I-2-7-1.Posthearing Evidence – When Proffer Is Required
Last Update: 4/1/16 (Transmittal I-2-171)
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
When an administrative law judge (ALJ) receives additional evidence after the hearing from a source other than the claimant or the appointed representative, if any, and the ALJ proposes to admit the evidence into the record, he or she will proffer the evidence to the claimant and appointed representative, if any. For a description of information an ALJ will exhibit, see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-1-15. When proffer is required, the ALJ will usually offer the claimant an opportunity for a supplemental hearing. See subsection C below.
An ALJ must always proffer interrogatory responses from a medical or vocational expert, or posthearing consultative examination reports. Proffer is required even if interrogatory responses were obtained prehearing. (For prehearing proffer procedures, see HALLEX I-2-5-29).
An ALJ will not proffer posthearing evidence when:
The evidence was submitted by the claimant or the appointed representative, if any, and there is no other party to the hearing (see HALLEX I-2-7-20). (For more information about who is a party to the hearing, see HALLEX I-2-1-45);
The claimant has knowingly waived his or her right to examine the evidence (see HALLEX I-2-7-15); or
The ALJ issues a fully favorable decision.
For more information about specific proffer procedures, see HALLEX I-2-7-30. Additionally, when there are multiple parties to a hearing, the ALJ must proffer additional evidence from one of the parties to all parties to the hearing. For an explanation of who is a party to a hearing, see HALLEX I-2-1-45.
C. When Offering a Supplemental Hearing With Proffered Evidence Is Required
In addition to proffering posthearing evidence, an ALJ will offer the claimant the opportunity for a supplemental hearing unless:
The ALJ admits non-opinion evidence into the record but does not cite to or otherwise rely on the additional evidence when making a finding; or
The evidence is of a nature that it has no significant impact on the outcome or processing of the claim (e.g., medical treatment for a common ailment that the ALJ reasonably finds is unrelated to the claimant's impairment(s)).
Offering a supplemental hearing is required if the proffered evidence includes any opinion evidence or a medical examination report requested by the ALJ (e.g., a consultative examination report).
If a claimant requests a hearing on proffered evidence when the ALJ appropriately did not offer a supplemental hearing (i.e., the criteria above is met), the ALJ has discretion to decide whether to grant the request. However, if the ALJ offered the right to a hearing on the proffered evidence, even in error, the ALJ must grant any request for a supplemental hearing.