I-3-3-6.New and Material Evidence

Last Update: 12/27/12 (Transmittal I-3-44)

A. General

After an administrative law judge (ALJ) issues a decision, the administrative record generally closes. This means that when the Appeals Council (AC) acts on a request for review, the AC usually considers only the evidence that was before the ALJ and the time period through the date of the ALJ decision. See 20 CFR 404.976(b) and 416.1476(b).

When a claimant or representative submits additional evidence in association with a request for review, the AC must determine whether it is new, material, and relates to the period on or before the date of the ALJ decision. 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).

NOTE:

Under Social Security Ruling (SSR) 11-1p: Titles II and XVI: Procedures for Handling Requests to File Subsequent Applications for Disability Benefits, 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. For more information on how SSR 11-1p applies when additional evidence is submitted, see HALLEX I-3-5-20.

B. Determining Whether to Consider the Additional Evidence

For the AC to consider additional evidence, the regulations require that the evidence is new, material, and related to the period on or before the date of the ALJ decision. This means the evidence is:

  1. Not part of the claim(s) record as of the date of the ALJ decision;

  2. Relevant, i.e., involves or is directly related to issues adjudicated by the ALJ; and

  3. Relates to the period on or before the date of the ALJ decision, meaning it is: (1) dated before or on the date of the ALJ decision, or (2) post-dates the ALJ decision but is reasonably related to the time period adjudicated by the ALJ.

NOTE 1:

The AC does not apply a strict deadline when determining if post-dated evidence relates to the period at issue. There are circumstances when evidence dated after the ALJ decision relates to the period at issue. For example, a statement may relate to the period at issue when it postdates the decision but makes a direct reference to the time period adjudicated by the ALJ. This may be especially important in a claim involving a date last insured (DLI) where a statement from a treating source dated after an ALJ decision specifically addresses the time period before the DLI.

NOTE 2:

In Region 1, the Part 405 rules apply. Under 20 CFR 405.401(c), the AC will consider additional evidence only when it relates to the period on or before the date of the hearing decision, the claimant shows there is a reasonable probability that the evidence, alone or when considered with the other evidence or record, changes the outcome of the decision, and

  • agency action misled the claimant, or

  • the claimant had a physical, mental, educational, or linguistic limitation that prevented earlier submission of the evidence, or

  • some other unusual, unexpected, or unavoidable circumstance beyond the claimant's control prevented earlier submission of the evidence.

Though not exhaustive, the following are common examples of evidence that the AC will not consider. Evidence is not related to the period at issue when the evidence shows:

  • A worsening of the condition after the expiration of a DLI in a title II disability insurance benefits claim.

  • A worsening of the condition after the last day of the prescribed period in a widow(er)'s insurance benefits claim based on disability.

  • A worsening of the condition after the claimant attained age 22 in a child's insurance benefits claim based on disability.

  • A worsening of the condition or onset of a new condition after the date of the ALJ decision.

For procedures on considering additional evidence, see HALLEX I-3-5-20.

C. Determining Whether to Grant Review Based on Additional Evidence

When deciding whether to review a case in which the closed record provisions apply, the AC may consider additional evidence if it is new, material, and relates to the period on or before the date of the ALJ's decision. If the additional evidence meets these criteria, as outlined in section B above, the AC considers the additional evidence with the entire record.

If the AC finds the entire record, including the additional evidence, shows the ALJ's action, findings, or conclusion is contrary to the weight of the evidence currently of record, the AC will review the case and take appropriate action. See 20 CFR 404.970(b) and 416.1470(b).

NOTE:

The weight of the evidence is defined as the balance or preponderance of evidence; the inclination of the greater amount of credible evidence to support one side of the issue rather than the other. See HALLEX I-3-3-4.B.

In other words, the weight of the evidence means it is “more likely than not” that the totality of evidence, including the additional evidence, would change the ALJ's action, findings, or conclusion.

D. When Closed Record Provisions Apply

The “closed record” regulations at 20 CFR 404.976(b) and 416.1476(b) apply to:

  1. Title II claims based on an application filed after June 30, 1980.

  2. Title XVI claims based on an application filed after April 30, 1986.

  3. Title II claims not based on an application (e.g., cessation or termination cases), effective with requests for review filed on or after February 9, 1987.

However, in title XVI claims not based on an application (e.g., cessation, age 18 redetermination, or termination cases), the AC considers the evidence in the hearing record and any additional evidence it believes is material to an issue being considered. See 20 CFR 416.1476(b).