I-3-2-15.Claimant Informs the Appeals Council About Additional Evidence

Last Update: 11/17/20 (Transmittal I-3-173)

A. General

A claimant must inform or submit to the Social Security Administration (SSA) all evidence, in its entirety, known to him or her that relates to whether or not he or she is blind or disabled. See 20 CFR 404.1512 and 416.912. If a claimant has appointed a representative, the representative must help the claimant obtain any information or evidence that the claimant must submit. See 20 CFR 404.1740(b)(1)-(2) and 416.1540(b)(1)-(2). This duty applies at the Appeals Council (AC) if the evidence relates to the period on or before the date of the administrative law judge (ALJ) decision (or the claimant's date last insured, when applicable).

NOTE 1:

Evidence generally does not include a representative's analysis of the claim or oral or written communications between a claimant and his or her representative that are subject to the attorney-client privilege or that would be subject to the attorney-client privilege if a non-attorney representative was an attorney. See 20 CFR 404.1513(b) and 416.913(b).

If a claimant informs the AC about additional evidence, the AC will not obtain or consider additional evidence as a basis to grant review unless the claimant meets one of the good cause exceptions set forth at 20 CFR 404.970(b) and 416.1470(b). If the AC finds that the claimant meets a good cause exception, the AC will follow the procedures below and will evaluate the additional evidence with the other evidence of record to determine whether to grant review. See 20 CFR 404.935, 404.970, 416.1435, and 416.1470.

NOTE 2:

When the AC evaluates a decision that is not based on an application for benefits and involves title XVI of the Social Security Act (e.g., age 18 redeterminations, continuing disability reviews, terminations), the AC considers the evidence in the hearing record and any additional evidence it believes is material to an issue being considered.

When a claimant informs the AC about additional evidence and the AC finds that the claimant meets a good cause exception or the AC evaluates a decision that is not based on an application for benefits and involves title XVI of the Social Security Act (e.g., age 18 redeterminations, continuing disability reviews, terminations), Office of Appellate Operations (OAO) staff will generally attempt to develop the evidence only if the claimant clearly indicates that the evidence relates to the period on or before the date of the ALJ hearing decision.

NOTE 3:

OAO staff will not develop whether the claimant meets a good cause exception. See 20 CFR 404.970(b) and 416.1470(b).

When the AC finds that the claimant meets a good cause exception or the AC evaluates a decision that is not based on an application for benefits and involves title XVI of the Social Security Act (e.g., age 18 redeterminations, continuing disability reviews, terminations), and the additional evidence is related to the period on or before the date of the ALJ hearing decision, OAO staff will make necessary attempts, referenced in this section, to obtain the evidence. In many instances, the AC must also proffer the evidence associated with the claim(s) file to the claimant and appointed representative, if any. For detailed instructions on when proffer is required at the AC level, see Hearings, Appeals and Litigation Law (HALLEX) manual I-3-2-16.

NOTE 4:

A representative may inform SSA about evidence that relates to whether or not the claimant is blind or disabled. See 20 CFR 404.970(b) and 416.1470(b). A representative also has an affirmative duty to act with reasonable promptness to help obtain the information or evidence that the claimant must submit under the regulations and forward the information or evidence to SSA for consideration as soon as practicable. See 20 CFR 404.1740(b)(1) and 416.1540(b)(1). If a representative is believed to present a pattern of not acting with reasonable promptness to help obtain and forward the evidence to SSA, an administrative appeals judge will consider whether circumstances warrant a referral to the Office of the General Counsel (OGC) as a possible violation of our rules. See HALLEX I-1-1-50 for instructions on making referrals to OGC.

B. Requesting Evidence From a Claimant or Appointed Representative

1. Contact With the Claimant or Appointed Representative

When a claimant or an appointed representative informs the AC about evidence that clearly relates to the period on or before the date of the ALJ decision, and the evidence is not already in the claim(s) file, OAO staff will first ask the appointed representative (or the claimant, if he or she is unrepresented) to provide the evidence.

NOTE 1:

Development is not required if another adjudicative level has already attempted to obtain the same evidence.

