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HALLEX I-3-101

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-101 INITIAL ANALYST ACTIONS ON REQUESTS FOR REVIEW

Citations: > 20 CFR 404.938, 404.970, 416.1438, 416.1470

Hearings and Appeals Analysts conduct preliminary case reviews and consider substantive issues as described in the following sections.



HALLEX I-3-102

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-102 REQUEST FOR REVIEW--PRELIMINARY REVIEW BY ANALYST

A. Preliminary Review--Timeliness

1. Examine the file to verify that the request for review was filed timely. See Section > I-3-060 B.

2. If the request for review was not filed timely, determine whether the file contains an explanation for the late filing.

a. If an explanation is not in the file, refer to section > I-3-402 for development required.

b. When an explanation is in the file, determine whether it may establish good cause for missing the deadline, using the standards set forth at > 20 CFR 404.911/416.1411. If it appears that good cause is established, and the request for review is proper in all other respects, consider the merits of the case and prepare an analysis (including a recommendation that good cause be found) for the Appeals Council. If it appears that good cause has not been established, prepare a recommendation to dismiss the request for review and a dismissal order for the Appeals Council's consideration. See chapter > I-3-400.

B. Preliminary Review--Proper Party

Examine the file to determine whether the request for review was filed by a proper party. See section > I-3-405 B.1.

C. Preliminary Review--Completeness of File

Examine the file to determine whether the file is complete.

1. The cassette is in the file when an oral hearing was held.

2. Both files are present in a concurrent case.

3. Requests for extensions of time, duplicate cassettes or exhibits have been acted upon.

4. Form SSA-1696 is in the file, when the claimant is represented.

D. Preliminary Review--Due Process Factors

Determine whether procedural requirements were correctly followed at the hearing level.

1. The notice of hearing was mailed at least 20 days before the hearing.

2. The notice of hearing stated all of the specific issues to be decided.

3. When the Administrative Law Judge (ALJ) did not conduct an oral hearing and issued a less than fully favorable decision, the file must contain documentation of the claimant's waiver of the right to appear. See SSR > 79-19 and HALLEX Division 2, section > I-2-145F.

4. The ALJ afforded the claimant proper notice of the right to present evidence or review post-hearing evidence.

5. See > I-3-125 if the claimant alleges an unfair hearing.



HALLEX I-3-103

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-103 REQUEST FOR REVIEW--SUBSTANTIVE REVIEW BY ANALYST

A. General

The analyst will review the ALJ's action and the evidence of record, and may review non-exhibit documents in the claim file to determine whether any documents contain additional material evidence. The analyst must also review any contentions and additional evidence submitted in connection with the request for review.

B. Standard of Review (See > I-3-301 to > I-3-307)

Pursuant to > 20 CFR 404.970/416.1470, the analyst must recommend that the Appeals Council grant review if:

1. There appears to be an abuse of discretion by the ALJ;

2. There is an error of law;

3. The action, findings or conclusions of the ALJ are not supported by substantial evidence;

4. New and material evidence, which relates to the period on or before the date of the ALJ's decision, is submitted and the ALJ's action, findings or conclusion is contrary to the weight of the evidence currently of record; or

There is a broad policy or procedural issue that may affect the general public interest.



HALLEX I-3-105

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-105 REVIEW OF ALJ DISMISSALS

A. Failure to Appear

1. If no good cause development is received with the request for review, the analyst must request the claimant to show good cause for failure to appear at the hearing before the analyst makes a recommendation to the Appeals Council.

If the claimant has a representative, send the request to the representative.

If the claimant does not have a representative, send the request through the field office.

2. In determining whether good cause exists, consider both the facts at the time of the dismissal and relevant facts submitted to OHA afterward.

3. Requests for hearing which the ALJ dismissed on the basis of failure to appear under > 20 CFR 404.957(b) or 416.1457(b) will be handled as follows:

a. If good cause is not established, the Appeals Council will deny the request for review.

b. If the claimant shows good cause such that it would be an abuse of discretion to deny the request for review, the Council will find good cause and remand for a hearing.

c. If the claimant submits additional information to the Appeals Council and the Council believes good cause could be found, but a contrary finding would not be an abuse of discretion, the Council will remand for the ALJ to decide good cause. If the ALJ finds good cause, a hearing will be held on the merits. If the ALJ finds good cause does not exist, the ALJ will again dismiss the request for hearing. See Appeals Text Guide 6-20-10.

4. Requests for hearing which the ALJ dismissed for failure to appear and the hearing office did not follow the requirements of > 20 CFR 404.938/416.1438 and 404.957(b)(2)/416.1457(b)(2).

a. The cited sections provide that when the claimant or representative does not acknowledge receipt of the notice of hearing, the hearing office will attempt to contact the claimant for an explanation. When no contact is attempted, the ALJ may not dismiss the request for hearing for failure to appear unless the ALJ sent a notice to show cause for failure to appear.

b. If the hearing office did not follow appropriate procedures, prepare a remand order to afford the claimant another opportunity for a hearing. See Appeals Text Guide 6-20-11.

B. Withdrawal

When an ALJ dismissed a request for hearing based on the claimant's withdrawal under > 20 CFR 404.957(a) and 416.1457(a), the claimant is not entitled as a matter of right to file another request for hearing on the same application, even if the claimant files it within 60 days after the date of receipt of notice of the previous determination. However, if such a second request for hearing is filed within the prescribed period, the ALJ will treat it as a request to vacate the prior dismissal. A finding of good cause for vacating the dismissal will depend upon all the facts at the time of the dismissal and all subsequent facts.

