Beginning in April 2015, the Social Security Administration (SSA) created new internal Hallex regulations requiring representatives to submit all existing evidence related to a client’s mental or physical impairments. In the past, representatives were not required to submit evidence that could adversely impact a client’s case. During hearings held at the Office of Disability Adjudication and Review (ODAR) in Atlanta, GA, Administrative Law Judges (ALJs) are asking attorneys and representatives if they are “aware of any additional evidence that relates to whether the claimant is blind or disabled.” https://www.ssa.gov/OP_Home/hallex/I-02/I-2-6-78.html

Examples of evidence that must be submitted includes all paperwork, forms, medical records, and test results from physicians, psychiatrists, therapists and health care providers such as nurse practitioners, licensed clinical social workers, chiropractors, etc. Problematic for the representative is an inability to locate evidence, for instance, from a past personal injury or worker’s compensation claim. Moreover, clients cannot always recall the names or addresses of previous treating sources.

As far as evidence that has to be submitted after the ALJ denies a case at the hearing level, the record is not closed at the Appeals Council (AC) for the Atlanta region. (The AC is where cases are appealed after claimants get unfavorable hearing decisions from ALJs). Therefore, the ongoing duty to submit evidence extends to the Appeals Council, which considers additional information if the evidence is NEW and MATERIAL or relates to the period ON OR BEFORE the ALJ decision. https://www.ssa.gov/OP_Home/hallex/I-03/I-3-2-15.html and https://www.ssa.gov/OP_Home/hallex/I-03/I-3-3-6.html

If the evidence that a representative wishes to submit relates to the period AFTER the ALJ decision, the Appeals Council “will return the additional evidence to the representative with an explanation as to why it did not accept the additional evidence and will advise the claimant of his/her right to file a new application.” The Appeals Council “must return” the evidence and provide notice on how to file the new application. If the claimant files a new application within 6 months of the date of the AC denial notice in a Title II (DIB, SSDI) claim or within 60 days of the date of the AC denial notice in a Title XVI (SSI) claim, the date of the request for review of the ALJ’s unfavorable hearing decision will be used as a protective filing date. https://www.ssa.gov/OP_Home/hallex/I-03/I-3-5-20.html

Please note that a claimant cannot pursue an appeal, ie request for review of an ALJ’s denial of social security disability benefits and file a new application at the same time. An exception exists if the claimant has a new “critical or disabling condition” after the Judge issued an unfavorable decision at the hearing.https://www.socialsecurity.gov/OP_Home/rulings/di/01/SSR2011-01-di-01.html(Social Security Ruling 11-1p). See our blog on June 29, 2011 at www.kathleenflynnlaw.com/blog. Additional evidence of a new diagnosis, not relating back to the ALJ’s decision, must be included with the new application.

In the past, District Offices have refused to process a subsequent application with a new diagnosis such as HIV, for example, while the client’s request for review of the ALJ’s denial is pending at the Appeals Council. What is considered a “critical or disabling condition” is, apparently, open to interpretation by SSA. Before a new application can be processed, while the ALJ’s denial is being reviewed by the AC, the District Office must get approval from the AC.

A representative could be referred for sanctions if there are repeated failures to submit evidence related to the case or the representative does not inform SSA about evidence. An Administrative Appeals Judge will consider whether circumstances warrant a referral to the Office of General Counsel (OGC) as a possible violation of the rules. https://www.ssa.gov/OP_Home/hallex/I-01/I-1-1-50.html and https://www.ssa.gov/OP_Home/hallex/I-03/I-3-2-15.html

Call the Law Office of Kathleen M Flynn, LLC at 404-479-4431 if you would like assistance with filing a request for review of an ALJ’s unfavorable decision or a new application for social security disability benefits. Also, please visit our website at www.kathleenflynnlaw.com to learn more about us.