Proper Proffer Procedures

Sunday, July 26th, 2015

In some disability cases, the Social Security Administration (“SSA”) may ask one of its doctors, referred to as a Medical Expert (“ME”), to provide written answers to written questions, which are referred to as interrogatories. When an Administrative Law Judge (“ALJ”) receives an ME’s interrogatory responses, the ALJ must “proffer” the evidence to the disability claimant’s attorney. The purpose of the proffer is to provide the opportunity to object to, comment on, or refute the proffered evidence, submit written questions to the ME, or insist on the opportunity to cross-examine the ME.

I represent a 49 year old former typist seeking Social Security Disability (“SSD”) benefits. Prior to the hearing, the ALJ received interrogatory responses from an ME; however, the ALJ never proffered them to me in accordance with the SSA Hearing, Appeals, and Litigation Law Manual (“HALLEX”). I learned about the interrogatories when reviewing the SSA eFolder for the claimant.

The interrogatories provided for a less than sedentary work capacity, which corroborated the opinions of the claimant’s doctors that the claimant was disabled. A vocational expert (“VE”) at the hearing testified that based upon the interrogatory answers, the claimant was not capable of working.

The failure to follow proffer procedures raises two concerns. First, since all of the medical opinions supported the claimant’s entitlement to SSD benefits, why was a hearing needed? Because the ALJ did not proffer the evidence, did not approve SSD benefits without the need for hearing, and believed that testimony from a VE was needed, I had to assume that the ALJ would not accept the ME’s opinion. Second, if the responses had been unfavorable for the claimant, then the hearing would have deprived the claimant of due process.

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