C. Res Judicata

When an ALJ dismissed a request for hearing based on res judicata under > 20 CFR 404.957(c)(1) and 416.1457(c)(1), the analyst must ensure that:

- there has been a previous determination or decision under the same subpart with respect to the same party;

- the previous determination or decision was based on the same facts and on the same issue(s); and

- the previous determination or decision has become final by either administrative or judicial action.

See > I-3-309 for a complete discussion of res judicata.



HALLEX I-3-106

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-106 REVIEW OF ALJ RECOMMENDED DECISIONS (REVISED 06/92)

The conditions under which an ALJ must issue a recommended decision are described in > I-2-815. In addition, an ALJ may issue a recommended decision at his or her discretion.

The format and content of a recommended decision are the same as a final decision except that:

- the word "RECOMMENDED" is added to the heading of the decision; and

- the decisional paragraph identifies the decision as a recommended decision only and states that the Appeals Council will take final action.

The notice which transmits the recommended decision advises the claimant that he or she has 20 days from the date of receiving the decision to file briefs, exceptions or other written statements as to the applicable facts and law.

Recommended decisions in both court and non-court cases will be flagged by the hearing office. Upon receipt, the OAO branch will screen the cases for recommended fully favorable decisions to ensure expeditious processing.

The Appeals Council will review the recommended decision and issue the final decision of the Secretary unless the Council remands the case to an ALJ for further proceedings or dismisses the request for hearing, in a non-court case, if appropriate. In a non-court case, the Appeals Council may dismiss the request for hearing for any reason the ALJ could have dismissed it. (See > I-3-420, Appeals Council Dismissal of Request for Hearing.) The evidentiary standard applied by the Appeals Council in deciding whether to adopt a recommended decision is the weight of the evidence test. (See > I-3-304 B., Weight of the Evidence.)

See chapter > I-3-800 for a complete discussion of Appeals Council decisions.



HALLEX I-3-107

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-107 PROCESSING SUBSEQUENT APPLICATIONS WHEN A PRIOR CLAIM IS PENDING JUDICIAL REVIEW (ADDED 10/92)

The Social Security Administration cannot, in adjudicating a subsequent claim, invade the period already considered by the Secretary in a prior claim which is pending judicial review. The Appeals Council will limit its consideration of the subsequent claim to the period, if any, following the period which is the subject of the judicial review. The Appeals Council may establish onset as early as the first day following the previously considered period, i.e., as early as the day after the date of the prior final ALJ or Appeals Council decision.

If the Appeals Council establishes an onset date at any point after the date of the prior final ALJ or Appeals Council decision, the Council staff will request the effectuating component to forward the file, after effectuation, to the Office of Civil Actions, 5107 Leesburg Pike, Falls Church, Virginia 22041-3200, for consideration of the possible effect of the allowance on the claim pending judicial review (see > I-4-230).

If it is unclear whether a prior claim is pending judicial review, the PRB analyst will call the Office of General Counsel Docket Section at 410-965-8157, to determine the status of the civil action.

NOTE: ALJs are no longer required to issue recommended decisions when a prior claim is pending judicial review.



HALLEX I-3-110

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-110 ACTIONS BEFORE MAKING RECOMMENDATIONS TO THE APPEALS COUNCIL

The analyst may need additional information to make a recommendation to the Appeals Council. Among the means available to obtain needed information are to:

- refer medical questions to the Medical Support Staff (MSS);

- request updated or additional earnings information;

- refer policy questions to the Division of Policy, Planning and Evaluation (DPPE);

- refer non-disability program questions to the Retirement, Survivors, Supplemental Security Income, and Health Insurance Staff; and

- refer field policy questions to the Office of the Chief Administrative Law Judge (OCALJ).

In addition, the Administrative Appeals Judge (AAJ) may request an analyst to prepare, for the Associate Commissioner's signature, a request for an opinion from the Office of the General Counsel.



HALLEX I-3-111

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-111 REFERRAL FOR MEDICAL COMMENTS

A. The analyst may refer a case to the OHA Medical Support Staff (MSS) for information such as the following:

1. advice or interpretation of medical findings or test results;

2. advice about conflicts in the medical evidence;

3. advice about specific testing, multiple consultative examinations (CEs), or consolidated CEs that should be requested in cases when a CE is necessary;

4. a medical statement as to whether the claimant's impairments meet or equal the listings; or

5. a medical assessment of the claimant's ability to perform work related activities.

B. The Request for Medical Comments, Form HA-542.1 or, for Disabled Widow(er)'s Benefits cases, Form HA-542.3, must contain the pertinent medical history, including:

1. reference to pertinent medical reports which have been included in the record or are proposed for introduction into the record;

2. reference to exhibit numbers; and

3. a summary of pertinent oral testimony.

C. The analyst must route referrals to MSS through the branch chief for approval.

D. MSS comments are advisory in nature. The analyst must consider the entire file, including MSS comments, in making a recommendation to the Appeals Council.

E. If the Appeals Council issues a decision based in whole or in part on MSS comments, the Council will enter the comments into the record.



HALLEX I-3-112

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-112 REQUEST FOR EARNINGS INFORMATION (REVISED 06/94)

A. General

The analyst may determine that additional earnings information is necessary to adjudicate a case.

