Last Update: 4/1/16 (Transmittal I-2-171)
For information on when proffer is required posthearing, see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-7-1. For information on when proffer is required prehearing, see HALLEX I-2-5-29.
A. Proffering Evidence
An administrative law judge (ALJ) proffers evidence by sending a letter to the claimant and appointed representative, if any, that provides the following information:
A time limit to object to, comment on, or refute the proffered evidence, and to submit a written statement as to the facts and law that the claimant believes apply to the case in light of the evidence submitted;
A time limit to submit written questions to the author(s) of the proffered evidence;
When applicable (see HALLEX I-2-7-1), an opportunity to request a supplemental hearing, including the opportunity to cross-examine the author(s) of any posthearing evidence; and
The opportunity and instructions for requesting a subpoena for the attendance of witnesses or the submission of records.
Hearing office (HO) staff will associate a copy of the proffer letter and a copy of the new evidence with the claim(s) file.
B. Sending the Proffer Letter
If a claimant is represented, HO staff will send the proffer letter to the appointed representative, with a copy of the proffer letter to the claimant. HO staff will also include a copy of the new evidence if the representative does not have online access to the claim(s) file through the Appointed Representative Services portal or when the claim(s) file is paper.
If a claimant is unrepresented, HO staff will usually prepare a proffer letter to the claimant (modifying the letter as necessary) and send the original proffer letter and a copy of the new evidence to the claimant.
However, if the additional evidence contains information that may be detrimental to the claimant's health, the ALJ will proffer as follows:
If the claimant is represented, the ALJ will send a modified proffer letter and a copy of the evidence only to the representative. In the modified letter, the ALJ will recommend that the representative not share the evidence with the claimant due to a possible detrimental impact on the claimant's health and that the representative discuss the evidence with the claimant only in general terms.
If the claimant is unrepresented, the ALJ will give the claimant the opportunity to examine the evidence in the HO or, if more convenient to the claimant, in the servicing field office (FO). See HALLEX I-2-7-30 C below for instructions on proffering through the FO. Although the claimant has a right to examine the evidence, any HO staff involved with presentation of the evidence to the claimant will make all reasonable efforts to ensure that a relative or friend accompanies the claimant.
C. Response Received
1. Claimant Requests Additional Time, Supplemental Hearing, or Opportunity to Question Author of Evidence
If, in response to a proffer of evidence, a claimant requests additional time to submit comments, the ALJ will use the procedures in HALLEX I-2-7-20.
If the ALJ offered the opportunity for a supplemental hearing with proffered evidence and the claimant requests a supplemental hearing, the ALJ must grant the request unless the ALJ has already decided to issue a fully favorable decision. The ALJ must grant the request even if the opportunity for a supplemental hearing was offered by mistake. If the claimant requests a supplemental hearing when the ALJ appropriately did not offer the opportunity, the ALJ has discretion to determine whether to grant the request. When the ALJ determines a supplemental hearing is not necessary, he or she will respond to the claimant in writing and associate the writing with the claim(s) file as an exhibit. (If it does not cause unreasonable delay and is appropriate based on the circumstances, the ALJ may address the issue in his or her decision rather than in a separate writing).
If the claimant asks to question a medical or vocational expert who has responded to interrogatories, the ALJ will use the procedures in HALLEX I-2-5-44 or I-2-5-58, as applicable. If the claimant requests an opportunity to question any other author(s) of posthearing evidence, the ALJ will evaluate whether questioning the author is necessary to inquire fully into the matters at issue. If it is necessary, the ALJ will determine whether to conduct the questioning through live testimony or written interrogatories. Generally, an ALJ will not use interrogatories when there may be difficulty anticipating the questions that will arise.
If the ALJ asks the author to appear for questioning and the author declines to appear voluntarily, see HALLEX I-2-5-78.
If the ALJ requests information from a Disability Determination Services (DDS) staff physician, consultative examiner, or DDS or FO personnel, HO staff will use an “assistance request.” For more information on other component responsibilities on receipt of an assistance request, see generally Program Operations Manual System DI 29501.
2. Addressing Comments Received
The ALJ will address any comments on the proffered evidence in the rationale of the written decision. If the claimant objects to the proffered evidence, the ALJ will make a formal ruling, either in the decision or by separate order. If the ALJ addresses an objection in a separate order, the ALJ must provide the claimant and appointed representative, if any, with a copy of the order. The ALJ will also add the order to the record.
Proffer Through the FO
In unusual circumstances, such as when evidence may be detrimental to a claimant's health and the claimant is unrepresented, or when the claimant would be required to travel a significant distance to the HO but lives near an FO, the ALJ may determine it is best to proffer the evidence through the FO. In this situation, the ALJ will send a letter to the claimant advising him or her of the procedure. See HALLEX I-2-7-93 for a sample letter. The letter will advise the claimant of the following:
The right to examine and comment on the evidence;
The right to submit additional evidence or refute the new evidence;
The right to ask the ALJ to send the evidence to the claimant's treating physician for comments;
The right to request a supplemental hearing (if applicable under HALLEX I-2-7-1);
The right to request the opportunity to question the author of any posthearing report;
A statement that the FO will not be able to discuss the material because the case is before the ALJ; and
A statement that the FO will provide the claimant a 10-day timeframe to examine the evidence.
Because the ALJ is not sending the additional evidence to the claimant in this situation, HO staff will prepare a list of the additional evidence to accompany the letter. For a sample list, see HALLEX I-2-7-94.
Additionally, regardless of whether the claim(s) file is electronic or paper, HO staff will send a memorandum to the FO, asking the FO to assist in arranging a 10-day timeframe for the claimant to examine the additional evidence. For sample memorandum language, see HALLEX I-2-7-95. With the memorandum, HO staff will send the following:
A copy of the ALJ's letter to the claimant;
A list of additional evidence;
A copy of the proffered evidence; and
An attachment to document that the claimant has reviewed the evidence (see HALLEX I-2-7-96).