I-3-2-17.Handling Proffer Issues Regarding Evidence Received at the Hearing Level

Last Update: 2/1/24 (Transmittal I-3-195)

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 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.

NOTE:

Posthearing exhibiting issues are closely related to posthearing proffer issues. Hearing office staff should not exhibit evidence after the ALJ issues a decision. See HALLEX I-2-7-35. If the Appeals Council (AC) finds that hearing office staff are exhibiting evidence after the ALJ issues a decision, the AC 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

Unless the ALJ issued a fully favorable decision (see HALLEX I-2-7-1 B) or the claimant waived the right to examine posthearing evidence and the opportunity to request a supplemental hearing (see HALLEX I-2-7-15), the AC will grant review and take appropriate corrective action if an ALJ did not proffer:

  • A consultative examination report received after the hearing;

  • Responses to interrogatories sent to a medical or vocational expert (even if the responses were obtained prehearing, see HALLEX I-2-5-29 B); or

  • Other opinion evidence received after the hearing, unless the evidence is submitted by the claimant or the appointed representative and there is no other party to the hearing (see HALLEX I-2-7-1 B).

When an ALJ admitted evidence other than the types specifically listed above into the record but did not proffer that evidence, the AC will consider the facts of the case and the evidence at issue in determining whether to take corrective action.

NOTE:

If it is unclear who submitted evidence after the hearing and whether the claimant had the opportunity to review that evidence, the AC will generally assume the ALJ should have proffered the evidence and will evaluate whether to take corrective action.

C. ALJ Proffered Evidence But Did Not Offer a Supplemental Hearing

There are limited circumstances in which an ALJ does not need to offer a supplemental hearing in conjunction with proffering posthearing evidence. See HALLEX I-2-7-1. Generally, when these limited circumstances are clearly present in the record, the ALJ is not required to articulate in the decision the reasons for declining to offer a supplemental hearing. However, 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, the AC may decide to grant review.

Additionally, the ALJ must grant a claimant's request for a supplemental hearing if the ALJ offered a supplemental hearing when proffering the evidence, even if the ALJ offered the supplemental hearing in error. See HALLEX I-2-7-1 C. However, if a claimant requests a supplemental hearing when the ALJ did not offer one and the ALJ was not required to offer one, the ALJ has discretion on whether to grant the claimant's request. See HALLEX I-2-7-1.