1. An updated earnings record is required before the Appeals Council issues a favorable or partially favorable decision. The analyst will obtain either a DEQY (detailed earnings query) or a SEQY (summary earnings query) to determine whether work after onset is an issue which requires further development before forwarding a recommendation to issue a fully or partially favorable decision to an Administrative Appeals Judge. If the earnings record reveals postings after the proposed onset date, the analyst will recommend the action necessary to resolve the issue.

2. An updated earnings record may be necessary to:

a. determine whether insured status is met at a certain date;

b. verify reporting of former lag earnings;

c. determine deductions in Retirement and Survivors Insurance cases; or

d. ascertain work activity after onset.

3. The analyst will request routine earnings record information electronically, by means of accessing SSA mainframe computers through SSA's Master File Query Menu. In most cases, an online benefit estimate, e.g., an SEQY, DEQY, or PIAEST (see B. below) will suffice.

4. In cases involving unposted earnings, a manual search ("scouting") of Office of Central Records Operations (OCRO) records is required. This is accomplished by the analyst completing Form HA-534-U3, Request for Earnings Record Information. This form is then submitted to OCRO via mail or telephone.

After requesting earnings information, using an HA-534-U3, the analyst will diary the case for 45 days. If the information is not received by the diary date, the analyst must refer the case to the branch chief for follow-up.

B. Request for Earnings Information--Types of Queries

1. Summary Earnings Query (SEQY)

MINIMUM DATA ENTRY REQUIRED: SSN and the years to be queried.

DATA AVAILABLE: Total covered earnings, including Medicare Qualified Government Employment (MQGE), are displayed for each year requested.

LIMITATIONS: Quarters of coverage (QCs) are not displayed; specific years before 1951 are not displayed.

ADVANTAGES: Response is available on-line, and satisfies the need for information regarding total yearly earnings.

INTERPRETATION: Information on accessing online queries is contained in the Modernized System Operations Manual (MSOM) and information on reading and interpreting queries is contained in POMS SM 00345.000 ff.

2. Detailed Earnings Query (DEQY)

MINIMUM DATA ENTRY REQUIRED: SSN and the years to be queried. If employer's name and address are needed, also furnish the EIN (Employer Identification Number).

DATA AVAILABLE: In general, the DEQY is useful for years after 1977. Covered and non-covered earnings, employer names and addresses, and pension data are available for each year requested.

LIMITATIONS: QC's are not displayed; years before 1978 are generally not available.

ADVANTAGES: As non-covered earnings and employer names and addresses are available on-line, this information may aid in substantial gainful activity investigations.

INTERPRETATION: Instructions are contained in sections RM 03910.050 - RM 03910.345 of the POMS.

3. Estimate Earnings Record (ES)

MINIMUM DATA ENTRY REQUIRED: SSN, name (shown as first name, last name), date of birth (in six digits) and sex of the number holder (M/F). For benefit computations, date of onset of disability or death is also needed.

DATA AVAILABLE: Total earnings, itemization of QC's for years after 1950, and benefit computations. In general, specific information is not available for years prior to 1951.

LIMITATIONS: The detail contained in DEQY is not present, and the response to this query is not on-line. Responses take one to three days, and are routed to the SSADARS printer.

ADVANTAGES: This query is useful for insured status determinations and benefit computations and generally contains all information shown on a full claims earnings record (FCER).

INTERPRETATION: Instructions are contained in section SM 00340.000 ff. of the POMS.

4. Primary Insurance Amount Estimate (PIAEST)

MINIMUM DATA ENTRY REQUIRED: SSN, last name, date of birth (in six digits) and sex of the number holder (M/F). At the present time, PIAEST cannot perform a death or disability computation.

DATA AVAILABLE: Total earnings, itemization of QC's for years after 1950, and computation of old-age benefits for individuals age 60 or older. In general, specific information is not available for years prior to 1951.

LIMITATIONS: As with the ES query, DEQY detail is not present, and the response to this query is rarely on-line. Responses take one to three days, and are routed to the SSADARS printer.

ADVANTAGES: This query is useful for insured status determinations.

INTERPRETATION: Instructions are contained in section SM 00340.780 - SM 00340.795 of the POMS.



HALLEX I-3-113

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-113 REFERRAL TO DIVISION OF POLICY, PLANNING AND EVALUATION

The analyst may determine that policy or procedural advice is needed to resolve novel or unusual situations. The analyst will prepare a memorandum to DPPE for the signature of the AAJ, clearly stating the question with reference to pertinent exhibits, law, regulations, etc. The analyst will route the memorandum to the AAJ through the branch chief and assistant deputy director, OAO. Appeals Council staff will control the referral for any necessary follow-up.

DPPE will route its reply to the AAJ through the Deputy Chair. After the Council has considered the reply, it will return the file to the OAO branch for further action.



HALLEX I-3-114

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-114 REFERRAL TO RETIREMENT AND SURVIVORS INSURANCE, HEALTH INSURANCE, AND SUPPLEMENTAL SECURITY INCOME STAFF

An analyst in a Program Review Branch may refer a case to the Retirement and Survivors Insurance, Health Insurance and Supplemental Security Income (RSI, HI & SSI) Staff if an earnings discrepancy is material to the issue of entitlement or a question arises about when or whether the earnings requirements were met.

An analyst may also refer a case to the RSI, HI & SSI Staff for advice on such material non-disability issues as date of birth, marital relationship in a DWB case, child relationship in a title II childhood disability case, etc.

