Last Update: 9/2/05 (Transmittal I-2-62)
A. When Proffer Is Required
The Administrative Law Judge (ALJ) must proffer all posthearing evidence unless:
The evidence was submitted by the claimant or the claimant's representative and there is no other claimant to the hearing.
The claimant has knowingly waived his or her right to examine the evidence (See I-2-7-15, Waiver of the Right to Examine Posthearing Evidence.).
The ALJ proposes to issue a fully favorable decision.
B. The Proffer Letter
The proffer letter must:
Give the claimant a time limit to object to, comment on or refute the evidence, submit a written statement as to the facts and law that the claimant believes apply to the case in light of the evidence submitted, submit written questions to be sent to the author(s) of the proferred evidence or exercise his or her rights with respect to requesting a supplemental hearing and the opportunity to cross-examine the author(s) of any posthearing report(s) if it is determined by the ALJ that such questioning is needed to inquire fully into the issues.
Advise the claimant that he/she may request a subpoena to require the attendance of witnesses or the submission of records and the procedures for the requesting and issuance of a subpoena.
C. Represented Claimant
If a claimant is represented, prepare a proffer letter to the representative, and make two copies. For the Proffer letter, access DGS, click on “Correspondence,” click on “Posthearing” and then click on “5E - Time to Submit Additional Evidence”. Distribute it as follows:
Send the original proffer letter and a copy of the new evidence to the representative.
Send a copy of the proffer letter to the claimant.
Enter into the record a copy of the proffer letter, a copy of the new evidence, and any comments received from the claimant and representative regarding the new evidence.
D. Unrepresented Claimant
If a claimant is unrepresented, prepare a proffer letter to the claimant, and make one copy. The Proffer Letter may be accessed by proceeding to DGS; click on “Correspondence,” click on “Posthearing,” and then click on “5E - Time to Submit Additional Evidence”. Modify the letter as necessary to reflect that it is being sent to an unrepresented claimant.
Distribute it as follows:
Send the original proffer letter and a copy of the new evidence to the claimant.
Enter into the record a copy of the proffer letter, a copy of the new evidence, and any comments received from the claimant regarding the new evidence.
E. Claimant Requests Additional Time to Submit Comments
If a claimant requests additional time to submit comments, the ALJ should consider the request under the procedures in I-2-7-20 A., Claimant Requests Additional Time to Submit Evidence or Arguments after the Hearing.
F. Evidence Contains Information Which May Be Detrimental to the Claimant's Health
If the evidence contains information which may be detrimental to the claimant's health; e.g., information about the claimant's medical condition which the claimant does not know, use the special proffer procedures outlined below:
If the claimant is represented:
Send a copy of the evidence to the representative, along with the proffer letter which advises against showing the evidence to the claimant. To access the Proffer letter go to DGS, click on the “Correspondence” icon, click on “Posthearing” and then click on “5E - Time to Submit Additional Evidence”.
Do not send the claimant a copy of this evidence or a copy of the proffer letter to the representative which advises the representative to not show the evidence to the claimant.
Recommend to the representative that he or she discuss this evidence with the claimant only in general terms.
The ALJ should modify the proffer letter to include the following or similar language:
The enclosed report contains language which may be detrimental to the claimant's health; therefore, I suggest that you refrain from showing it to the claimant and that you use general terms to discuss the report.
If the claimant is unrepresented, the ALJ may give the claimant the opportunity to examine the evidence in the hearing office (HO) or, if more convenient to the claimant, in the claimant's servicing field office (FO). Although the claimant has a right to examine such evidence, the HO or FO staff involved with presentation of the evidence to the claimant should ensure that a relative or friend accompanies the claimant when the evidence may be especially detrimental to the claimant's health.
