I-4-2-20.Evidentiary Documents (Exhibits)
Last Update: 6/26/23 (Transmittal I-4-93)
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.
NOTE:
When the claimant is seeking judicial review of a dismissal, staff should follow the directions in Hearings, Appeals and Litigation Law (HALLEX) manual I-4-2-10 E that relate to preparing a limited certified administrative record.
In most circumstances, the administrative law judge (ALJ) or the Appeals Council (AC) will identify as an “exhibit” any evidence upon which a finding and decision are based. However, the AC may receive additional evidence that it does not consider in relation to the ALJ decision because it is not new, material, or related to the period on or before the hearing decision, or the claimant does not meet one of the good cause exceptions set forth in 20 CFR 404.970(a)-(b) and 416.1470(a)-(b). (For guidance on additional evidence at the AC, see HALLEX 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. The evidence will be added to the procedural section of the CAR, similar to the hearing decision or AC denial notice.
CCPRB staff may discover additional evidence either in the file or in newly associated correspondence that the AC has not yet considered. In those situations, CCPRB staff should follow the instructions set forth in I-4-1-15 D and I-4-4-25. If the AC received additional evidence or newly associated correspondence before the AC's action, it will be added to the procedural section of the CAR. However, if the AC received additional evidence or newly associated correspondence after the AC's last action, it will not be included in the administrative record.
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.
NOTE:
If preparing consolidated paper and electronic cases or consolidated electronic cases, please consult with a branch chief to ensure all necessary documents are exhibited.
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.
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 and permanently mark the item as an exhibit. If the court legal assistant is uncertain whether the ALJ or AC admitted a particular document to the record, the court legal assistant will seek the input of a CCPRB analyst.
CCPRB staff will create a separate court transcript index (index) and will not mark or otherwise alter the original exhibit list. The index will contain the same exhibits as the original exhibit list. CCPRB staff 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 description on the index shows correct names, dates, and number of pages.
If the ALJ or AC inadvertently gave the same exhibit number to two different exhibits, CCPRB staff will designate the first document as “A” and the second document as “B” on both the index and the actual exhibit. However, if the ALJ or AC decision cites the duplicate exhibit number, CCPRB staff will not alter the exhibits or the exhibits' designation on the index. Rather, at the bottom of the index, CCPRB staff will include the statement, “Note: Exhibit numbers have been inadvertently duplicated.”
For paper cases only, if the actual exhibit contains more or fewer pages than are shown on the exhibit list, CCPRB staff will annotate the index to show the correct number of pages.
CCPRB staff will correct any typographical errors in names or dates on the index.
For paper cases only, 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, CCPRB staff will mark the exhibit clearly. CCPRB staff will mark the exhibit at least one inch from the edge of the page, preferably in the lower right corner. CCPRB staff will not place the marking over print, unless doing so is unavoidable. CCPRB staff will stamp only the first page of an exhibit.
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 court legal assistant will not delay the case because a translation has not been received.
NOTE:
For paper cases only, CCPRB staff will annotate in the record that a translation is not available and indicate that deficiency on the transcript index and certification page. The court legal assistant will prepare a supplemental transcript after the court legal assistant receives the translation.
Any Spanish language documents that require translation will be assigned to the translators in the Division of Civil Actions or sent to an outside contractor. For documents in any language other than Spanish, the court legal assistant will send a request to the supervisory legal assistant (SLA), asking that the agency obtain a translation. The court legal assistant 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 Translations
CCPRB staff will add a translation to the section of the claim(s) folder where the translated document is located. For example, a translation of Exhibit 7E should be added to Section E of the claim(s) folder.
After the translated document is added to the claim(s) folder, the index will list the translated document as “Translation of Exhibit XX” or “Translation of Document” (when a document has not been exhibited), as applicable.
C. Stricken Exhibits
If the court legal assistant determines that a stricken exhibit is present as a marked exhibit, the court legal assistant will consult with the SLA to redact the stricken exhibit from the electronic record.
If there is a line drawn through an exhibit on the exhibit list, the ALJ may have stricken it from the record. CCPRB staff will verify that this is the case by reviewing the hearing transcript 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, CCPRB staff will, on the index, identify the exhibit as stricken by adding the words “Stricken from the record by ALJ.”
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 court legal assistant 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 erroneously relied on the information or did not take action on the ALJ's erroneous reliance on the information, recommend that the AC request voluntary remand in the case, and send the recommendation to an Administrative Appeals Judge (AAJ).
When the evidence does not affect the defensibility of the case, recommend that the certified administrative record be prepared, and send the recommendation to an AAJ. If the AAJ agrees with the recommendation, the analyst will return the case to the court legal assistant. If any pages contain material that belongs to an individual other than the claimant, CCPRB staff will redact any material that does not belong to the claimant. CCPRB staff will prepare and include at the place of the redaction a notation explaining that the redacted material pertains to an individual other than the claimant. If the entire page or exhibit pertains to another individual, CCPRB staff will remove the entire page or document from the record.
E. Special Considerations
1. Missing Exhibit Lists
CCPRB staff will ensure there is an exhibit list in all cases. When there is no exhibit list, or there is only a proposed exhibit list, CCPRB staff will prepare the final exhibit list.
Additionally, when there is no finalized exhibit list, CCPRB staff should notify the CCPRB branch chief and division director. The CCPRB staff will send an email to the CCPRB chief and the division director identifying the claimant, and Social Security number and providing a brief description of the issue. The division director will provide appropriate feedback to the branch that processed the claim at the request for review level.
2. Missing Exhibits
Generally, CCPRB staff 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, CCPRB staff will 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
CCPRB staff may prepare the administrative record without first attempting to obtain the missing material if the missing material is either:
Exhibited procedural documents; or
Documents not pertinent to the issues before the court.
If CCPRB staff finds that it is unnecessary to obtain the missing exhibit, the CCPRB staff must consult with the SLA, who will assign the case to a CCPRB analyst for review. If the missing exhibit would affect the defensibility of the case, the analyst will recommend that the AC request voluntary remand in the case and will send the recommendation to an AAJ.
If the missing exhibit does not affect the defensibility of the case, the analyst will recommend that the certified administrative record be prepared and send the recommendation to an AAJ. If the AAJ agrees with the recommendation, the analyst will return the case to the court legal assistant or SLA to continue to prepare the CAR.
CCPRB staff will not delay preparation of the record or attempt to obtain the missing document if it is merely procedural. For example, CCPRB staff will not delay preparation of the record because of a missing request for hearing. However, the CCPRB staff will indicate on the index 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, CCPRB staff 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).
b. General Procedures for Obtaining Missing Documents
If preparation of the administrative record requires the missing document(s), CCPRB staff will submit the case and all necessary information to the SLA, who will attempt to obtain the missing document(s).
CCPRB staff will attempt to obtain the missing exhibit from the hearing office that handled the claim. CCPRB staff will make the request by email and ask for the missing exhibit by fax, in an email attachment, or uploaded to the electronic case file.
If CCPRB staff must release an incomplete administrative record because of a court deadline, they will prepare a modified certification and court transcript index.