Any case in which the Appeals Council's action will be limited to non-disability issues will be handled by the RSI, HI & SSI Staff. If such a case had been originally assigned to a Program Review Branch, the PRB must transfer the case to the RSI, HI & SSI Staff. The case control records must reflect the permanent case transfer.



HALLEX I-3-115

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-115 DISCUSSION WITH ADMINISTRATIVE APPEALS JUDGE

If necessary, after consulting with the branch chief, an analyst may discuss a case with the AAJ before preparing a written analysis and recommendation when novel or unusual issues or circumstances are involved. The analyst must be prepared to discuss fully the facts and issues involved, and to make a recommendation.


HALLEX I-3-120

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-120 RECOMMENDATION TO APPEALS COUNCIL

A. General

The Appeals Council may deny, dismiss or grant a request for review. The Appeals Council may also review a case on its own motion within 60 days after the date of the hearing decision or dismissal.

EXCEPTION: In First Circuit cases, the own motion review notice must be mailed by the 57th day. However, if it is between the 57th and 60th day and the ALJ's decision is clearly erroneous (e.g., lack of insured status, work activity, etc.), refer the case to the Appeals Council with the analysis and notice. The AAJs will decide whether to review the case on the Council's own motion. (See section > I-3-653.)

If the Appeals Council grants the request for review or reviews a case on its own motion, it may issue a decision, remand the case to an ALJ for further proceedings, or dismiss the request for hearing.

In certain circumstances, the Appeals Council may take other actions:

- reopen or decline to reopen a determination or decision;

NOTE: In the First Circuit, pursuant to McCuin v. Bowen, the Appeals Council may not reopen a decision after the 60 day own motion period has expired, unless the claimant requests reopening.

In the Eleventh Circuit, pursuant to Butterworth v. Bowen, only an ALJ may reopen an ALJ's decision.

- extend or decline to extend the time for filing a civil action;

- receive additional evidence into the record;

- proffer evidence to a claimant or the representative;

- respond to issues raised by a claimant or the representative;

- grant or deny a claimant's request for an appearance; and

- respond to an ALJ's motion for clarification of a remand order.

When recommending that the Appeals Council take any action, the analyst must prepare the appropriate action document and forms and route them with the case to the designated "A" AAJ for review and to a "B" AAJ, if a "B" AAJ's concurrence is required.

B. Tone and Content of Analysis and Action Document

In preparing recommendations and action documents, the analyst must use professional and courteous language and refer to deficiencies in a record or decision on the basis of objective criteria. The analyst may not use language that may be emotionally charged, provocative, or offensive. Omit personal reactions to any facet of a claimant's life, personality, impairments, behavior, etc., or to the ALJ's conduct.

C. Preparation of Recommendation

1. Complete the pertinent parts of Form HA-52, Disability Case Fact Sheet, and Form HA-52A, Disability Case Analysis and Recommendation, for each request for review, unappealed review and protest case referred to the Appeals Council.

- Complete the Disability Case Fact Sheet to reflect the ALJ's findings.

- Enter analysis, critiques and recommendations only on the Disability Case Analysis and Recommendation form and any necessary continuation sheets.

- Do not include gratuitous remarks regarding claimants, attorneys, ALJs, hearing office procedures, etc., anywhere in a recommendation to the Appeals Council.

2. Refer to the appropriate chapter for specific instructions on the following:

Dismissal of Request for Review: I"3"400

Dismissal of Request for Hearing: I"3"420

Denial of Request for Review: I"3"500

Grant Request for Review: I"3"600

Own Motion Review: I"3"650

Remand: I"3"700

Decision: I"3"800

Reopening: I"3"900



HALLEX I-3-125

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-125 UNFAIR HEARING ALLEGATIONS

A. General

A claimant or representative may allege in writing that a hearing was unfair because of prejudice, bias, or other misconduct on the part of the ALJ. The allegation may be based on an on-the-record or an off-the-record action of the ALJ. The Administrative Procedure Act (> 5 USC 556(b)) provides that an agency shall make its determination on the allegation a part of the record and decision in the case. However, an agency may dismiss the allegation summarily if it is insufficient upon its face. For example, the claimant may simply state that the hearing was unfair because the ALJ issued an unfavorable decision. Determine the validity of on-the-record allegations by examining the record and auditing the hearing recording. (See section > I-3-152.) Off-the-record actions of the ALJ which may result in charges of unfair hearing can involve such things as intimidation, innuendo, attitude, facial expression, etc.

B. Unfair Hearing Allegations Involving On-the-Record Actions

1. General

The analyst must listen to the hearing recording, make notes relating to the allegation(s), and place the notes in the appeals file. The analyst must also prepare an analysis of the merits of the case and the allegation of unfair hearing and make appropriate recommendations concerning these matters.

2. Analyst Recommendations--Fair Hearing Held

- If an analyst believes that the hearing was fair and the allegation based on an on-the-record ALJ action was not supported in the record, and there is no other basis for granting review, the analyst will recommend denial of the request for review and prepare an appropriate statement to include in the denial notice. The statement must contain the Appeals Council's findings and conclusions addressing the allegation of unfair hearing.

- When an analyst recommends that the Appeals Council grant review to remand the case for reasons unrelated to the allegation of unfair hearing, a similar statement summarizing the Council's findings about the allegation should be included in the remand order.

- When an analyst recommends that the Appeals Council grant review and issue a decision for reasons unrelated to the allegation, the decision must contain the Council's findings and conclusions addressing the allegation of unfair hearing.

