I-2-1-35.Examination of Proposed Exhibits and Other Claim(s) File Material
Last Update: 7/21/16 (Transmittal I-2-177)
A. General Policy
The claimant or appointed representative, if any, has the right to examine all material in the claim(s) file, not just the material the administrative law judge (ALJ) or hearing office (HO) staff has selected as “proposed exhibits.” For more information about exhibits, see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-1-15.
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
1. Electronic Claim(s) File
As described in HALLEX I-5-1-22, certain representatives must access an electronic claim(s) file through the Appointed Representative Services (ARS) system or obtain a copy from a principal representative. Subject to the limitations described in HALLEX I-5-1-22, the ALJ or HO staff will provide a claimant or representative, if any, an opportunity before the hearing to examine the material that constitutes or will constitute the evidence of record. When a claimant is unrepresented or when the instructions in HALLEX I-5-1-22 do not apply to a representative, HO staff will burn an encrypted compact disc (CD) of an electronic claim(s) file. When a CD is provided, HO staff will annotate this action in the messages tab in eView as well as the exhibits included on the CD and the date the CD was burned. This documentation is necessary to determine whether fees are required for additional copies under C below.
When applicable, HO staff typically prepares CDs during workup after the case is exhibited and on the evening before or on the day of the hearing.
When the record shows that an unrepresented claimant is incarcerated, HO staff will mail a paper copy only, as prisoners are not allowed to receive CDs. See electronic business process section 3.2.
2. Paper Claim(s) File
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 C. If review at neither location is possible, HO staff must send photocopies of the file and proposed exhibits to the person.
An ALJ or HO staff may suggest, but cannot require, that a claimant or representative review a paper file and proposed exhibits at the HO or FO.
When the request is unclear, HO staff will ask the claimant or representative to clarify whether he or she wants a copy of all material in the file (e.g., 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 to the claimant or representative, HO staff will annotate a form SSA-5002, Report of Contact, documenting the name of the recipient, the recipient's address, the exhibits copied, and the date the copy was mailed. This action is necessary to determine whether fees are required for additional copies under 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 subject to the instructions in HALLEX I-5-1-22.
When the HO sends the free copy of the claim(s) file, it will annotate the record, as noted in B above. If the HO has already provided a free copy of the claim(s) file, see HALLEX I-1-4-3 D.2.
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.
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 B.
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.