Last Update: 9/28/05 (Transmittal I-2-68)
Live testimony in person, by telephone, or by video teleconference with opportunity to question the VE is the preferred method for obtaining VE opinion, but written interrogatories may be used. Written interrogatories are often used when the ALJ receives posthearing evidence, but can be used at other points in the hearing process. The claimant or representative may ask the ALJ to obtain interrogatories, or the ALJ may decide to use them on his or her own initiative.
When preparing interrogatories, the ALJ must:
phrase each question in a way that will not suggest any specific conclusion, but will elicit a clear and complete response that can ultimately be expressed (to the extent possible) in lay terms (See I-2-5-94, Sample-Interrogatories to Vocational Expert.); and
leave sufficient space between the questions for the answers.
Before releasing the interrogatories to the VE, the ALJ must transmit the proposed interrogatories to the representative with a copy to the claimant, or to the claimant if not represented, to determine if they object to the use of interrogatories in general, object to any particular interrogatory, or wish to propose other interrogatories. (See I-2-5-97 Sample-Letter to Transmit Interrogatories to Claimant or Representative.)
If the claimant or representative objects to the use of interrogatories in general, the ALJ must consider the claimant's or representative's reason(s) for believing that the ALJ cannot establish facts relevant to the issues in the case by means of written interrogatories, and rule on the objection. The ruling may be on the record, in a separate written document to be made an exhibit or in the decision. Factors that the ALJ may consider in determining whether to grant a claimant's or representative's request to question a VE at a hearing or supplemental hearing include, but or not limited to:
the preference of live testimony, in person or by videoconference or telephone conference technology as the method for obtaining expert opinion evidence (See I-2-5-30, Medical or Vocational Expert Opinion — General.);
whether a hearing is needed to address the claimant's or representative's allegations of bias on the part of the VE; and
whether a hearing is needed to address the VE's qualifications.
If a claimant or representative objects to a particular interrogatory or proposes other interrogatories, the ALJ must rule on the objection or proposal. Factors that the ALJ may consider in determining whether to revise or expand the interrogatories include, but are not limited to, whether the claimant's or representative's comments or proposed additions are material to the issues in the case and are based on the evidence of record.
If the ALJ rules against the claimant's or representative's objection(s) or proposal(s), he or she must:
inform them in writing of the ruling, and the reason(s) for it;
enter a copy of the ruling into the record as an exhibit; and
address the objection(s) or proposal(s) and provide the rationale for the ruling in the hearing decision.
If the ALJ revises or expands the interrogatories, he or she must submit the revised or expanded interrogatories to the claimant or representative for further comment. (See I-2-5-98 Sample-Letter to Transmit Revised Interrogatories to Claimant or Representative.)
Initial Transmission of Interrogatories to the VE
After the claimant or representative has responded to the ALJ's proposed interrogatories and all issues have been resolved, or after the claimant or representative fail to respond, the ALJ will send the interrogatories to the VE along with the following:
a. A letter explaining the request and the requested method of response. (See I-2-5-95 Sample-Letter to Expert Witness, Written Interrogatories.)
Include all identifying information in the letter.
Request a response within 10 days.
Mark one copy of the letter as an exhibit and place it in the CF.
Place a copy of the letter in the HO file.
Photocopies of the pertinent evidence, arranged in chronological order. Include the following:
A list of the proposed exhibits being sent (Form HA-540, Exhibits List)(To access HA-540 go to DGS and click on the “Exhibit” tab and then click on the “Exhibit List” tab) and
A copy of the VE's professional qualifications for verification.
NOTE:
Do not include the professional qualifications of any other sources.
A transcript or summary of any pertinent testimony provided in an earlier hearing.
A statement of the issues in the case.
A Contractor's Invoice generated in WebBass for signature by the VE. (To access the contractor invoice, HA-590, in DGS, go to DGS and click on the “Contractor's Invoice” tab.)
NOTE:
If OHA does not have a BPA with the VE, provide any pertinent VE orientation materials available, and use Optional Form 347 (Order for Supplies or Services) to obtain payment.
The name and telephone number of an HO contact person.
A self-addressed, postage paid envelope large enough for the VE to return all enclosures.
Subsequent Transmission of Interrogatories to a VE
When an ALJ receives new evidence after a VE has provided testimony or responded to interrogatories, and decides to forward the new evidence to the VE for review with interrogatories to determine if it affects the prior testimony or response, the ALJ must:
Transmit the interrogatories to the representative with a copy to the claimant, or to the claimant if not represented, to determine if they have any objection or proposal, and rule on any objection or proposal. (See I-2-5-57 A. through C.)
After the claimant or representative has responded and all issues have been resolved, or after the claimant or representative fail to respond, send the interrogatories to the VE with:
a letter explaining the request and the requested method of response (See I-2-5-96 Sample-Transmittal Letter to Expert Witness — Evidence Received After Interrogatories. Include all identifying information in the letter and request a response within 10 days.);
a photocopy of the new evidence;
copies of pertinent evidentiary documents the VE previously reviewed if not maintained by the VE at the request of the ALJ ; and
the name and telephone number of an HO contact.
Distribute the letter as follows:
send the original to the VE;
send copies to the claimant and the representative;
mark one copy of the letter as an exhibit and place it in the CF; and
place a copy in the HO file.
Diary the case for the requested response date, and make the appropriate follow-up contacts.