I-2-1-35.Examination of Proposed Exhibits and Other Claim File Material

Last Update: 9/28/05 (Transmittal I-2-67)

A. General

The ALJ or the HO staff must provide the claimant or representative, if any, an opportunity before the hearing to examine the CF material that constitutes or will constitute the evidence of record for decision. The claimant or representative has the right to examine all material in the CF, not just the material the HO staff has selected as “proposed exhibits.” (See I-2-1-15, Exhibits.) Whenever possible, the ALJ or the HO staff will make the CF material available for examination in the HO or an FO to avoid unnecessary photocopying of the material.

NOTE:

If the CF contains sensitive or confidential material, the ALJ or HO staff must take appropriate measures to protect the claimant's or other individual's privacy. (See D., below.)

NOTE:

The Request for Voluntary Remand (RVR) memorandum and the Appeals Council response should not be entered into the record as exhibits, even if it is included in the file released to the HO on remand. The RVR and the Appeals Council response is not subject to review by the claimant or the claimant's representative. The RVR and the Appeals Council response should be given to the Hearing Office Chief Administrative Law Judge for retention until after the case is adjudicated at which time such documents can be provided to the Administrative Law Judge for inclusion into the ALJ file which is not subject to discovery.

B. Providing the Opportunity to Examine the Proposed Exhibits and Other Claim File Material

  1. If a claimant or representative requests to examine the CF or proposed exhibits before the date of the hearing, inform the requester that he or she can examine the CF and proposed exhibits in the HO.

  2. If the requester indicates that he or she will not be able to examine the CF or proposed exhibits in the HO before the hearing, inform the requester that he or she can examine the CF or proposed exhibits in an FO. If the requester agrees to this procedure, send the CF and proposed exhibits to the FO closest to the claimant's residence or the representative's place of business, following the general procedures set forth in I-2-7-30 G., Proffer Through the FO.

  3. The HO staff must send photocopies of proposed exhibits and other CF material to the requester if the requester is unable to examine the proposed exhibits and CF material in the HO or FO.

NOTE:

Although an ALJ may suggest that a claimant or representative come to an HO or FO to review proposed exhibits and CF material, the ALJ cannot require the claimant or representative to do so.

NOTE:

An ALJ may request that a claimant or representative clarify whether he or she wants a copy of all CF material (including route slips, file copies of correspondence, etc.) or only a copy of all proposed exhibits. Once the claimant clarifies the request, the ALJ must provide the material requested.

NOTE:

For hearings that will be conducted by videoconference, HOs must develop procedures for providing the claimant or the representative with access to the CF. This includes procedures for review of the CF in the FO when necessary. (See I-5-1-16, Video Conferencing Procedures.)

C. Charging Fees for Photocopies

SSA complies with the access provision of the Privacy Act by providing one free copy of CF material to the claimant or the representative when access is for program purposes, such as pursuing a benefit under the Social Security Act. Once SSA has provided a free copy of CF materials, see I-1-4-3, Privacy Act, for a discussion of SSA's policy regarding charging fees for copies of CF materials.

Unless the HO maintains a record (i.e., a list and/or description) of the copies provided, the HO, on receiving another request for a copy of the same material, cannot determine whether the HO already provided a copy of that material. Therefore, the HO staff should document the CF when providing photocopies of CF materials to a claimant or representative.

However, because preparing lists or descriptions of released materials and subsequently separating such materials from materials not yet released may outweigh the cost of simply copying all of the materials, the HO may waive fees for subsequent copies. If there is any question whether the HO should charge a fee for a subsequent copy, contact the Regional Office for guidance.

These procedures contemplate that copies of CF materials will be provided to the claimant or an authorized representative only. Claimants' CF materials should not be provided to any other person, even an employee of a representative (such as a clerk for a law firm representing the claimant), without proper authorization for the release of information to this individual as an agent of the representative and verification of the individual's current employment and association with the representative in every instance.

D. Action When the CF Contains Sensitive Material

  1. If the CF contains material that may be harmful to the claimant or another person, follow the procedures in I-2-7-30 F., Evidence Contains Information Which May Be Detrimental to the Claimant's Health.

  2. If the CF contains material that a source has identified as sensitive or confidential, and efforts to obtain release of the restriction have been unsuccessful, the ALJ may not admit the material into the record as evidence for decision or disclose the material to any other person. (See I-2-1-15 B., Documents Not Normally Made Exhibits.)