I-4-2-20.Evidentiary Documents (Exhibits)
Last Update: 5/1/17 (Transmittal I-4-71)
Section 205(g) of the Social Security Act provides that when an individual files a civil action seeking judicial review of the Commissioner's final decision, the Commissioner shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based.
In most circumstances, the administrative law judge (ALJ) or the Appeals Council (AC) will identify any evidence upon which a finding and decision are based as an “Exhibit.” However, the AC may receive additional evidence that it cannot consider in relation to the ALJ decision because the claimant does not meet one of the good cause exceptions set forth in 20 CFR 404.970(b) and 416.1470(b). For information about additional evidence at the AC, see the Hearings, Appeals and Litigation Law (HALLEX) manual I-3-3-6. In those circumstances:
The AC will specifically describe the evidence in the AC denial notice or decision, but will not designate the materials as exhibits; and
The documents will be included in the administrative record that is prepared by Court Case Preparation and Review Branch (CCPRB) staff but will not be exhibited. For more information on when the AC exhibits additional evidence, see HALLEX I-3-5-20 A. The evidence will be added to the administrative record as procedural documents, similar to the hearing decision or AC denial notice.
In any other circumstance, CCPRB staff will not place in the administrative record evidentiary material that the ALJ or the AC has not identified as an exhibit.
A. Reviewing and Marking Exhibits
When the AC designates additional evidence as an exhibit, the AC will attach an exhibit list to the AC denial notice. Exhibited documents become a part of any administrative record prepared by CCPRB staff.
If preparing consolidated paper and electronic cases or consolidated electronic cases, please consult with a CCPRB chief to ensure all necessary documents are exhibited.
1. Electronic Case
In an electronic case, the ALJ or AC will have already designated and marked most exhibits. If the exhibits have been designated but not marked, CCPRB staff will permanently mark the exhibits by using the appropriate function at the Exhibit List tab in eView.
If either the ALJ or AC clearly considered a particular document an exhibit, but did not add the document to the Exhibit List in eView, CCPRB staff will add the document to the Exhibit List in eView and permanently mark the item as an exhibit. If the court records assistant (CRA) is uncertain whether either the ALJ or AC admitted a particular document to the record, the CRA will seek the input of a CCPRB analyst.
2. Paper Case
When a paper case is involved, the CRA will place exhibits into the record in the order in which they were admitted by the ALJ or AC. The CRA will then mark the exhibits consecutively.
The CRA will compare the actual exhibit with its description on the exhibit list to ensure that each document has the proper exhibit number and that the exhibit list description shows correct names, dates, and number of pages.
If the ALJ or AC inadvertently gave the same exhibit number to two different exhibits, the CRA will designate the first document as “A” and the second document as “B” on both the exhibit list and the actual exhibit. However, if the ALJ or AC decision cites the duplicate exhibit number, the CRA will not alter the exhibits or the list. Rather, at the bottom of the exhibit list, the CRA will include the statement, “Note: Exhibit numbers have been inadvertently duplicated.”
If the actual exhibit contains more pages (or fewer) than are shown on the exhibit list, the CRA will annotate the exhibit list to show the correct number of pages.
The CRA will correct any typographical errors in names or dates on the list.
All exhibits must be legible, clearly marked, and complete. If there is an exhibit stamp on a document, the stamp must be left intact, unless the stamp is very small, very light, obscured by print, or on the very edge of a page. In these instances, the CRA will re-stamp the exhibit clearly and boldly. The CRA will carefully place the marking at least 1 inch from the edge of the page, preferably in the lower right corner. The CRA will not place the marking over print, unless it is unavoidable. Stamp only the first page of an exhibit. If the page has a dark background, the CRA places white tape on the document and writes the word “Exhibit” and the number on the tape. If the exhibit has a light stamp marking, the CRA will re-stamp it unless the marking is very small. When the marking is too small to re-stamp, the CRA simply traces over the writing to darken it.
When an exhibit stamp is so poor that typing or tracing is impractical, the CRA stamps “BEST COPY OBTAINABLE” (BCO). The CRA also stamps BCO on an exhibit that is legible but has a dark background.
