I-4-4-25.Additional Evidence in a Pending Court Case

Last Update: 10/9/20 (Transmittal I-4-83)

A. General

If Court Case Preparation and Review Branch (CCPRB) staff discover additional evidence when preparing a certified administrative record (CAR), CCPRB staff will assign the case to an analyst to review the additional evidence and determine the appropriate action consistent with the instructions below. See also Hearings, Appeals and Litigation Law Manual (HALLEX) I-4-1-15 D.

NOTE:

If the Appeals Council (AC) received the additional evidence or newly associated correspondence after the AC denied the request for review, dismissed the request for review, or issued a decision, the analyst should recommend that the Office of the General Counsel (OGC) defend the case. The analyst will prepare an analysis in the Appeals Review Processing System (ARPS) and a memorandum to OGC fully addressing the evidence and explaining the AC received it after the AC's last action, so it will not be included in the CAR. The analyst should submit the recommendation to an administrative appeals judge (AAJ). Following the AAJ's approval, for paper claim(s) files, the analyst will send the memorandum with a copy of the evidence or correspondence to OGC. For electronic claim(s) files, the analyst will note in the memorandum that the additional evidence is available in eView.

B. Considering Additional Evidence

Generally, claimants must inform the Social Security Administration (SSA) about or submit written evidence to SSA no later than five business days before the date of a scheduled hearing with an administrative law judge. See 20 CFR 404.935 and 416.1435. When the AC acts on a request for review, the AC will only consider additional evidence, if it meets the standard set forth in 20 CFR 404.970 and 416.1470.

If a claimant or representative submits additional evidence, when a case is pending in Federal court, the AC will determine whether the claimant meets one of the good cause exceptions set forth in 20 CFR 404.970(b) and 416.1470(b). If the AC finds that the claimant meets a good cause exception, the AC will evaluate the additional evidence with the entire record. The AC will seek voluntary remand of the case, if the additional evidence is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision. See 20 CFR 404.970(a)(5) and 416.1470(a)(5). If the AC finds that the claimant does not meet a good cause exception, or if the AC finds that the additional evidence does not satisfy all the criteria in 20 CFR 404.970(a)(5) and 416.1470(a)(5), OGC will continue to defend the case.

If a claimant or claimant's counsel submits additional evidence, when a case is pending in Federal court 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, or terminations), the AC will consider the evidence, if it is material to an issue being considered. See 20 CFR 416.1470(b). However, the AC will only seek voluntary remand of the case, if the additional evidence is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision. See 20 CFR 404.970(a)(5) and 416.1470(a)(5). For further information about when to apply these provisions, see HALLEX I-3-3-6 D.

C. Analyst Procedures for Reviewing Additional Evidence

The analyst will review any additional evidence and make a recommendation to the AC either to seek voluntary remand or to defend the case, based on the criteria outlined in subsection B, above, and HALLEX I-3-3-6 B.

1. Seeking Voluntary Remand Based on Additional Evidence

The analyst will recommend that the AC seek voluntary remand when the criteria outlined in subsection A, above, and HALLEX I-3-3-6 B are met and fully address the evidence and explain the reason for recommending remand in an ARPS analysis. The analyst's rationale will explain why the claimant meets a good cause exception, why the evidence is new, material, and relates to the period on or before the date of the hearing decision, and why there is a reasonable probability that the evidence would change the outcome of the decision.

If the AC agrees that seeking a voluntary remand is appropriate, the analyst will take all necessary actions, including notifying OGC in a memorandum that the AC would like to seek voluntary remand of the case. The memorandum will explain how the additional evidence meets the criteria noted above and the AC's proposed action.

2. Defending a Case with Additional Evidence

The analyst will recommend that OGC defend the case, if the claimant does not meet a good cause exception, the additional evidence is not new, material, or related to the period on or before the date of the hearing decision, or there is not a reasonable probability that the additional evidence would change the outcome of the decision.

When the analyst recommends that OGC defend the case, he or she will prepare an analysis in ARPS fully addressing the evidence based on the criteria outlined in subsection A, above, and HALLEX I-3-3-6 B for an AAJ's consideration.

NOTE:

If the additional evidence or other material are duplicate of documents contained in the claim(s) file or CAR, the analyst will annotate the evidence as duplicate and return the claim(s) file or CAR to CCPRB support staff. No further evaluation of the record is necessary, and the analyst will not prepare a memorandum for OGC. However, if the claimant or the claimant's counsel submitted duplicate evidence directly to the AC in connection with a request for further evaluation of the record, and the AC did not note the duplicate evidence in the denial, the analyst will prepare a memorandum to OGC. The memorandum will identify the evidence and ask OGC to defend the case, because the duplicate evidence was previously in the record and warrants no change to the hearing decision.

If the AAJ agrees with the analyst's recommendation, the analyst will advise OGC in a memorandum to defend the case. The memorandum will describe the additional evidence and explain how it does not meet the criteria outlined in subsection A, above, and HALLEX I-3-3-6 B.

3. Completing the Recommendation

For paper claim(s) files, analysts will include a copy of the additional evidence, when sending a memorandum to OGC. For electronic claim(s) files, the analyst will note in the memorandum to OGC that the additional evidence is available in eView.

CCPRB support staff will add the additional evidence to the procedural portion of the CAR.