Last Update: 5/1/17 (Transmittal I-3-156)
Under 20 CFR 404.979 and 416.1479, the Appeals Council (AC) may affirm, modify, or reverse an administrative law judge's (ALJ) decision. Additionally, the AC may adopt, modify, or reject an ALJ's recommended decision. For additional information on recommended decisions, see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-8-15 and I-3-2-50.
The primary purpose of an AC decision is to dispose of all issues in a case. If the ALJ did not consider all elements of eligibility or entitlement, or if additional evidence (HALLEX I-3-3-6) is submitted to the AC, the AC's decision may extend beyond the scope of the ALJ's decision. However, the AC will generally only exercise its authority to issue a favorable decision when the AC determines that onset occurred on or before the date of the ALJ's decision.
C. Evidence Considered by AC
When the AC issues a decision, the AC will consider all the evidence of record and any additional evidence it received, subject to the regulatory limitations in 20 CFR 404.970 and 416.1470. For additional instructions about when the AC will consider additional evidence, see HALLEX I-3-3-6.
If the AC is issuing a decision in a continuing disability review case, see F below.
When the AC issues a decision, the AC will exhibit and address additional evidence the claimant submits if:
The additional evidence is new, material, and relates to the date on or before the hearing decision; and
The AC finds that there is a reasonable probability that the additional evidence will change the outcome of the decision.
D. Evidence Not Considered by the AC
The AC will not consider or exhibit evidence if the AC finds that:
The additional evidence is not new;
The additional evidence is not material;
The additional evidence does not relate to the date on or before the ALJ decision; or
The additional evidence does not show a reasonable probability that it would change the outcome of the decision.
The AC will explain the reason(s) it did not exhibit the evidence in the decision, See D.1. below. For additional instructions about when the AC will consider evidence, see HALLEX I-3-3-6.
In addition, if the decision is unfavorable to the claimant or establishes a closed period of disability the AC will follow the instructions in D.2. below, as applicable, to offer the claimant a protective filing date.
1. Explaining the Reason(s) for Not Exhibiting Evidence
When the AC does not exhibit evidence, the AC will identify the evidence and briefly explain why the AC did not consider and exhibit the evidence, as applicable:
This evidence is not new because it is a copy of Exhibit(s) [Number].
This evidence is not material because it is not relevant to a claim for disability.
This additional evidence does not relate to the period at issue.
This additional evidence does not show a reasonable probability that it would change the outcome of the decision.
The claimant did not have good cause for why he or she missed informing the Social Security Administration about or submitting this evidence earlier.
2. Offering a Protective Filing Date
The AC will offer a protective filing date to the claimant when the AC issues an unfavorable or closed period decision and the claimant:
Submitted additional evidence that does not relate to the period on or before the date of the ALJ's decision.
When the requirements for offering a protective filing date are met, the AC will:
Use the date of the request for review as a protective filing date;
Include language specifically identifying the additional evidence (by source, date range, and number of pages);
Include language explaining that the agency will use the date of the request for review as a protective filing date if the claimant files a new application within 6 months of the date of the AC decision notice in a title II claim or 60 days of the date of the AC decision notice in a title XVI claim; and
Not address the additional evidence in the decision's analysis section.
When the claim is for title II benefits only, and the claimant's insured status has expired, the AC will provide protective filing for a new title II claim if the date last insured was within two years of the AC decision. This is necessary to account for any lag earnings. See Program Operations Manual RS 01404.005.
E. Effect of AC Decision
F. Continuing Disability Reviews and Social Security Ruling 13-3p
On February 21, 2013, the Social Security Administration issued Social Security Ruling (SSR) 13-3p, Title II: Appeal of an Initial Medical Disability Cessation Determination or Decision. In the SSR, the agency adopted the holding in Difford v. Secretary of Health and Human Services, 910 F.2d 1316 (6th Cir. 1990) and extended the policy previously applied only in title XVI medical cessation cases to title II medical cessation cases. In sum, SSR 13-3p requires that, when issuing a determination or decision, an adjudicator evaluating a medical cessation case must decide whether the beneficiary is under a disability at any time through the date of the adjudicator's determination or decision.