Background

This transmittal amends the Hearings, Appeals and Litigation Law (HALLEX) manual Chapter I-3-3 to clarify when the Appeals Council (AC) will consider additional evidence and when the AC will grant review based on additional evidence. These changes were necessary to ensure consistency with regulatory language, and to incorporate processing changes due to Social Security Ruling 11-1p: Titles II and XVI: Procedures for Handling Requests to File Subsequent Applications for Disability Benefits. Additionally, we anticipate that these changes will result in improved consistency within the AC and reduce inconsistent results and application in the Federal courts.

Explanation of Content and Changes

This transmittal revises I-3-3-6 to clarify when additional evidence is new and material, and relates to the period on or before the date of the ALJ decision. We also clarified when the AC will grant review based on this evidence. We made language changes to adhere more closely to regulatory language. We also made editorial and organizational revisions.

I-3-3-6 A. — We added an explanation regarding closed record provisions, and we clarified why additional evidence can be a reason for the AC to grant review. We modified the existing language to adhere more closely to the regulatory language.

I-3-3-6 B. — We added a new subsection B to provide clear instructions on determining whether evidence is new and material, and relates to the time period at issue. Simplified language was necessary because neither HALLEX I- 3-3-6 or I-3-5-20 clearly defined the terms, and the provisions appeared to conflict regarding the definition of these terms. The provisions also included vague terminology that resulted in inconsistent application and interpretation within the AC and the Federal courts. In addition to simplifying the language, we clarified that evidence must meet all three criteria to be considered by the AC and added necessary definitions and examples.

I-3-3-6 C. — We created a new subsection C to clarify when the AC will grant review based on additional evidence.

I-3-3-6 D. — We created a new subsection D to incorporate the information previously in subsection B. We made minor editorial changes to adhere more closely to the regulatory language.

Date: December 27, 2012