Appeals Council Remands for Additional Evidence

Empire Justice Center April 30, 2019

As highlighted in the Social Security Administration’s (SSA’s) “waterfall chart” on page 6 of this newsletter, the Appeals Council only remanded 10% of the cases that came before it in Fiscal Year 2018. So Sonia Sterrett’s recent victory is especially sweet. Sonia, who is with the Legal Assistance To Disabled program at Erie County Department of Social Services, asked the Appeals Council to review her client’s claim after the ALJ refused to accept evidence, citing the “five day rule.”  See the January 2017 edition of this newsletter for more on SSA’s changes to 20 C.F.R. §§ 404.935 & 416.1435, requiring claimants and representatives to submit evidence, or inform SSA of evidence, five business days before the hearing.


Sonia had informed the ALJ within the proper time frame that she was awaiting evidence from Erie County Medical Center. As she explained, the facility had been experiencing computer issues and the records were difficult to locate. She eventually submitted the records subsequent to the hearing but before the decision was issued. But the ALJ refused to consider the evidence, citing the five day rule.  The Appeals Council, in granting review of the ALJ decision, found that the ALJ should have considered the evidence, as the representative informed the ALJ of the records more than five business days prior to the hearing.


The Appeals Council also ordered the ALJ to reconsider her decision that she could not “disentangle” the claimant’s substance abuse restrictions and limitations from those resulting from his other mental impairments, citing SSR 13-1p. It also found the ALJ should have considered whether the claimant’s failure to follow treatment recommendations was related to his mental impairment.  It ordered the ALJ on remand to obtain, if warranted, a medical expert to evaluate these issues.


Kudos to Sonia for convincing the Appeals Council to uphold her client’s rights.