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

Last Update: 8/29/14 (Transmittal I-2-116)

A. General

The administrative law judge (ALJ) or the hearing office (HO) staff must provide the claimant or representative, if any, an opportunity before the hearing to examine the material that constitutes or will constitute the evidence of record. The claimant or representative has the right to examine all material in the file, not just the material the HO staff has selected as “proposed exhibits.” See Hearings, Appeals and Litigation Law (HALLEX) manual I-2-1-15.

NOTE:

If the claim(s) file is paper and the case is being transferred to another HO, see HALLEX I-2-1-57 B.1.

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

When an electronic claim(s) file is involved, the HO staff will generally burn an encrypted compact disc (CD) of the claim(s) file for unrepresented claimants. When a claimant is represented, HO staff will generally provide a CD to a representative who is not registered for online access to the folder, or to representatives who enrolled for online access before November 1, 2010, and have not informed the agency that they no longer want to receive CDs. For more information, see the HO electronic business process (eBP) section 3.2 S.

NOTE 1:

CDs for claimants and representatives are typically prepared during workup after the case is exhibited and on the evening before or on the day of the hearing.

NOTE 2:

When the record shows that an unrepresented claimant is in prison, HO staff will mail a paper copy only, as prisoners are not allowed to receive CDs. See eBP section 3.2 R.3.

After providing the CD, HO staff must annotate in the messages tab in eView that a CD was provided, the exhibits included on the CD, and the date the CD was burned. This is necessary to determine whether fees are required for additional copies under HALLEX I-2-1-35 C below.

For a paper claim(s) file, if a claimant or representative requests to examine the file or proposed exhibits before the hearing, HO staff will inform the person that he or she can examine the file and proposed exhibits at the HO. When the person indicates review at the HO is not possible, HO staff will inform the person that he or she can review the file and proposed exhibits at the field office (FO). If the person agrees to review in the FO, HO staff will send the paper file 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 HALLEX I-2-7-30 G. If review at neither location is possible, HO staff must send photocopies of proposed exhibits and other claim(s) file material to the person.

NOTE 3:

An ALJ or HO staff may suggest that a claimant or representative review a paper file and proposed exhibits at the HO or FO, but the ALJ or HO staff cannot require the claimant or representative do so.

NOTE 4:

When the request is unclear, HO staff should request that a claimant or representative clarify whether he or she wants a copy of all material in the file (including route slips, file copies of correspondence, etc.) or only a copy of all proposed exhibits.

After sending a copy of the paper claim(s) file, HO staff will annotate on a Report of Contact (ROC) that a copy was mailed to the person requesting the file. The ROC should include the name, address, exhibits, and the date the copy was mailed. In part, this is necessary to determine whether fees are required for additional copies under HALLEX I-2-1-35 C below.

C. Charging Fees for CDs or Photocopies

Per provisions in the Privacy Act, the HO will provide one free copy of a file to the claimant when access is for program purposes (i.e., for the purpose of obtaining a Social Security benefit). A representative is also entitled to a free copy of the claim(s) file, unless the claim(s) file is electronic and the representative is registered for online access to the claim(s) file. See HALLEX I-2-1-35 B above.

When the HO sends the free copy of the claim(s) file, it will annotate the record, as noted in HALLEX I-2-1-35 B above. If the HO has already provided a free copy of the claim(s) file, see HALLEX I-1-4-3 D.2.

NOTE:

The HO may also waive fees for subsequent copies of the claim(s) file when the cost of copying all the materials is less than the cost of separating materials not yet released to the claimant.

If there is any question whether the HO should charge a fee for a subsequent copy, HO staff should contact the appropriate Office of Disability Adjudication and Review regional office for guidance.

NOTE:

HO staff may not provide a claim(s) file to any person, even an employee of a representative, without proper authorization for the release of information to the individual.

D. Action When the Claim(s) File Contains Sensitive Material

If the claim(s) file contains material that may be harmful to the claimant, follow the procedures in HALLEX I-2-7-30 F.

If the file 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 HALLEX I-2-1-15 A.