TN 19 (06-23)

DI 33015.035 Beneficiary's (or Recipient's) Right to Post-Hearing Evidence

Citations: 20 CFR 404.916(f), 20 CFR 416.1416(f) 20 CFR 404.911(b), 20 CFR 416.1411(b),

A. Right to post-hearing evidence

If the Social Security Administration (SSA) or the disability hearing unit (DHU) obtains evidence, for any reason, after the hearing, and all evidence supports an unfavorable determination, SSA or the DHU must proffer the evidence to the beneficiary (or recipient) and give the beneficiary (or recipient) an opportunity to comment on the evidence and request a supplemental hearing.

NOTE: To proffer means to provide an opportunity for the beneficiary (or recipient) and appointed representative, if any, to review the additional evidence.

This instruction applies to all post-hearing evidence obtained by SSA or the DHU, including medical or psychological consultant information.

B. Procedure for proffering post-hearing evidence

1. Notifying the beneficiary (or recipient)

  1. a. 

    Forward a copy of the post-hearing evidence to the beneficiary (or recipient) and appointed representative.

  2. b. 

    Show the source of the post-hearing evidence and the source's title, if applicable. Include:

    1. 1. 

      an explanation of what the evidence shows and how it could affect the determination,

    2. 2. 

      the right to submit comments or a rebuttal within 10 days of the receipt of this notice, and

    3. 3. 

      the right to request a supplemental hearing within 10 days of the receipt of this notice.

2. After the DHU notifies the beneficiary (or recipient)

  1. a. 

    Allow the beneficiary (or recipient) 10 days from receipt of the notice to submit comments, either in writing or by telephone.

  2. b. 

    Grant additional time if there is good cause, as set forth in 20 CFR 404.911 and 416.1411, for doing so. Examples of good cause may include but are not limited to:

    1. 1. 

      serious illness of the beneficiary (or recipient),

    2. 2. 

      death or serious illness of immediate family,

    3. 3. 

      important records destroyed or damaged by accidental cause,

    4. 4. 

      inability to find necessary information to support the claim within stated time period despite trying very hard to do so,

    5. 5. 

      notice was not received,

    6. 6. 

      beneficiary (or recipient) response was sent to another government agency in good faith within time limit, or

    7. 7. 

      unusual or unavoidable circumstances.

  3. c. 

    If the beneficiary (or recipient) believes it is necessary to have a supplemental hearing, one may be scheduled at their request.

  4. d. 

    Evaluate and consider comments and rebuttals in finalizing the hearing determination.

  5. e. 

    Issue the hearing determination if the beneficiary (or recipient) does not respond in the 10-day time frame.

3. Annotating post-hearing evidence in the folder

  1. a. 

    Annotate all evidence obtained after the hearing as "Post-Hearing Evidence".

  2. b. 

    Also annotate "Not Shared with Claimant" on post-hearing evidence that was not shared with the beneficiary (or recipient) because a fully favorable determination was issued. (This is necessary in case the review component proposes to overturn the DHO determination, i.e., the evidence will then have to be shared.)

NOTE: In electronic cases, make the annotations in the "Notes" section of eView.

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DI 33015.035 - Beneficiary's (or Recipient's) Right to Post-Hearing Evidence - 06/08/2023
Batch run: 06/08/2023