I-2-5-29.Prehearing Proffer of Evidence
Last Update: 4/1/16 (Transmittal I-2-170)
A. Definition of Proffer
Generally, to “proffer” means to offer or present for consideration. In the context of evidence development, to “proffer” means to provide an opportunity for a claimant (and appointed representative, if any) to review additional evidence that has not previously been seen and that an adjudicator proposes to make part of the record. Proffering evidence allows a claimant to:
Comment on, object to, or refute the evidence by submitting other evidence; or
If required for a full and true disclosure of the facts, cross-examine the author(s) of the evidence.
B. When Proffer is Required Prehearing
Under most circumstances, proffer is not necessary when an administrative law judge (ALJ) receives additional evidence before the hearing from a source other than the claimant or the appointed representative, if any. Proffer is not usually required because other hearing procedures require that an ALJ provide the claimant or representative an opportunity to review any information in the claim(s) file before the hearing. See Hearings, Appeals and Litigation Law (HALLEX) manual I-2-1-35.
However, if an ALJ agrees to take certain actions during a prehearing conference, the ALJ must summarize the actions to be taken in writing and proffer the writing to the claimant and representative. See HALLEX I-2-1-75 E. Additionally, if the ALJ (or assisting staff) requested interrogatories from a medical or vocational expert, and the received responses would not result in a fully favorable decision, the ALJ (or assisting staff) is required to proffer the evidence to the claimant and appointed representative, if any. Proffer is necessary to allow the claimant or appointed representative to object to or present additional questions to the author of the evidence. Wherever possible, the ALJ will proffer this evidence as soon as possible after receiving the responses to avoid the possibility that the author of the evidence will be unavailable to respond to additional questions.
If the author of opinion evidence is unavailable when follow up questions are submitted, the ALJ will carefully consider a claimant's or appointed representative's comments or objections to the opinion and determine whether responses are necessary for a full and true disclosure of the facts. If the comments or objections raise legitimate concerns about the opinion, the ALJ will consider this in determining the weight to give to the opinion and address the issue in the decision. If objections are raised, the ALJ must specifically rule on the objection in a writing marked as an exhibit or on the record during the hearing. See HALLEX I-2-2-20 and I-2-5-44.
When proffering the evidence, the ALJ will use the same general procedures for proffering posthearing evidence, as set forth in HALLEX I-2-7-30. When proffer occurs prehearing, there is no need for the ALJ to offer the claimant the opportunity for a hearing at the time of the proffer (i.e., a hearing will be subsequently scheduled unless a fully favorable on-the-record decision is later warranted).
If an ALJ becomes aware of the need to proffer prehearing evidence at or after the hearing, the ALJ will take the steps necessary to proffer the evidence, and, as required, offer a supplemental hearing. For more information about proffer and supplemental hearings, see the instructions in HALLEX I-2-7-1.