B. Translation of Documents
The record must include an English translation of any document that contains a language other than English. However, when an aged case is due in court, the CRA will not delay the case because a translation has not been received.
In a paper case, the CRA will annotate in the record that a translation is not available and indicate that deficiency on the transcript index. In an electronic case, the CRA will note the absence of a needed translation in the certification page. The CRA will prepare a supplemental transcript after he or she receives the translation.
Any Spanish language documents that require translation will be assigned to the translators in the Division of Civil Actions. For documents in any language other than Spanish, the CRA will make a photocopy of the document, and will send a request to the Supervisory Legal Assistant (SLA), asking that the agency obtain a translation. The CRA will establish a 30-day diary in the Appeals Review Processing System (ARPS). The SLA will prepare the request for translation and annotate ARPS. If necessary, the SLA will follow-up on the translation request.
1. Receipt of Translation in an Electronic Case
In an electronic case, CCPRB staff will scan a translation into the section of eView where the translated document is located. For example, a translation of Exhibit 7E should be scanned into Section E of the electronic folder.
When creating the barcode in ARPS, CCPRB staff will be careful to correctly identify the translation for review when it appears in eView. The CRA will enter the metadata exactly as shown in eView for the un-translated document (i.e., document name, document date, and source). The CRA will always include Translation of Exhibit XX or Translation of Document (when a document has not been exhibited) in the “Note and Source” sections, as applicable. Finally, the CRA will check "Suppress to do item" when creating the barcode.
2. Receipt of Translation in a Paper Case
In a paper case, the CRA will place the translation in front of the original document and change the number of pages shown on the exhibit list to reflect the number of translated pages. If the exhibit list description does not show that the exhibit has a translation, the CRA will add the phrase “And Translation” following the description of the exhibit.
C. Stricken Exhibits
1. Electronic Case
If the CRA determines that a stricken exhibit is present as a marked exhibit, the CRA will consult with the SLA to redact the stricken exhibit from the electronic record.
2. Paper Case
If there is a line drawn through an exhibit on the exhibit list, the ALJ may have stricken it from the record. The CRA will verify by reviewing the oral hearing and will exclude any exhibits stricken from the record.
If the hearing transcript shows an exhibit was stricken from the record but it remains on the exhibit list, the CRA will line through the entry on the exhibit list.
Each stricken exhibit must be identified on the exhibit list as such. If an explanation is not present, the CRA will add “Stricken from the record by ALJ” on the exhibit list.
D. Exhibits or Documents Not Related to Claimant
If an exhibit or other document that forms part of the administrative record appears to pertain (in whole or in part) to an individual other than the claimant, the CRA will refer the case to a CCPRB analyst. The analyst will consider the impact of the evidence on the defensibility of the case and:
If the AC either erroneously relied on the information, or overlooked that the ALJ erroneously relied on the information, recommend that the AC request voluntary remand in the case.
When the evidence does not affect the defensibility of the case, return the case to the CRA. In some cases, it may be necessary for the CRA to redact certain material. If the entire exhibit pertains to another individual, the CRA will redact the entire document.
E. Special Considerations in Paper Cases
1. Missing Exhibit Lists
The CRA will ensure there is an exhibit list in all cases. When there is no exhibit list, or there is only a proposed exhibit list, the CRA will prepare the exhibit list in final form.
Additionally, when there is no finalized exhibit list, CRA should provide feedback to the branch that reviewed the claim at the request for review level. To provide feedback, the CRA will send an email (noting the claimant, Social Security number, and a brief description of the issue) to the CCPRB chief and CCPRB Division Director. The CCPRB Division Director will provide appropriate feedback to the Division Director of the reviewing branch.
2. Missing Exhibits
Generally, the CRA may not omit from the record an exhibit consisting of medical evidence when disability is an issue before the court. If an exhibit appears to be missing, the CRA will first check the hearing transcript to ensure that the ALJ or AC did not strike it from the record or that it is not in the file unmarked.
a. When It Is Unnecessary to Obtain the Missing Material
There are only two instances in which the CRA may prepare the administrative record without first attempting to obtain the missing material:
Exhibited procedural documents; and
Documents not pertinent to the issue before the court.
