Effective January 17, 2017, the Commissioner of Social Security has changed how and under which circumstances the Appeals Council will consider evidence submitted to it. Amending 20 C.F.R. §§ 404.970 and 416.1470 accomplished these changes. [81 FR 90987.] (These two regulations are identical except for the fact that 20 C.F.R. § 404.970 deals with Title II claims, and 20 C.F.R. § 416.1470 pertains to Title XVI claims. The changes made by the Commissioner are the same with both regulations.)
So, how have these regulations changed? Under the rules in effect until January 17, 2017 (the “old regulations”) a claimant who appealed an unfavorable decision of an administrative law judge to the Appeals Council, was allowed to submit additional evidence. For additional evidence to be considered as part of the disability claim, the Appeals Council had to determine that the additional evidence qualified under the regulations. Additional evidence “qualified” under the regulations if it was “new” and “material.” The evidence also had to relate “to the period on or before the date of the administrative law judge hearing decision.” If the Appeals Council determined that the additional evidence was nonqualifying, it would not consider the new evidence as part of its review of the unfavorable decision.
The question of whether the Appeals Council made an error of law in applying the regulations is reviewable by the federal courts. (See, for example, Farrell v. Astrue, 692 F3d 767, 771 (7th Cir. 2012). However, the question of whether the Appeals Council erred by refusing to accept the case is not subject to federal court scrutiny because review is discretionary. (Farrell v. Astrue, at 771.) Under the old regulations, additional evidence was “new” if it had not been submitted and considered by the administrative law judge. The evidence was considered “material” under the old regulations if the evidence related to the issues in the case.
Under the regulations in effect beginning January 17, 2017 (the “new regulations”) the “new” and “material” requirements remain. So does the requirement that the additional evidence relate to the period on or before the date of the hearing decision. The Commissioner inserted the requirement that the Appeals Council must find that there “is a reasonable probability that the additional evidence would change the outcome of the decision.” (20 C.F.R. §§ 404.970(a)(5) and 416.1470(a)(5).) What this means is that the additional evidence can be “new” and “material” but still not considered by the Appeals Council because the Appeals Council determined that the additional evidence would not change the outcome of the unfavorable decision. Presumably, this decision is reviewable by the federal courts.
The new regulations also contain another provision. The other provision is a requirement that the claimant must show good cause for not having submitted the additional evidence within five (5) business days before the administrative law judge hearing. Under 20 C.F.R. § 404.935, the term “good cause” is narrowly construed. It includes that the action of the Commissioner misled the claimant from timely submitting the evidence; the claimant had a physical, mental educational, or linguistic problem that caused a late submission; or there was some other unusual, unexpected, or unavoidable circumstance beyond the control of the claimant which prevented either the claimant from informing the administrative law judge about the existence of the evidence or submitting the evidence.
The Commissioner’s requirement that additional evidence submitted to the Appeals Counsel be not only “new” and “material” but also in compliance with the five (5) business day rule and be the type of evidence which has a “reasonable probability” of changing the outcome makes it very difficult for additional evidence to make a meaningful difference at the Appeals Council level.
Even if the additional evidence would not make a meaningful difference at the Appeals Council level, a claimant still has, under yet another new set of regulations, the responsibility to either submit or inform the Commissioner of all evidence know to the claimant which has to do with the whether the claimant is disabled. (20 C.F.R. §§ 404.1512 and 416.912.) The duty to inform or submit applies to all levels of the administrative process including the Appeals Council level.