I-4-2-32.Additional Evidence Affects the Defensibility of the Pending Court Case
Last Update: 9/13/05 (Transmittal I-4-15)
A. Analysis of Good Cause
If the analyst concludes that the additional evidence or other materials may affect the defensibility of a pending court case, the analyst must first determine whether good cause may exist for inclusion of such evidence before seeking remand of the pending court case.
The 1980 Amendments to the Social Security Act (P.L. 96-265; 42 U.S.C. § 405(g)) provide that the court may remand a case to the Commissioner only when good cause for doing so exists. Good cause before the Commissioner has answered the plaintiff's complaint is not defined; however, after answer, good cause exists only upon a showing that there is new evidence which is material and good cause exists which explains why the evidence was not incorporated into the record in a prior proceeding.
In determining whether good cause exists regarding the submission of the additional evidence or other material, the analyst may use as a guide the regulations that describe good cause for missing the deadline to request review (20 CFR 404.911 and 416.1411). These sections discuss acceptable reasons for missing a deadline and form a basis for a reasonable conclusion regarding the late submission of evidence. For example, a representative submits additional evidence after a civil action is filed, we note the evidence existed before the administrative law judge's (ALJ) decision, but the representative explains that these records were lost when the physician moved and were only recently located.
If the analyst determines, in his or her opinion, that good cause for seeking remand does not exist, a memorandum to the Office of the General Counsel (OGC) must be prepared. The memorandum will explain how the additional evidence may affect the pending court case. It will also explain why the analyst concludes that good cause for seeking remand does not exist. For example, although the evidence may be new, it existed prior to the date of the hearing decision but was not submitted by the claimant's representative until after the civil action was commenced and a good reason was not provided to explain why it was not submitted at the appropriate time.
B. Recommendation to Seek Remand
If the analyst determines that good cause for seeking remand of the pending court case exists, an analysis and recommendation must be prepared and submitted to the Appeals Council (AC). In the analysis and recommendation, the analyst must explain the reasons, including good cause, for seeking remand of the pending court case and propose the action to be taken upon remand.
The analyst must prepare the analysis on the “Analysis of Request for Voluntary Remand” form (Hearings, Appeals and Litigation Law (HALLEX) manual I-4-2-100). Upon completion of the analysis, the analyst must complete the Litigation Overview and Tracking System-generated “Court Case Control and Routing Slip” (see HALLEX I-4-2-99) to properly route the case to the administrative appeals judge (AAJ) having geographical and numerical responsibility for the case (see HALLEX I-3-0-6).
C. Appeals Council Agrees with the Analyst's Recommendation
If the AC agrees with the analyst's recommendation to seek voluntary remand of the pending court case, the analyst must prepare a memorandum to OGC setting forth the reasons, including good cause, for seeking remand of the case and the action the AC proposes to take upon remand.
D. Appeals Council Disagrees with the Analyst's Recommendation
If the AC disagrees with the analyst's recommendation to seek voluntary remand of the pending court case, the analyst may refer the case to the branch chief. If the branch chief disagrees with the conclusion of the AC, the branch chief and the analyst must discuss the case with the AAJ and resolve the action to take at that time. If the branch chief agrees with the AC's conclusion to continue defense of the pending court case, the analyst must prepare a memorandum to OGC setting forth the AC's reasons for concluding that the case still should be defended.