I-3-5-80.Additional Evidence or Legal Arguments or Contentions

Last Update: 9/08/05 (Transmittal I-3-36)

A. General

The paragraph(s) the analyst prepares for inclusion in the notice of denial of a request for review of an Administrative Law Judge's dismissal will depend upon the basis of the dismissal and the issue(s) to which the evidence or argument pertains.

  1. Describe and discuss additional evidence or arguments which are received in connection with the request for review of a dismissal, and which relate to matters before the Appeals Council, in the denial notice. The analyst must explain the reason why the evidence or arguments do not change the dismissal action taken by the Administrative Law Judge or warrant granting review.

  2. When the additional evidence or argument does not pertain to a matter before the Appeals Council, the analyst will prepare a referral paragraph to be included in the denial notice.

B. Additional Evidence or Argument Relates to Whether Dismissal is Proper

Evidence or arguments submitted with the request for review of a dismissal, which are relevant to matters before the Appeals Council in connection with a request for review, are those which relate to whether the dismissal action was proper, i.e., whether there is a basis for review and/or good cause for vacating a dismissal. The analyst will draft insert paragraphs to discuss the evidence or argument in the denial notice.

NOTE:

See I-3-5-90, Exhibit for temporary instructions regarding the requirement for detailed discussion of evidence and contentions in denial notices.

C. Additional Evidence—Dismissal Based on Administrative Res Judicata

Evidence submitted with the request for review may relate to the merits of the prior determination or decision which stands as the Commissioner's final decision. After the Appeals Council denies the request for review, the Council generally refers this evidence to the Administrative Law Judge or appropriate SSA component which made the final determination or decision (unless the Appeals Council has jurisdiction) to consider whether reopening and revision is warranted. However, when the ALJ dismisses a R/H on the basis of administrative res judicata, the ALJ has considered the matter of reopening and revision as part of the finding that administrative res judicata was applicable. When the additional evidence received by the Appeals Council in connection with a request for review does not warrant reopening, the analyst must draft language for insert paragraphs explaining why the evidence does not constitute new facts, and does not preclude application of administrative res judicata.

EXAMPLE

“In reaching this conclusion, the Appeals Council considered the report submitted from the Mooreboro Hospital concerning your December 1998 hospitalization and surgery for an intestinal obstruction. Although you may be severely impaired at present, there is no indication that this condition existed on or before March 31, 1984, when you last met the disability insured status requirements. Because this report is not material or relevant to the matters decided in the decision on your prior application, it does not change the facts upon which the decision was based.”

NOTE:

See I-3-5-90, Exhibit for temporary instructions regarding the requirement for detailed discussion of evidence and contentions in denial notices.

D. Additional Evidence to be Referred to Administrative Law Judge or Other SSA Component—Dismissal Based on Other than Administrative Res Judicata

When additional evidence relates to the merits of the case and the ALJ dismissed the R/H for a reason other than administrative res judicata, the Appeals Council will forward such evidence to the SSA component which made the prior final determination or decision to consider the reopening question (unless the Appeals Council has jurisdiction to consider the question of reopening and revision of a prior final decision).

The analyst must include a paragraph to this effect in the denial notice. See Appeals Text Guide. The analyst is responsible for assuring that Form HA-505 (Transmittal by Office of Hearings and Appeals) is prepared to route the evidence from the Appeals Council to the appropriate SSA component.

The following blocks must be checked on the HA-505: “Claim File”; “Decision or Order”; and “Other”.

Include the following under “Remarks”:

Additional evidence submitted with the claimant's request for review is being forwarded for your consideration to determine whether it warrants reopening and revision of your prior (decision) (action). Please notify the claimant of your action.

After the branch support staff releases the denial notice, the HA-505, will be stapled to the front of the file along with the additional evidence, and a copy of the Appeals Council's denial notice will be forwarded to the appropriate SSA component.

Forward legal arguments or contentions relating to the merits of the case in the same manner as additional evidence, as described above, if a response is required. Any question as to whether a response is required should be resolved in favor of referring the arguments or contentions. The analyst must modify the remarks on the HA-505 as appropriate to show that a brief or other statements are being referred.