I-3-5-50.Appeals Council Receives Additional Evidence After Issuing Denial of Request for Review
Last Update: 3/25/14 (Transmittal I-3-64)
A. Identifying Additional Evidence After Case Closure
The Appeals Council (AC) may receive additional evidence after it has denied a request for review and closed the case in the Appeals Review Processing System (ARPS). As it is common for appointed representatives or other agency components to submit additional evidence electronically, branch chiefs must ensure support staff regularly reviews relevant Electronic Folder Transaction workload listings to identify additional evidence, even when a case is closed.
When the AC receives additional evidence after the AC denies a request for review, support staff will take the following actions:
Determine whether the claimant has filed a civil action, and if so, route the additional material to the Court Case Preparation Review Branch (CCPRB);
Add an unhidden remark in the closed case in ARPS, describing the material and indicating the action taken;
Scan the evidence into the file (if electronic), or recall the paper file from the storage facility, establish a To Do Item in the closed case in ARPS, associate the evidence on receipt of the file, and delete the To Do Item; and
Forward the file to a designated reviewer in the branch (usually the analyst who previously reviewed the case), and establish a control due date with a To Do Item in ARPS.
B. Establishing a Case in ARPS
1. Evidence Is Duplicative
If the evidence is duplicative of material already in the file, the designated reviewer will not add a new case in ARPS. Instead, he or she will add a new unhidden remark in ARPS indicating the material is duplicative. In electronic files, the designated reviewer will lock the case in eView and, in the Notes in the F section, indicate the material is duplicative and the exhibit the information duplicates. In paper files, the designated reviewer will mark the document(s) itself as duplicative, specifically noting which exhibits it duplicates. The designated reviewer will then delete the To Do Item in ARPS.
2. Evidence Is Not Duplicative
If the evidence is not duplicative, the designated reviewer will ask support staff to create a new ARPS record with the workload type “Reopening (REO).” The request date will be the date of the prior AC denial notice.
If the claimant submitted the evidence before the date of the AC denial notice, support staff will also add the case characteristic “TMVV” (CORR Rec'd Before AC Action-Review NEC).
After establishing the ARPS record, the support staff will assign the case to the analyst for workup and delete all related To Do Items.
C. Reviewing the Additional Evidence
1. Evidence Submitted But Not Associated Prior To Date of Denial Notice
Occasionally, a claimant will submit additional evidence for AC review before the AC releases its denial notice, but the evidence is not associated with the file until after the AC releases its denial notice. In these instances, the AC must consider the claimant's request for review again.
If a Federal court action has been filed based on the AC denial, the analyst will notify the CCPRB of the additional evidence issue.
If, after analyzing the additional evidence, the analyst recommends the AC again deny the request for review, the analyst will choose “Re-Deny” as the final recommendation in ARPS. The analyst will also prepare an amended denial notice vacating the prior action. The notice will:
Address the additional evidence under HALLEX I-3-5-20, including any protective filing date issues; and
Advise the claimant of the right to file a civil action based on the amended notice.
If the analyst recommends any action other than a “re-deny,” the analyst will apply the usual procedures for that action, and an AAJ will review the recommendation and adjudicate the claim.
2. Evidence Submitted On or After Date of Denial Notice
If the claimant submits evidence on or after the date of the denial notice, the AC will not vacate its denial of the request for review. Rather, the AC treats the submission of additional evidence as an implied request for reopening of the administrative law judge's decision. For more information about reopening procedures, see HALLEX I-3-9-0.
If, before the date of the AC denial notice, the claimant also requested exhibits, the hearing recording, or an extension of time, and the AC has not responded to the request(s), see the instructions in HALLEX I-3-5-50 D below.
If, after looking at the additional evidence, the analyst recommends the AC deny the request for reopening, the analyst will choose “Deny” as the final recommendation in ARPS. The analyst will then prepare a denial notice, using the COR 42 in DGS. (If the analyst recommends an action other than a denial, the analyst will use the applicable procedures for the proposed action).
The AC will not return the evidence to the claimant unless there is a compelling reason to do so. A compelling reason exists when the claimant submits original copies of information that is unusual or may be difficult for the claimant to re-obtain. For example, the AC will return original copies of birth or marriage certificates.
D. Request for Exhibits, Hearing Recording(s), and/or Extension of Time Submitted But Not Associated Prior to Date of Denial Notice
Occasionally, a claimant will submit a request for exhibits, a hearing recording, or an extension of time request before the AC releases its denial notice, but the request is not associated with the file until after the AC releases its denial notice. In these instances, the AC must vacate the prior denial to consider the claimant's request for review again after the claimant has had an opportunity to review and comment, as explained below.
If the request for exhibits or a hearing recording was submitted by a representative who has access to the electronic folder, the instructions below still apply. However, the person preparing the response will also include the following language:
“We are not enclosing copies of the exhibits and/or digital recording you requested because you have access to the electronic folder through the Appointed Representative Services website at www.socialsecurity.gov/ar.”
The legal assistant (LA) will handle these requests. The LA will obtain an ARPS query to ensure that the requested information has not already been provided and a civil action has not been filed. If the LA determines that the requested information has not been released, and no civil action has been filed, he or she will:
Establish a new ARPS record with workload type “Reopening (REO),” using the date of the AC denial notice as the request date and adding case characteristic “TMVV.”
In paper cases, request the file from the storage facility and establish a To Do Item to control the request.
Add an unhidden remark to the ARPS record describing who made the request for duplicate tapes, exhibits, or both, and when the request was received.
Immediately prepare a COR 40-A or COR 40-C letter with the designated electronic signature. The COR 40-A is used when the requested information is sent with the vacate action and is signed by an adjudicator. The COR 40-C is used when the action is vacated but requested information has not yet been duplicated. The COR 40-C is signed by the Executive Director.
Release the letter to the claimant and representative, if any (with the branch chief's approval).
If there is a subsequent application pending at the hearing level, notify the hearing office by fax that the AC vacated its denial notice to reconsider the claimant's request for exhibits, hearing recording, or both. (To notify, use the Subsequent Application Case Flag, crossing out the denial information and annotating the flag that the AC vacated the denial and the request for review is now pending.)
As soon as the necessary actions are taken, the LA will:
Process the request for exhibits, hearing recording, or both;
Send the material to the claimant and representative, if any; and
Diary the case for potential response from the claimant and representative, if any.
When the claimant submits additional evidence or contentions, or the diary matures, the case will be assigned to an analyst to rework the case, using the procedures noted in HALLEX I-3-5-50 C above.