3. Analyst Recommendations--Fair Hearing Held But ALJ's On-the-Record Action Was Irregular or Inappropriate

The analyst may conclude that the hearing was fair but the ALJ's action was irregular or inappropriate. For example, if the ALJ argued with counsel the analyst will proceed with an appropriate recommendation for action and include a discussion of the allegation in the analysis and action document. The action document must indicate that the Appeals Council's study of the hearing testimony and other evidence of record showed that the hearing was fair and that the ALJ's action did not interfere with the claimant's right to due process. In addition, the analyst will recommend whether, after completion of the Appeals Council's action, the ALJ's action should be brought to the attention of the Deputy Chair and Chair of the Council.

4. Analyst Recommendations--Unfair Hearing Allegation Substantiated

a. If the analyst believes the allegation of unfair hearing is supported by the record, and that a fully favorable decision is warranted, the analyst should proceed with that recommendation and decision. The Council's decision must include its findings and conclusion that the unfair hearing allegation is supported. The unfair hearing allegation will then be referred to Deputy Chair and Chair of the Appeals Council after the Council's action is completed.

b. If the analyst believes the allegation of unfair hearing is supported by the record but a fully favorable decision is not warranted, the analyst will recommend that the Appeals Council remand the case to another ALJ for a new hearing and decision. The AAJ will provide the Deputy Chair and Chair of the Council with information relating to the unfair hearing.

c. As necessary, the AAJ will refer cases involving substantiated allegations of an unfair hearing through the Deputy Chair to the Chair of the Council.

C. Unfair Hearing Allegations Involving Off-the-Record Actions

1. General

The analyst will listen to the hearing recording, make notes relating to the allegation, and place the notes in the appeals file. The analyst will also prepare an analysis of the merits of the case and the allegation, and make appropriate recommendations. Because these allegations involve off-the-record ALJ action, the case analysis should recommend whether the Appeals Council should conduct an examination.


2. Analyst Recommendations--ALJ Off-the-Record Action Involved--Fair Hearing Held

- If the analyst believes the hearing was fair, the allegation based on an off-the-record ALJ action was unsubstantiated, and finds no other basis for recommending that the Appeals Council grant review, the analyst will recommend denial of the request for review and prepare a statement to include in the denial notice. The statement will indicate that the Council could find no support for the allegation.

- If the analyst recommends that the Appeals Council grant review for reasons unrelated to the allegations and remand the case or issue a decision, the analyst will prepare an appropriate statement to include in the remand order or decision. The statement must contain the Appeals Council's findings and conclusions addressing the allegation of unfair hearing.

3. Allegations Based on Off-the-Record ALJ Actions--Examination Necessary

When an allegation of unfair hearing is based on an off-the-record ALJ action, and the allegation is not frivolous or insufficient on its face, the analyst will proceed with an analysis of the case including a recommendation on both the merits of the case and the allegation.

a. When the record supports a recommendation for fully favorable action, the analyst should proceed with the recommendation. If the Appeals Council agrees, a request to OCALJ for an examination will be prepared after the Council completes its action on the case.

b. When the record supports a recommendation for remand for reasons unrelated to the unfair hearing allegation, the analyst should proceed with that recommendation. The proposed remand order will include an instruction that the case must be assigned to another ALJ. If the Appeals Council agrees, the analyst will prepare a request to OCALJ for an examination after the remand order is released.

c. In all other circumstances, the analyst must prepare a recommendation setting forth the appropriate action on the case pending the outcome of an examination of the unfair hearing allegation. The AAJ(s) will discuss with the Deputy Chair the method for addressing the unfair hearing allegation in each case.

D. Judicial Misconduct

In rare instances, the Appeals Council is faced with the issue of judicial misconduct by an ALJ with respect to the disposition of general types of cases. For example, an allegation of this nature may contend that a particular ALJ is biased against all disability claimants. When such allegations are made, or when the Council's own review suggests such misconduct by an ALJ, the Appeals Council will determine whether the issue warrants formal proceedings beyond the review of individual cases as follows:

1. Individual AAJ Consideration

Based on issues in individual cases, whether raised by the claimant/representative or sua sponte, the AAJ determines whether Jurisdictional Group consideration is warranted.

2. Jurisdictional Group Consideration

The AAJ presents the issue to the Group which will determine whether to conduct further review within the Group. The AAJ will notify the Chair and Deputy Chair if the group will conduct further review.

3. Findings

Findings are presented to the Appeals Council in banc for a decision on what action is needed, ranging from no action to convening a formal panel to review the allegations.



HALLEX I-3-130

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-130 WORKUP OF CASE BY ANALYST--UNAPPEALED REVIEW

A. Selection of Case

Unappealed title II disability decisions, both favorable and unfavorable to the claimant, are randomly selected based on the terminal digits of the social security number and forwarded to the appropriate OAO branch.

B. Assignment of Case

To comply with the 60-day period allowed by regulation for the Appeals Council to act on its own motion, branch control personnel must assign unappealed review cases to analysts upon receipt, and the cases must be worked as promptly as possible.

C. Standard of Review

In determining whether to recommend that the Appeals Council review a case on its own motion, the analyst will apply the same standard used in request for review cases, except that the Council generally will not review a case on its own motion to correct a decisional error which does not change the ALJ's ultimate conclusion unless the error might affect subsequent entitlement.

