Under most circumstances, proffer is not necessary when an
administrative law judge (ALJ) receives additional evidence before
the hearing from a source other than the claimant or the appointed
representative, if any. Proffer is not usually required because
other hearing procedures require that an ALJ provide the claimant
or representative an opportunity to review any information in the
claim(s) file before the hearing. See Hearings, Appeals and Litigation
Law (HALLEX) manual HA 01210.035.
However, if an ALJ agrees to take certain actions during a
prehearing conference, the ALJ must summarize the actions to be
taken in writing and proffer the writing to the claimant and representative.
See HALLEX HA 01210.075 E. Additionally, if the ALJ (or assisting staff) requested
interrogatories from a medical or vocational expert, and the received
responses would not result in a fully favorable decision, the ALJ
(or assisting staff) is required to proffer the evidence to the
claimant and appointed representative, if any. Proffer is necessary to
allow the claimant or appointed representative to object to or present
additional questions to the author of the evidence. Wherever possible,
the ALJ will proffer this evidence as soon as possible after receiving
the responses to avoid the possibility that the author of the evidence
will be unavailable to respond to additional questions.
If the author of opinion evidence
is unavailable when follow up questions are submitted, the ALJ will
carefully consider a claimant's or appointed representative's comments
or objections to the opinion and determine whether responses are
necessary for a full and true disclosure of the facts. If the comments
or objections raise legitimate concerns about the opinion, the ALJ
will consider this in evaluating the opinion
and address the issue in the decision. If objections are raised,
the ALJ must specifically rule on the objection in a writing marked
as an exhibit or on the record during the hearing. See HALLEX HA 01220.020 and HA 01250.044.
When proffering the evidence, the ALJ will use the same general
procedures for proffering posthearing evidence, as set forth in
HALLEX HA 01270.030.
When proffer occurs prehearing, there is no need for the ALJ to
offer the claimant the opportunity for a hearing at the time of the
proffer (i.e., a hearing will be subsequently scheduled unless a
fully favorable on-the-record decision is later warranted).
If an ALJ becomes aware of the
need to proffer prehearing evidence at or after the hearing, the
ALJ will take the steps necessary to proffer the evidence, and,
as required, offer a supplemental hearing. For more information
about proffer and supplemental hearings, see the instructions in
HALLEX HA 01270.001.