This memorandum was issued by Deputy General Counsel for Administrative Hearings Russell J. Hanks as part of the Order of Partial Settlement in Ewing v Dowling, 92-CV-6521T (W.D.N.Y. November 7, 1994). This memo provides instructions for Administrative Law Judges (ALJs) concerning the provisions of 7 CFR ยง 273.15(m)(3)(iii) and (v), which require that the
"hearing official shall: . . .
"(iii) Request, receive and make part of the record all evidence determined necessary to decide the issues being raised; . . .
"(v) Order, where relevant and useful, an independent medical assessment or professional evaluation from a source mutually satisfactory to the household and the State agency; . . .
Mr. Hanks instructs ALJs, at p. 1, as follows:
"These provisions are interpreted to require the use of an independent medical assessment or professional evaluation only in the rare circumstance where:
"1) the issue cannot be disposed of on other grounds, and
"2 ) the parties have had full opportunity to present their own relevant evidence, through the appropriate use of adjournments, remands and reopened hearings, and
"3) the parties have had full opportunity to review and contest the relevant evidence presented by the opposing side, through the appropriate use of adjournments, remands and reopened hearings, and
"4) in weighing the evidence, the ALJ concludes that the relevant evidence presented by the opposing parties is equally convincing and a determination cannot be made without additional independent evidence.
"In the event that all of the above conditions are met, the ALJ must consult with her/his supervisor."
|
