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

A. Definition of Proffer

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 he or she has not previously seen and that is associated with his or her claim(s) file. 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 the regulatory standard for considering additional evidence (see 20 CFR 404.970 and 416.1470), the Appeals Council (AC) does not proffer all evidence. The AC will proffer evidence that it receives from a source other than the claimant or the appointed representative, if any, when that evidence is associated with the claim(s) file.

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., the evidence may be new and related to the period at issue, but it is not material as explained in HALLEX I-3-3-6);

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

• The evidence 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); or

• The evidence is a duplicate copy of evidence already in the record.

C. When the AC Offers a Supplemental Hearing

The AC will offer a supplemental hearing with proffered evidence when the AC intends to grant review and 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 a proffer notice to the claimant and appointed representative, if any. 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 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.

When the AC initiates own-motion review based on a protest from an effectuating component or Regional Commissioner's office, the AC must proffer the protest memorandum to the claimant and representative, if any, unless the AC intends to issue a fully favorable decision (HALLEX I-3-6-20 B.2). In these cases, the AC must mail a copy of the protest memorandum to the claimant and representative, if any.

In all other cases, the AC may follow the following procedures when proffer is required:

• If the claimant is represented and the claim(s) file is electronic, the proffer notice will inform the representative that the new evidence is available for review through the Appointed Representative Services (ARS) portal.

• If the claimant is unrepresented and has a MySSA account and the claim(s) file is electronic, Office of Appellate Operations (OAO) staff will provide a copy of the new evidence to the claimant's MySSA message center. The proffer notice will inform the claimant that the evidence is available to review on their MySSA account.

• OAO staff will proffer a copy of the new evidence by mail to the claimant and representative, if any, when:

  • The claimant is represented, but the claimant's representative does not have access to the ARS portal;

  • The claimant is unrepresented and does not have a MySSA account; or

  • The claim(s) file is in paper format.

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 proffer the evidence only to the representative and advise the representative to exercise discretion in deciding whether to show the claimant the evidence. When the claimant is unrepresented, the AC may proffer the evidence through the claimant's servicing field office (FO). To proffer through the FO, OAO staff will:

• Prepare a memorandum to the FO and an Examination of Evidence document using the sample language in HALLEX I-3-2-18 A and B, along with a copy of the new evidence, to the FO; and

• Send a letter to the claimant advising him or her of proffer procedures, along with a list of additional evidence, using the sample language in HALLEX I-3-2-18 C and D.

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