D. Time Limit for Own Motion Review

The Appeals Council must send a claimant and representative written notification of its intent to review a case on its own motion by certified mail no later than the 60th day after the date of the ALJ's action, except in the First Circuit where the notice must generally be mailed by the 57th day. (See section > I-3-653.) If the Council reviews a favorable disability decision on its own motion, the notice must advise the claimant that interim benefits may be payable if a final decision is not issued within 110 days after the date of the ALJ's decision.

E. Appeals Council Authority

The review of unappealed random sample cases is conducted under the Appeals Council's own motion authority, not the reopening provisions. However, the Council may exercise its discretion to reopen a decision when a clear factual error exists, such as the lack of insured status or work activity after onset.

F. Cases in Which Appeals Council Action is Not Required

1. Favorable ALJ Decision: Effectuation

When the analyst finds no basis under the regulations for the Appeals Council to assume jurisdiction of an ALJ's favorable decision, the analyst must forward the claim file immediately for effectuation of the decision by:

- completing the section marked "For OHA CO Use Only" on the Form HA-514-C6, Transmittal of Decision or Dismissal by ALJ, and

- routing the case to the appropriate effectuating component.

2. Unfavorable ALJ Decision or Dismissal: Own Motion Not Recommended

When the analyst finds no basis under the regulations for the Appeals Council to assume jurisdiction of an ALJ's unfavorable decision or dismissal, the analyst will complete forms HA-52 and HA-52A, file them in the appeals file, and route the case to DFB. DFB will hold the file pending receipt of a request for review.

G. Own Motion Recommended

If review of the record and a complete tape audit indicate that a recommendation for own motion review by the Appeals Council is appropriate, the analyst will follow the procedures in section > I-3-650 ff. in preparing and routing the recommendation and action document. Because the Council must take own motion within 60 days after the ALJ's action, the analyst must make every effort to get the case to the AAJ no later than the 55th day after the ALJ's decision or dismissal. When it is not possible to meet this deadline, the analyst will carry the case to the AAJ to ensure that action may be taken within the 60-day limit.

If the 60-day time limit for own motion has expired, the analyst will return the case to the effectuating component unless there is a clear factual error, such as the lack of insured status. The Appeals Council will not use the reopening provisions of the regulations in unappealed review cases when the 60-day own motion period has expired unless there is a clear factual error.



HALLEX I-3-140

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-140 WORKUP OF CASE BY ANALYST--BUREAU PROTEST CASES CONSIDERATION OF OWN MOTION REVIEW (REVISED 06/94)

A. Selection of Protest Case

When effectuating components believe a decision is contrary to the law, regulations, or rulings, they may forward an ALJ or Appeals Council decision to the Deputy Director for Operations, OAO, for further consideration. Effectuating components may also forward cases if they receive additional evidence which requires further action on a case. The Deputy Director's office controls and distributes these cases to the appropriate OAO branch.

B. Assignment of Protest Case

To comply with the 60-day period allowed by regulation for the Appeals Council to act on its own motion, branch control personnel must assign protest cases to analysts upon receipt, and the analysts must work these cases as soon as possible.

C. Review of Protest Cases

See > I-3-130 C. and D. regarding the standard of review and the time limit for own motion review.

D. Protest Situations in Which Own Motion by the Appeals Council Is Not Usually Warranted

There are several common types of "protest" cases and the procedures followed will vary accordingly.

1. Substantive Protests--Own Motion Not Recommended

When a protest memorandum concerns the propriety of the ALJ or Appeals Council's ultimate conclusion on other than technical grounds, i.e., calls into question the merits of the case, and the analyst concludes that own motion review by the Council is not appropriate, the analyst will prepare a case analysis. The analyst will also prepare a draft response to the protesting component for the signature of the AAJ.

2. Protest Concerns Technical or Non-Judgmental Error

When a protest memorandum concerns a technical or non-judgmental error in an ALJ's decision, and correction

of the error will result in a decision at least as favorable to the claimant as the existing decision, the analyst will consult with the branch chief as to whether the ALJ may be contacted by telephone to request an amended decision.

E. Protest Situations in Which Own Motion Is Warranted

If after review of the record and a complete tape audit, a recommendation for own motion by the Appeals Council is appropriate, the analyst will follow the procedures in section > I-3-650 ff. in preparing and routing the recommendation and action document. Because the Council must take own motion within 60 days after the ALJ's action, the analyst must make every effort to get the case to the AAJ no later than the 55th day after the ALJ's action. When it is not possible to meet this deadline, the analyst will carry the case to the AAJ to ensure that action may be taken within the 60-day limit. If the 60-day time limit for own motion has expired, the analyst will consider whether a recommendation to reopen is appropriate. See section > I-3-910, Protest Cases.

The analyst must prepare the Council's action document to include proffer of the protest memorandum to the claimant and representative.

F. Protest Replies

1. If the protest was filed by a Regional Commissioner's Office, it is necessary to respond to the protest memorandum and send status reports to that office. Inform the Regional Commissioner's Office of the action the Appeals Council has taken or intends to take and send subsequent reports (if necessary) at least every 90 days.

2. If the protest was filed by a processing center (PC), i.e., a program service center or the Office of Disability and International Operations, it is not necessary to respond to the protest memorandum when the Appeals Council takes action pursuant to the protest. Specifically, if the Appeals Council takes the action requested and either issues a decision, remands the case to an ALJ, refers the case to an ALJ to consider reopening as discussed in section > I-3-910, Protest Cases, or obtains an amended decision, it is not necessary to respond to the protesting PC.

