Last Update: 12/27/12 (Transmittal I-3-45)
When a claimant or appointed representative submits additional evidence in association with a request for review, the Appeals Council (AC) must determine whether it is new, material, and relates to the period on or before the date of the administrative law judge (ALJ) decision. See HALLEX I-3-3-6. If the additional evidence meets these criteria, the AC will evaluate the entire record, including the additional evidence. The AC will review the case if it finds the ALJ's action, findings, or conclusion is contrary to the weight of the evidence currently of record. See 20 CFR 404.970(b) and 416.1470(b).
Prior to analyzing the case and preparing a recommended action for the AC, the analyst must determine whether the evidence is new and material, and relates to the period on or before the date of the ALJ decision. See HALLEX I-3-3-6.
If the analyst finds that any one of the three criteria is not present, the analyst does not consider the evidence when reviewing the record. If a review of the record, absent the additional evidence, suggests a denial of the request for review is appropriate, the analyst follows the instructions in section A, as applicable.
However, if the analyst finds that all three criteria are present, the analyst considers the evidence with the entire record. See HALLEX I-3-3-6. If a full review of the record, including the additional evidence, suggests a denial of the request for review is appropriate, the analyst follows the instructions in section B.
If the evidence is not new, material, or related to the period at issue, (HALLEX I-3-3-6), the analyst prepares a denial notice and, as applicable, will:
Address the evidence in the Appeals Review Processing System (ARPS) analysis.
If the evidence is duplicative, the analyst will note the location of the evidence in the record.
If the evidence is not material or does not relate to the period at issue, the analyst will explain why in the analysis.
Not exhibit the evidence.
Associate a copy of the evidence with the file in the F section. The evidence must be clearly described in the metadata (e.g., complete the Note, Source, and Date To and From fields) and will be included in the certified administrative record if the case is appealed to Federal court.
If electronically submitted evidence does not appear in the F section, the analyst will move the evidence to the F section and include a detailed description of the evidence in the metadata.
Include language in the denial notice specifically identifying the additional evidence (by source, date range, and number of pages) and stating, as applicable:
The AC did not consider it because the evidence was not new and/or material. When appropriate, the analyst will identify the evidence as duplicate, but not exhibit the evidence.
The evidence is being returned because it does not relate to the period on or before the date of the ALJ decision, and the agency will use the date of the request for review as a protective filing date if the claimant files a new application within 6 months of the date of the AC denial notice in title II claims or 60 days of the date of the AC denial notice in title XVI claims.
Protective filing language is especially critical in light of Social Security Ruling (SSR) 11-1p: Titles II and XVI: Procedures for Handling Requests to File Subsequent Applications for Disability Benefits. Under SSR 11-1p, the agency will not accept a new disability application if the claimant has a prior disability claim for the same title and benefit type pending at any level of administrative review, unless the prior claim is pending at the AC and the claimant has evidence of a new critical or disabling condition with an onset after the date of the hearing decision. See also POMS DI 51501.000.
The evidence must be returned by mail regardless of who submitted the evidence, whether the file is electronic or paper, or whether the representative has online access to the electronic folder.
In situations where the new evidence is offensive or detrimental to the claimant"s health and was not submitted directly by the claimant, the analyst must discuss the matter with the branch chief before taking any action to return the evidence.
Prepare a denial notice.
Include language in the denial notice specifically identifying the evidence (by source, date range, and number of pages) and explaining the evidence did not provide a basis for granting review under the "weight of the evidence" standard. See 20 CFR 404.970 and 416.1470; HALLEX I-3-3-6.
Exhibit the evidence and prepare an exhibit list with the accompanying order.
Paper files are exhibited in the same manner as electronic files. For example, if the AC adds an exhibit in the F section of a paper file that has existing exhibits 1F-14F, the new exhibit should be numbered 15F.