The CRA will exercise care when deciding whether it is unnecessary to obtain a missing exhibit. If it is unclear, the CRA should consult with the SLA. If the SLA is unable to determine whether a missing exhibit should be obtained, the case will be assigned to a CCPRB analyst for review.
The CRA will not delay preparation of the record or attempt to obtain the missing document if it is merely procedural. For example, the CRA will not delay preparation of the record for a missing request for hearing or an application for a Social Security number. However, the CRA will indicate on the index and exhibit list that the documents are missing and will modify the certification accordingly.
If the case is concurrent and the claimant is appealing only one claim in court, the CRA may consider the record complete if all exhibits pertaining to the litigated claim are available. As the record is considered complete, the standard certification is appropriate (see HALLEX I-4-2-30 B). However, the CRA will annotate the exhibit list with an asterisk (*) next to the missing exhibit and place the following footnote at the bottom of the page, “*This exhibit is not available and is not pertinent to the title ____ claim.”
b. General Procedures for Obtaining Missing Documents
If the CRA finds that preparation of the administrative record should await receipt of a missing document, he or she will submit the case and particulars to the SLA, who will attempt to get the missing documents.
If the missing exhibit is a statement of professional qualifications of a physician, the CRA will attempt to obtain it by accessing the appropriate reference sources.
If the missing exhibit is a vocational expert resume, the CRA will attempt to obtain it from the Office of Hearings Operations Regional Office servicing the hearing office that handled the claim. The CRA will make the request by telephone and ask for the resume by fax or in an email attachment.
If the CRA must release an incomplete administrative record because of a court deadline, he or she will prepare a modified certification and an annotated index. The CRA will clearly mark the folder containing the partial certified administrative record (CAR) in red ink as follows:
RETURN TO: _______________
In addition, the CRA will create a Request for Reprographic Services when sending the record to be printed for the court and the Office of the General Counsel. The CRA will hold the claim(s) file shell and place a copy of the reprographic request form on the outside of the shell to match when the file duplication is complete.
After completion, reprographics staff will return the disc and required copies requested to the CCPRB.
c. Follow-up Action When Incomplete Record Is Certified
When the reprographics staff returns the exhibits and CARs, the CRA will update the claims file and take the claim(s) file to the SLA.
The SLA will:
Assist the CRA to obtain the missing material.
Contact, or indicate that the CRA will contact, the appropriate office or persons for the missing information.
In a paper claim(s) file, document any telephone calls with dates, names of contact persons, name of the person(s) placing the call, and any other relevant information in a “Memorandum for the File,” used for follow-up or until the material is received.
In an electronic claim(s) file, enter a Remark in ARPS noting any telephone calls with dates, names of contact persons, name of the person(s) placing the call, and any other relevant information.
When requesting documents via mail, the following address will be provided:SOCIAL SECURITY ADMINISTRATION
OFFICE OF APPELLATE OPERATIONS
5107 LEESBURG PIKE
FALLS CHURCH, VA 22041
The CRA enters all actions on these cases in ARPS and follows up weekly until the branch prepares a supplemental record or investigation shows that the documents are not available.
When the missing evidence is received, a supplemental record must be prepared. If the CRA receives no positive responses after several attempts to locate the missing materials, the CRA will inform the SLA that he or she has not obtained the missing materials. The SLA will bring the matter to the attention of the CCPRB chief if, after two weeks, the missing materials cannot be located or obtained.
3. Duplicate Exhibits
If there is a duplicate exhibit, the CRA will mark the duplicate exhibit in pencil as “Duplicate of Exhibit ______.”
A partial duplicate is marked as “Duplicate of page ___, Exhibit ___.”
