I-3-2-16.Proffering Evidence Received by the Appeals Council

Last Update: 4/1/16 (Transmittal I-3-134)

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 the Appeals Council Proffers Evidence

Due to its appellate function and regulatory standard for considering additional evidence (see 20 CFR 404.970, 404.976, 416.1470, and 416.1476), the Appeals Council (AC) does not proffer all evidence. The AC will proffer evidence when:

  • It is received from a source other than the claimant or the appointed representative (if any); and

  • The AC intends to add the evidence to the record because it is new, material, and related to the period at issue (see definition in Hearings, Appeals and Litigation Law (HALLEX) manual I-3-3-6).

The AC will not proffer additional evidence when:

  • The AC is using the evidence to issue a fully favorable decision;

  • The evidence is for treatment of a common ailment (such as a cold or the flu) and the AC finds it is reasonable to presume the ailment is unrelated to the claimant's alleged impairment(s) (i.e., may be new and related to the period at issue, but is not material as explained in HALLEX I-3-3-6);

  • The evidence is merely a list of prescribed medications (even when new, material and related to the period at issue); or

  • The evidence technically meets the criteria in HALLEX I-3-3-6, but is substantively the same as other evidence already in the record (e.g., a nurse's note duplicating a doctor's note that is already part of the record).

NOTE:

Additionally, the AC will not proffer evidence when it remands a case because the AC does not exhibit additional evidence on remand. Rather, the ALJ provides the claimant the opportunity to review the additional evidence. See HALLEX I-2-1-35.

C. When the AC Offers a Supplemental Hearing

The AC will offer a supplemental hearing with proffered evidence when the evidence changes the weight of the record and the AC intends to issue a less than fully favorable decision. In that circumstance, the AC will advise the claimant that he or she may request that the AC remand the case to an ALJ for a new hearing.

D. Proffering Procedures

To proffer evidence, the AC sends the information to the claimant (and appointed representative, if any) with a written notice. In the notice, the AC will generally give the claimant 30 days from the date of the notice to object to, comment on or refute the evidence, or to submit any other written statement about the facts or law that the claimant believes apply in light of the evidence submitted. When applicable (see subsection C above), the AC will also tell the claimant that within 30 days, he or she may ask the AC to remand the case to an ALJ for a new hearing.

NOTE:

If combined with a grant review action, staff will use the appropriate interim grant review notice template in the Document Generation System (DGS) to prepare the written notice. If the proffer action is not combined with a grant review action, staff will use the COR 21 template in DGS when preparing the notice.

The AC must be mindful of new evidence that may be offensive or detrimental to the claimant's health. In this situation, the analyst will discuss the matter with the branch chief before taking any action to proffer the evidence. When the claimant is represented, the AC may elect to send the evidence only to the representative, inform the claimant that information was sent only to the representative, and advise the representative to exercise discretion in deciding whether to show the claimant the evidence. In other cases, such as when the claimant is unrepresented, it may be appropriate to proffer through the claimant's servicing field office (FO). To proffer through the FO, staff will:

  • Prepare a memorandum to the FO to send with a copy of the proposed exhibit(s) and an examination of evidence document; and

  • Send the claimant a letter advising him or her of proffer procedures with a list of the proposed exhibits.

Staff will diary the case for 30 days and follow up with the FO if a response is not received within that time period.

NOTE:

Because templates for proffering through the FO are not available in the Document Generation System, staff will refer to the sample documents in HALLEX I-3-2-18 when preparing these documents.