To request evidence from an appointed representative (or the claimant, if he or she is unrepresented), OAO staff will:

  • Prepare a letter to the claimant or representative by using the Document Generation System (DGS), clicking the “COR” tab, and then selecting “Cor 12.”

  • Associate a copy of the letter in the E section of the paper claim(s) file or upload a copy of the correspondence letter into the claim(s) file. (Please note that COR letters automatically upload to the B section from DGS, so it will be necessary to move this letter into the E section.)

  • Mail a copy of the correspondence letter with a blank form SSA-827, “Authorization to Disclose Information to the Social Security Administration,” and a self-addressed envelope to the claimant's representative with a copy to the claimant or directly to the claimant, if he or she is unrepresented.

NOTE 2:

At any point during the development and processing of a request for review or other pending AC action, including at the Division of Civil Actions level, OAO staff (including analysts) may contact the appointed representative (or an unpresented claimant) by telephone to request evidence and/or correspondence referred to but not associated with the claim(s) file. For example, if a representative references an attached brief with the request for review, but the brief is not associated with the claim(s) file, OAO staff may call the representative to request the missing document(s). Following a telephone call, OAO staff will add a remark to the Appeals Review Processing System (ARPS) documenting the date of the call, the person contacted, and the document(s) requested. In addition, OAO staff will establish a diary for receipt of the requested material.

2. Follow-Up on Evidence

If the evidence identified by the claimant is medical evidence, OAO staff will diary the case for 30 days for receipt of the evidence. If the evidence identified by the claimant is non-medical evidence, OAO staff will diary the case for 15 days for receipt of the evidence. See ARPS Case Diary Desk Guide.

If OAO staff does not receive the requested evidence by the diary date, OAO staff will follow up by contacting (preferably by telephone) the claimant or appointed representative, if any, for status of the requested evidence. OAO staff will notify the branch chief or division director of the reason the evidence was not returned (or that the phone call was not returned). The branch chief or division director will then consult with the Division Chief Administrative Appeals Judge (DCAAJ). In determining the appropriate action to take in the case, the DCAAJ will consider, among other factors, the following:

  • Whether to extend the time for the claimant or representative to provide the evidence (e.g., if the claimant or representative informs the AC that the medical source has promised to provide the evidence within a reasonable period);

  • Whether there is a current form SSA-827, “Authorization to Disclose Information to the Social Security Administration (SSA),” (signed and dated in the last twelve months) in the file; and

  • Whether to instruct OAO staff to request the evidence from the identified medical source, either directly or through the State agency as explained below.

NOTE 1:

If OAO staff needs to request a current signed and dated form SSA-827 from the claimant pursuant to DCAAJ instructions, see HALLEX I-2-5-14 A for more information about how to obtain a form SSA-827.

NOTE 2:

DCAAJs will note the action they decide to take in the Adjudicator Remarks section in ARPS.

OAO staff will include documentation in the record of all attempts to obtain evidence, using form SSA-5002, “Report of Contact” (RC). OAO staff will also annotate all follow-up in ARPS.

C. Requesting Evidence Directly From a Medical Source

When a DCAAJ approves a request for evidence directly from a medical source (e.g., the case is designated critical), the DCAAJ will send an email to ^DCAAJ Medical Evidence Request. Designated OAO staff will use the following methods to obtain and pay for medical evidence:

1. Telephone Requests

When requesting evidence by telephone, OAO staff will first call the medical source and then complete the following actions:

  • Mail or fax the medical source a current signed and dated form SSA-827;

  • Prepare an RC to document the request, and place the RC in the claim(s) file. The RC must show:

    • The name, position or title, and telephone number of the OAO staff making the contact;

    • The name, position or title, and telephone number of the person contacted;

    • The date of the contact; and

    • The substance of the telephone conversation, including identification of the evidence requested, the actions both the requestor and the source will take (e.g., the person making the contact promises to provide the source with a signed and dated form SSA-827 to release the evidence), and the time limits for completion; and

  • Diary the case for follow-up. See subsection C.3., below.

2. Written Requests

When requesting evidence by letter or by fax, OAO staff will:

  • Enclose a current signed and dated form SSA-827;

  • Place a copy of the written request (if a fax, include the cover sheet with proof of transmission) in the claim(s) file; and

  • Diary the case for follow-up. See subsection C.3., below.