3. In any case in which the analyst recommends declining to take the action requested by the protesting component, the analyst will also prepare, for the signature of the AAJ, a response explaining the basis for the Appeals Council's declination. The analyst will forward the proposed response to the Council at the same time as the case recommendation.

G. Addresses for Protest Replies

1. ODIO Protests--send response to:

ODIO

1500 Woodlawn Drive

Baltimore, MD 21241

2. PSC Protests--send response to the issuing PSC.

3. Regional Commissioner Protests (SSI and HI cases)--send response to the issuing Regional Commissioner.


NOTE: In SSI cases, send a copy of the response to:

PDB, DPP, OSSI

3-K-1 Operations

Baltimore, MD 21235



HALLEX I-3-150

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-150 OTHER PROCEDURES

The following sections discuss procedures regarding critical cases, cassette audits, and the organization of claim and appeals files.



HALLEX I-3-151

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-151 CRITICAL CASE PROCEDURES (REVISED 02/92)

A. General

OHA designates a case requiring special processing for one of the reasons listed in subsection B., below, a "critical case" to ensure that the appropriate component(s) takes prompt action on the case.

B. Critical Situations

Four situations warrant instituting critical case processing procedures:

1. The claimant's illness is terminal (see subsection C., below);

2. The claimant is without, and is unable to obtain, food, medicine or shelter;

3. There is an indication that the claimant is suicidal or homicidal (see > I-2-137); or

4. The case has been delayed an inordinate amount of time, i.e., pending more than 60 days longer than the average processing time for the office in question, and there is a public, congressional or other high priority inquiry on the case.

C. Terminal Illness

A critical case involving terminal illness (a "TERI" case) requires additional special handling. OHA tracks a TERI case while it is within OHA, and the SSA Regional Office also monitors the case to ensure that it is expedited. TERI cases include any case already identified as a TERI case (by the special flag in > I-3-190 Exhibit 23) when received, and any case involving:

- An allegation (e.g., from the claimant or a friend, family member, doctor or other medical source) that the claimant's illness is terminal;

- An allegation or diagnosis of AIDS;

- A claimant registered in a Medicare designated hospice or receiving hospice care (e.g., in-home counseling or nursing care); or

- A claimant with a condition which medical records indicate cannot be reversed and is expected to end in death. Such cases include (but are not limited to) those involving a claimant:

--with a chronic dependence on a cardiopulmonary life-sustaining device;

--awaiting a heart, heart/lung, liver or bone marrow transplant (excluding kidney and corneal transplants);

--with chronic pulmonary or heart failure requiring continuous home oxygen and who is unable to care for personal needs;

--with a malignant disease (e.g., cancer) who is home confined or institutionalized, unable to care for personal needs and unresponsive to therapy;

--with diabetes and one or more of the following: multiple amputations due to diabetic gangrene; recurrent cardiovascular events (e.g., infarction or failure); or recurrent cerebrovascular events with neurological deficit;

--with chronic liver disease (e.g., cirrhosis or hepatitis) and a history of massive gastrointestinal hemorrhage;

--who is comatose for 30 days or more; or

--who is a newborn with a lethal or severe genetic or congenital defect.

The presence of one of the above criteria does not mandate a finding of disability. Evaluate the claimant's impairment under the sequential evaluation process.

D. Critical Case Identification

Within OHA Headquarters, the Division of Congressional and Public Inquiries (DCPI) is responsible for designating a case as critical, initiating critical case procedures, and requesting expedited payment from the SSA effectuating component, if necessary.

All Headquarters components are responsible for alerting DCPI of any case, not previously identified, which appears to meet the critical case criteria; expediting and hand-carrying all cases designated as critical; and advising DCPI of completed processing actions or delays in processing (see > I-4-399 Exhibit R).

Critical cases (other than TERI) are identified by a Critical Case/Dire Need flag. TERI cases are identified by a special TERI flag.

NOTE: See > I-3-190 Exhibits 22 and 23 for the Critical Case/Dire Need flag and TERI flag. Reproduce these locally.

E. Reporting and Expediting Procedures--Office of Appellate Operations (OAO)

Within OAO, the Program Review Branch (PRB) Chief is responsible for ensuring that the critical case procedures are followed. All PRB employees are responsible for bringing any case which may meet the criteria in subsection B. or C., above, to the attention of the PRB Chief.

Upon receipt of a flagged critical (including TERI) case, the PRB Chief will immediately:

- Ensure that DCPI is aware of the case; and

- Commence expedited processing, as described below.

Upon receipt of critical case information newly raised during the time that a case is pending in OAO, the PRB Chief will ensure that such information is hand-carried to DCPI. (In the case of a telephone report, a report of contact describing the telephone conversation will be provided to DCPI.)


Following designation of a critical case (including TERI) by DCPI, the PRB Chief will immediately assign the case and ensure that staff:

1. Attach to the front of the claims file (to each claims file in a concurrent case) a Critical Case or TERI flag, as appropriate (see > I-3-190 Exhibits 22 and 23);

2. Expedite processing by immediately working the case and hand-carrying it between processing stages; and

3. Advise DCPI of any delays in processing.

For TERI cases, PRB staff will also:

4. Ensure that the TERI flag is completed and correct, including attorney fee waiver information, if available;

5. Send a photocopy of the TERI flag to DCPI;

6. Enter "TERI Case" into the OAO tracking system; and

7. For TERI cases first identified in the branch, immediately notify the SSA field office to begin non-medical development.

