I-3-5-20.Evaluation of Additional Evidence

A. General

Generally, the Appeals Council (AC) will consider additional evidence as a basis for granting review only if the claimant shows good cause for not submitting the evidence to the agency previously; the additional evidence is new, material, and relates to the period on or before the date of the hearing decision; and there is a reasonable probability that the additional evidence will change the outcome of the decision. See 20 CFR 404.970(a)(5), (b) and 416.1470(a)(5), (b); Hearings, Appeals and Litigation Law (HALLEX) manual I-3-3-6.

However, for cases that are not based on an application for benefits and that involve title XVI of the Social Security Act (Act) (e.g., age 18 redeterminations, continuing disability reviews (CDR), or terminations), the AC will first consider whether the additional evidence is material to an issue being considered. See 20 CFR 416.1470(b). If the AC finds the additional evidence to be material, it will then consider whether the evidence meets the criteria for reviewing the case. See 20 CFR 416.1470(a)(5).

B. Evaluating the Record

C. Denial Notice Requirements

If the analyst recommends that the AC deny the request for review, the analyst will prepare a denial notice and, as applicable, will:

1. Fully address the evidence in the Appeals Review Processing System (ARPS) analysis.

   • Note the location of the evidence in the record if the evidence is duplicative.

   • Explain in the analysis whether the claimant has shown good cause.

   • Explain in the analysis if the evidence is not material, does not relate to the period at issue, or does not show a reasonable probability that it would change the outcome of the decision.

2. Not mark the evidence as an exhibit.

3. Associate a copy of the evidence in the appropriate section of the file, placing all medical evidence 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. See 20 CFR 404.976(b) and 416.1476(b).

   NOTE:

   If electronically submitted evidence does not appear in the correct section, the analyst will move the evidence to the appropriate section and include a detailed description of the evidence in the metadata.

4. Include language in the denial notice specifically identifying the additional evidence (by source, date range, and number of pages) and the reason why the evidence does not provide a basis for granting review:

   • We find that you did not have good cause for why you missed informing us about or submitting this evidence earlier. We did not exhibit this evidence.

   • This evidence is not new because it is a copy of Exhibit(s) [Number]. We did not exhibit this evidence.

   • This evidence is not material because it is not relevant to your claim for disability. We did not exhibit this evidence.

   • This additional evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you are disabled beginning on or before the date last insured or decision date, as applicable.

   • We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not exhibit this evidence.

5. Include language stating that the agency will use the date of the request for review as a protective filing date if the claimant files a new application within six months of the date of the AC denial notice in a title II claim or 60 days of the date of the AC denial notice in a title XVI claim, if the AC finds that:

   • The claimant did not meet one of the good cause exceptions set forth in 20 CFR 404.970(b) and 416.1470(b); or

   • The additional evidence does not relate to the period on or before the date of the hearing decision.

   NOTE 1:

   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 generally 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 Program Operations Manual System (POMS) DI 51501.000.

   NOTE 2:

   When the claim is for title II benefits only and the claimant's insured status has expired, the AC will include protective filing language for a new title II claim if the date last insured was within two years of the AC denial notice. This is necessary to account for any lag earnings. See POMS RS 01404.005.

6. Return the evidence to the claimant by mail if the evidence is unusual or original, such as an original or certified copy of a marriage or birth certificate. The AC will not regularly return copies of medical evidence or other routine evidence, but when the AC receives an original copy of a document, it will consider who submitted the information and by what means, whether the claimant is represented, and whether it appears that the claimant otherwise has access to the information. If it appears, based on the circumstances, that the claimant may need the original information returned, the AC will return the information. If the claimant or appointed representative submits documents related to a non-party in an effort to show that the AC should grant review, see HALLEX I-3-2-24.

If additional evidence is offensive or detrimental to the claimant's health and the claimant did not submit it directly, the analyst must discuss the matter with his or her branch chief before taking any action that may give the claimant access to the evidence.