3. Follow-Up Procedures

If the medical source does not provide the requested evidence within 10 days after OAO's initial telephone or fax request or within 15 days after OAO's initial written request (allowing an additional five days for mailing), OAO staff will contact the source (preferably by telephone) to determine the status of the request. OAO staff will present the information to the branch chief or division director, who will then consult with the DCAAJ. If the DCAAJ believes that the source needs additional time to respond to the initial request, he or she may instruct OAO staff to wait an additional 10 days before attempting another contact.

If the source does not provide the requested evidence within 10 days after OAO's telephone or fax transmission follow-up or 15 days after OAO's written follow-up, OAO staff will contact the source again to determine the status of the request.

If OAO's follow-up contact is made by telephone, OAO staff will prepare an RC for the claim(s) file. The RC must show:

  • The name, position or title, and telephone number of the OAO staff making the follow-up contact;

  • The name, position or title, and telephone number of the person contacted;

  • The date of the follow-up contact; and

  • The substance of the telephone conversation.

If the follow-up is made in writing, OAO staff will place a copy of the written follow-up in the claim(s) file. If the follow-up is made by fax, OAO staff will place a copy of the written follow-up, cover sheet and proof of transmission in the claim(s) file.

OAO staff will also annotate all follow-up in a “Remark” in ARPS.

4. Telephone Reports

If a medical source provides information by telephone, OAO staff receiving the information will:

  • Prepare a form SSA-795, “Statement of Claimant or Other Person,” that clearly describes the information provided and shows:

    • The OAO staff member's name, position or title, and telephone number;

    • The source's name, position or title, and telephone number; and

    • The date and time of the telephone report.

  • Send the original form SSA-795, along with a postage paid return envelope, to the source to verify, sign, and return to the AC.

  • Place a copy of the form SSA-795 in the claim(s) file.

  • Set a 30-day diary in ARPS, and place the case in “Development Pending” (DEVP) status.

D. Requesting Evidence From a Medical Source Through the State Agency

OAO staff will use the following method to obtain medical evidence when approved by a DCAAJ:

1. Request Procedures

When requesting evidence from a medical source through a State agency, OAO staff will:

  • Complete and send to the State agency a form HA-72, “Request for Medical Evidence Only From State Agency.” OAO staff will provide the State agency with:

  • The name, address and telephone number of the representative, if any;

  • A description of and location of the evidence needed;

  • A current signed and dated form SSA-827;

  • The name and telephone number of the OAO staff contact; and

  • A postage paid return envelope.

  • Place a copy of the form HA-72 and other requested information in the claim(s) file in section B; and

  • Set a 30-day diary in ARPS, and place the case in DEVP status.

2. Follow-Up Procedures

If the State agency does not provide the requested evidence by the end of the diary period, OAO staff will:

  • Contact the State agency (preferably by email) to determine the status of the State agency's action on the request;

  • Prepare an RC for the claim(s) file to document the follow-up (if done through letter or fax, place a copy of the letter or fax coversheet with proof of transmission in the claim(s) file); and

  • Diary the case for the additional time (up to 30 days) that the State agency indicates it needs.

3. Problem With the State Agency's Response

If there is a problem with the State agency's response (e.g., the State agency does not send any evidence or sends inadequate or incomplete evidence), OAO staff will contact the State agency (preferably by email) and try to resolve the problem. If done through letter or fax, place a copy of the letter or fax coversheet with proof of transmission in the claim(s) file. If OAO staff is unable to resolve the problem and a DCAAJ determines that the requested evidence is essential, OAO staff will request assistance from the Executive Director's Office (EDO) by sending an email to ^DCARO OAO.

E. Exhibiting Requests for Evidence by the AC

As noted above, OAO staff will include documentation of all attempts to obtain the evidence as RCs in the E section of the claim(s) file. When an analyst prepares the action document (i.e., denial or decision) in a case where OAO staff requested evidence, the analyst must add the RCs as exhibits in the E section, regardless of whether the AC obtains the evidence.