Surprise and the Post-Hearing Brief

I discussed the issue of the five-day rule for the submission of evidence.  I did so as a break from the consistent drone of vocational issues.  Today, we see those two concepts get married.

The intrepid representative receives a notice of hearing containing a statement that a vocational expert will testify at the hearing.  A separate notice to the vocational expert gives that person's name and address.  The exhibit file will eventually contain a copy of the person's professional resume, or curriculum vitae.  Does the representative know what the person will say in response to any hypothetical question?  Does representative know what the hypothetical question will be as framed by the ALJ?  If the representative does not know, then any testimony given by the vocational expert constitutes SURPRISE!

HALLEX addresses supplemental and continued hearings.

I-2-6-80.Continued or Supplemental Hearing

Last Update: 9/2/05 (Transmittal I-2-64)

Citations:

• 20 CFR §§ 404.944, 416.1444.
  

Circumstances may require an ALJ to adjourn a hearing in progress and continue it at a later date, conduct a supplemental hearing, or reopen the record to receive additional evidence. If testimony at a hearing leaves unanswered questions, the ALJ may supplement the hearing record with additional oral testimony, a deposition, or additional documentary evidence.
A continuance or supplemental hearing is appropriate when:

• certain testimony or a document adduced at the hearing has taken the claimant by surprise, is adverse to the claimant's interest, and presents evidence that the claimant could not reasonably have anticipated and to which the claimant is not prepared to respond;
  

The vocational expert testimony has taken the claimant by surprise, is adverse to the claimant, and the claimant could not reasonably anticipate the content of the vocational expert testimony.

The right to a continued or supplemental hearing, or rather the right to request one, includes lesser remedies.  A lesser remedy to a continued her supplemental hearing is the submission of post-hearing evidence in the form of a request for administrative notice.  Administrative notice constitutes evidence of fact without the introduction of testimonial evidence.  Since the claimant does not want to take further of live testimony, but rather prove the existence of conflict between the vocational expert testimony and matters of administrative notice, whether the ALJ actually convenes a continued her supplemental hearing is irrelevant to the disposition that the claimant should have the right to submit a post-hearing brief that attaches, proffers, or otherwise introduces matters of administrative notice.

The matters of administrative notice include private and governmental sources of job data.  The examples provided in the regulations include the Dictionary of Occupational Titles, County Business Patterns, and the Occupational Outlook Handbook.  Because these are examples, other types of administrative notice exist.  This includes the O*NET OnLine, the Occupational Requirements Survey, and private publications.  Private publications include products published by SkillTran and U.S. Publishing.

Request an submit a post-hearing brief on vocational issues adverse to the claimant's testimony.  Be thorough and complete.