4. Exhibiting Non-Standard Sized Documents
a. Smaller Than Standard Letter Size
The CRA will mount any document that is smaller than a standard letter (8 1/2" × 11") on bond paper, using transparent tape. Staples should not be used. The CRA will punch holes in the bond paper, making it easier to re-file after photocopying is complete. After mounting the document, the CRA will write the number of pages for that particular exhibit in pencil on the exhibit list.
If the CRA cannot mount an exhibit with its heading at the top of the page, the CRA will mount the exhibit with its heading parallel to the left margin. Documents must be mounted carefully so that the bound record does not obscure any print.
The CRA cuts out, mounts on only one side of bond paper and re-stamps exhibits that are photocopies of small documents having a very dark background. This ensures a more presentable record and provides a clear background for the page numbers.
The CRA will be careful to mount exhibits in the correct sequence, especially when mounting exhibits such as EKG tracings.
b. Oversized Documents
The staff responsible for photocopying must reduce oversized exhibits (documents up to 8 1/2" × 14" in size) to standard size.
If a document is so large that reduction is not possible, such as pulmonary function studies, the CRA will carefully cut the material to the appropriate page size. The CRA will exercise care to avoid separating special notes or comments when the material is cut, and will change the number of pages on the exhibit list for that particular document.
5. Obtaining Legible Copies by Retyping or Tracing Documents
a. Actions Before Retyping or Tracing
In some cases, it may be necessary to trace or retype copies of certain documents because the document is illegible. However, before retyping or tracing documents, the CRA will:
Check to see if the file contains a more legible copy of the document.
Evaluate whether the document would be legible with lighting adjustments. If yes, the CRA will flag documents for the Reprographics staff by attaching a small notation to the document with the notation “Reprographics Staff: Special Attention, Please.”
Not request retyping or undertake tracing of voluminous in-patient notes if there is a summary report covering the period of hospitalization. Rather, the CRA will give special attention to summary reports of hospitalization, laboratory results, diagnoses, and prognoses.
Not attempt to make it more legible if the document is so old it has no relevancy to the current alleged onset date and the ALJ or AC does not cite the document in the decision. Rather, the CRA will simply stamp “BCO” on the exhibit. (However, the CRA will not stamp “BCO” on professional qualifications of medical experts or resumes of vocational experts. Rather, the CRA will prepare or obtain legible copies of professional qualifications of medical experts or resumes of vocational experts.)
Not delay a case for legibility if doing so prevents release of the record within the deadline the Office of the General Counsel specified.
b. Actions When Retyping or Tracing
The CRA will use caution in tracing or retyping illegible material to prevent changing the contents of the document. The use of a medical dictionary is often helpful. If the CRA cannot decipher a word or a portion of the material, it should be either left untraced or noted with a blank space. This avoids inserting an incorrect word that may change the meaning or value of the documents.
Retyped pages must be exact copies in content of the original document. Although it is preferable to retype material as closely to the original format as possible, all pages should have margins of at least 1 inch so that the bound record will not obscure any print. The typist will leave a blank space (e.g, [ ]) in the retyped text for each word that he or she cannot decipher. The following notation must appear in the 1-inch margin at the bottom of the page, “BEST TYPED COPY OF THE FOLLOWING PAGE FOR LEGIBILITY.”
If the original material will not fit within the 1-inch margin on the retyped page, the retyped page will continue on another page. In this instance, the following notation will appear in the 1-inch margin at the bottom of the page, “BEST TYPED COPY OF PAGE __, EXHIBIT __ FOR LEGIBILITY.”
If the retyped exhibit is only one page, the following notation must appear in the 1-inch margin at the bottom of the page, “BEST TYPED COPY OF EXHIBIT ______ FOR LEGIBILITY.”
The CRA will proofread all retyped material to ensure accuracy. The CRA will number both the retyped pages and the original exhibit pages when numbering the pages prior to printing (see HALLEX I-4-2-25 A). However, the number of pages of the actual exhibit will not change.
The CRA will not stamp “BCO” on any document that has been retyped for legibility (“BCO” should not be stamped on any document originating within the Social Security Administration). Rather, the CRA will add “Best Typed Copies” to the document and place any retyped pages in the record immediately in front of the original page.