I-4-3-84.Appeals Council Decisions — Profert

Last Update: 9/13/05 (Transmittal I-4-15)

A. General

Before a document can be entered into the administrative record, the claimant or representative must be aware of its existence and contents and must be given an opportunity to comment on its contents or object to its inclusion in the record.

  1. If a document was submitted by the claimant, by the representative, or by someone at the request of the claimant or representative, it may be assumed that the claimant or representative is aware of the document and its contents and does not object to its admission into the administrative record. The analyst must:

    • Mark it as an AC exhibit.

    • Include it in the Exhibit List attached to the AC decision.

  2. If a document was obtained at the request of the AC which the claimant and representative has not examined, it must be proffered to the claimant's representative, or the claimant if proceeding pro se, i.e., unrepresented, before it can be entered into the administrative record. In such situations the analyst must:

    • Mark the document as an AC exhibit.

    • Prepare a profert letter.

B. Notice of Profert

  1. If the claimant is represented, the analyst must address the profert letter to the claimant's representative with a copy to the claimant. The analyst must send a copy of each proposed AC exhibit which the claimant or representative has not previously examined to the representative with the letter. It is not necessary to also send copies of the documents to the claimant.

  2. If the claimant is pro se, the analyst must address the letter, with copies of the proposed exhibits, to the claimant.

  3. If the claimant is pro se and has a significant mental impairment or the document(s) being proffered is confidential or, in the analyst's opinion, may be detrimental to the claimant's health, the analyst must proffer the evidence through the claimant's servicing FO. The analyst must:

    • Mark the document as an AC exhibit.

    • Prepare a memorandum to the FO (see I-4-3-114 and attach a copy of the proposed exhibit(s) (see I-4-3-113) as well as an Examination of Evidence form (see I-4-3-115).

    • Prepare a letter to the claimant advising him or her of the profert procedure and enclose a list of the proposed exhibits (see I-4-3-112).

    NOTE:

    In all profert situations involving medical opinions from a MSS physician, the analyst must submit the opinion and profert letter to the AC for approval by the AAJ. In other profert situations, the letter is released over the analyst's signature.

  4. If the AC is simultaneously proffering evidence and advising the claimant (and counsel) of a proposed favorable action, the AC will send a combined “propose-to-find” and profert letter which covers both issues.