G. Proffer Through the FO
If the ALJ decides to proffer evidence to an unrepresented claimant through the FO, the ALJ will:
Send a letter to the claimant advising him or her of the procedure. (See I-2-7-93 Sample - Letter Advising Claimant of Proffer Through the Field Office.) The letter must also advise the claimant of the following:
The right to:
Examine and comment on the evidence.
Submit additional evidence to refute the new evidence.
Ask the ALJ to send the evidence to the claimant's treating physician for comments.
Request a supplemental hearing.
Request the opportunity to orally question the author of any posthearing report.
The FO will not be able to discuss the material because the case is before the ALJ.
The FO will not be able to provide the claimant with a copy of the evidence.
The FO will inform the claimant when the evidence is in the FO, and will allow the claimant 10 days to examine it.
If a claimant asks the FO for a copy of evidence reviewed there, the FO will inform the claimant that they cannot provide a copy, but will refer the request to the HO when they return the evidence to the HO. The reason for this is to avoid shifting the HO's photocopying responsibilities to the FO, and photocopying by the FO would defeat the purpose of proffer through the FO. If there is any indication that photocopying will be necessary, the HO should not proffer through the FO.
Prepare a list of the additional evidence. (See I-2-7-94 Sample - List of Additional Evidence.):
Enclose the original with the letter to the claimant.
Enclose a copy with the memorandum which transmits the posthearing evidence to the FO.
Prepare an original and two copies of a cover memorandum asking the FO to assist in arranging for the claimant to examine the additional evidence at the FO. (See I-2-7-95 Sample - Memorandum to Field Office with Copy of Posthearing Evidence.)
Advise the FO to inform the claimant by letter that the evidence will be available at that office for 10 days from the date of the FO's letter.
Enclose the following documents with the ALJ's cover memorandum to the FO:
A copy of the letter the ALJ has sent to the claimant.
A list of additional evidence. (See I-2-7-94 Sample - List of Additional Evidence.)
A copy of the evidence being proffered.
An attachment to document that the claimant has reviewed the evidence. (See I-2-7-96 Sample - Examination of Evidence.) This attachment should contain the following:
An entry for the claimant to complete which acknowledges examination of the new evidence.
Space for the claimant's comments, if any, and space to indicate whether any additional evidence will be submitted.
A signature and date line for the FO employee to complete if the party does not respond to the FO letter within 10 days.
H. Action on Receipt of Comments After Proffer
The ALJ must address proffer comments in the rationale of the written decision. The ALJ must make a formal ruling in the decision or by separate order on any objections to proffered evidence, and make the ruling a part of the record. If the record must be kept open for the submission of additional evidence, the ALJ should set a time limit for the submission of the evidence. The ALJ should provide the claimant a copy of his/her ruling on any objection if the ruling is handled by separate order.
If the claimant requests a supplemental hearing, the ALJ must grant the request, unless the ALJ receives additional documentary evidence that supports a fully favorable decision.
If the claimant requests an opportunity to question the author(s) of any posthearing report other than the written response of an ME or VE to interrogatories, the ALJ must determine if questioning of the author is required to inquire fully into the matters at issue and, if so, whether the questioning should be conducted through live testimony or written interrogatories (considering the difficulty of anticipating in written interrogatories all the questions that might arise and the claimant's opportunity for a supplemental hearing).
If the claimant asks to question an ME or VE who has responded to interrogatories, the ALJ should apply the provisions of, as appropriate, I-2-5-44, Action When ALJ Receives Medical Expert's Responses to Interrogatories, or I-2-5-58, Action When ALJ Receives Vocational Expert's Responses to Interrogatories.
If the ALJ requests the author to appear for questioning, and the author declines to appear voluntarily, the ALJ should apply the provisions of I-2-5-78, Use of Subpoenas — General, to determine if the claimant should be afforded use of the subpoena and consequent cross-examination. If a subpoena is issued, the procedures in I-2-5-80, Preparation and Service of a Subpoena, and those in I-2-5-82, Noncompliance with a Subpoena, apply.