I-3-2-17.Handling Proffer Issues When Evidence Was Received at Hearing Level
Last Update: 4/1/16 (Transmittal I-3-134)
A. Proffer At the Hearing Level
Detailed information about the definition of proffer, when an administrative law judge (ALJ) must proffer evidence, and when an ALJ will offer a supplemental hearing based on proffered posthearing evidence is set forth in Hearings, Appeals and Litigation Law (HALLEX) manual I-2-7-1. For prehearing proffer procedures, see HALLEX I-2-5-29.
Posthearing exhibiting issues are closely related to posthearing proffer issues. Hearing office staff should not exhibit evidence after the ALJ issues his or her decision. See HALLEX I-2-7-35. If the Appeals Council (AC) finds that hearing office staff is exhibiting evidence after the ALJ has issued a decision, it should refer the matter to the Executive Director's Office using the instructions in HALLEX I-3-3-20 B.
B. ALJ Did Not Proffer Evidence
The AC will grant review and take appropriate corrective action if an ALJ did not proffer:
A posthearing consultative examination report;
Responses to interrogatories sent to a medical or vocational expert (even if the interrogatories were obtained prehearing); or
Other opinion evidence.
When an ALJ does not adhere to policy in proffering other evidence not listed above, the AC will evaluate whether non-adherence resulted in a due process violation. If a due process violation occurred, the AC will find there is a basis for granting review present and take appropriate corrective action.
In some cases, the AC may find it appropriate to proffer the evidence itself, but proffering evidence does not necessarily mean the AC is granting review. For example, if the ALJ did not rely on the evidence in the decision and the non-proffered evidence does not show a reasonable probability that the outcome of the decision would change, the AC may find it appropriate to proffer the evidence and thereafter deny review (assuming no other basis for granting review is present). In this situation, the analyst will use the COR 21 template in the Document Generation System and, if warranted based on the particular circumstances, modify the letter as needed.
If it is unclear who submitted evidence posthearing and whether the claimant had the opportunity to review it, the AC will generally assume the ALJ should have proffered the evidence and evaluate whether a basis for granting review is present.
C. ALJ Does Not Offer Opportunity for Supplemental Hearing
There are a limited set of circumstances in which an ALJ does not need to offer a supplemental hearing with proffered posthearing evidence. See HALLEX I-2-7-1. Generally, an ALJ need not articulate reasons in the decision for not offering a supplemental hearing when these circumstances are clearly present. However, the AC may find a basis for granting review is present if the ALJ did not offer a supplemental hearing and there is a legitimate concern about whether a supplemental hearing was necessary to protect a claimant's due process rights.
Additionally, if an ALJ offers the opportunity for a supplemental hearing when proffering evidence, the ALJ must grant a claimant's request for a supplemental hearing. However, if a claimant requests a hearing when it was appropriately not offered, the ALJ has discretion in granting the request. See HALLEX I-2-7-1.