use such evidence in any subsequent adjudication.

2. Evidence submitted is not relevant to issue considered by ALJ

1. Presume the ALJ accepted and certified the evidence included in the list of exhibits in the hearing decision.

2. Adjudicate the case disregarding the uncertified evidence.

3. Develop to have the evidence certified.