Advocates are often frustrated by the Appeals Council’s failure to consider evidence submitted to the Appeals Council as new and material evidence, per 20 C.F.R. §§ 404.970 & 1470. It appears the Court of Appeals for the Second Circuit was also frustrated by the Appeals Council’s refusal to consider new evidence that predated the Administrative Law Judge’s (ALJ’s) decision showing the plaintiff needed home care for help with all her activities of daily living. The Court was also troubled by the ALJ’s oversight of new evidence presented at the hearing demonstrating the plaintiff’s condition had significantly worsened between the time of her application and the ALJ hearing.
Although the pro se plaintiff raised this argument for the first time on appeal, the court reached the merits to avoid manifest injustice. The court also found the ALJ had failed in his affirmative duty to develop the record, especially where plaintiff’s attorney at the time of the hearing had informed the ALJ that the plaintiff had significant changes in her condition and was receiving at-home medical care because of her functional limitations. Blash v. Commissioner of Soc. Sec., — F. App’x —, 2020 WL 2517062 (2d Cir. May 18, 2020).