NOTE: When routing TERI cases to another component or office, clearly annotate transmittal slips/envelopes "TERI Case" and send the case via the most expeditious means practical (e.g., hand-carrying, express mail, SSA Central Office shuttle).

F. Completion of OAO Action

1. Fully or Partially Favorable Appeals Council Decision

If the Appeals Council issues a fully or partially favorable decision, the PRB Chief will advise DCPI of the Appeals Council's action and follow DCPI's instructions on routing. DCPI will ask that the PRB either mail the case to the effectuating component, or hand-carry it to DCPI so DCPI can arrange immediate payment. If the case is sent to the effectuating component, the PRB Chief will ensure that PRB staff:

- Hand-carry the case to the mailroom to be sent to the effectuating component, using the address supplied by DCPI, by the most expeditious means practical (e.g., express mail service, SSA Central Office shuttle); and

- For TERI cases, clearly annotate all transmittals and envelopes "TERI Case."

In a court case, if a certified administrative record (CAR) is needed because the Appeals Council is issuing a partially favorable decision, the PRB Chief will hand-carry the case to the OCA division to have the CAR prepared. If OAO is mailing the case for effectuation, the CAR will be prepared before mailing. If DCPI is arranging immediate payment, the CAR will be prepared after DCPI makes these arrangements, but before DCPI forwards the file to the effectuating component. All these actions will be taken within 24 hours of issuance of the decision.

NOTE: The TERI case flag may not be removed. DCPI will continue to monitor processing until all retroactive benefits, if any, have been paid.

2. Appeals Council Denial, Dismissal or Unfavorable Decision

If the Council's action is unfavorable, the PRB Chief will notify DCPI, ensure that staff release the decision promptly and follow normal procedures for distributing copies of the decision, arranging preparation of the CAR (in a court case), and/or retaining the file(s).

3. Appeals Council Remand

If the Appeals Council issues a remand to an ALJ, the PRB Chief will notify DCPI, expedite standard procedures for releasing the remand order, and forward the file(s) to the hearing office by the most expeditious means practical (e.g., express mail). For TERI cases, clearly annotate all transmittals and envelopes "TERI Case."

G. Conditions Which Justify Removing Critical Case Designation

DCPI may remove the critical designation and discontinue tracking a critical case other than a TERI case when the condition(s) which formed the basis for the critical designation no longer applies. Neither DCPI nor OAO may remove TERI case flags or cancel TERI designations.



HALLEX I-3-152

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-152 CASSETTE AUDIT REQUIREMENTS

A. An analyst must audit the entire hearing tape(s) in the following situations:

- in unappealed cases and protest cases in which the analyst is recommending own motion review for reversal or remand;

- in request for review cases involving

--an allegation of an unfair hearing, or

--a recommendation that the Appeals Council grant review to issue a less than fully favorable decision.

B. An analyst must audit portions of the hearing tape(s) in other situations. In particular, the analyst must audit all expert testimony; e.g., testimony of a Medical Expert, treating physician, Vocational Expert.

C. Refer to Exhibit 1 for a summary of current instructions regarding tape audits and audit notes. The chart reflects the minimum requirements; the analyst must audit all or part of any tape if it appears that the information obtained could have a bearing on a recommendation for Appeals Council action.



HALLEX I-3-153

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-153 ORGANIZATION OF CLAIM FILE

To facilitate the Appeals Council's review of cases, the analyst must organize the claim file as follows:

- If a case involves several folders, place the claim file containing the appropriate exhibits on top.

- Leave no material loose in the claim file; prong file all material.

- The cassette must remain on the left side of the claim file.

- Place original correspondence, additional evidence and Appeals Council exhibits on the right side of the claim file.

- Prong file non-exhibit material behind the exhibit marker in the claim file.

- Both analysts and branch control staff are responsible for making needed repairs to claim files.



HALLEX I-3-154

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-154 ORGANIZATION OF APPEALS FILE

The Docket and Files Branch (DFB) will prepare an appeals file on all request for review cases it forwards to OAO branches. The green appeals file will be annotated with the claimant's Social Security number.

The OAO branch will prepare an appeals file in all protest cases and in those unappealed review cases which are referred to the Appeals Council.

The appeals file will contain:

- A copy of the request for review (Form HA-520) or protest memorandum, as appropriate.

- A copy of the hearing decision or dismissal order if an extra copy is readily accessible in the claim file.

- OAO working papers (including case analyses, audit notes, etc.), copies of correspondence, Appeals Council orders, decisions, etc.

When forwarding cases to the Appeals Council, the analyst will ensure that the route slip is stapled to the front of the appeals file, which will then be banded on top of the claim file. Place action documents for Appeals Council signature in the appeals file.



HALLEX I-3-155

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-155 SIGNATURE RULES

TYPE OF CORRESPONDENCE POLICY ON SIGNATURE

----------------------------------------- ------------------------------------

1. Response to Request for Review:

a. Grant 1. a. "A" and "B" AAJ

b. Denial b. "A" AAJ

c. Dismissal c. "A" AAJ

2. Notice of Own Motion 2. "A" AAJ, but only after two AAJs

have agreed to O/M

3. Response to Claimant's Request to

Reopen:

a. Grant 3. a. "A" and "B" AAJ

b. Denial b. "A" AAJ

4. Reopening Notice--Appeals Council 4. "A" and "B" AAJ

Proposal to Find

5. Dismissal of request for hearing by 5. "A" and "B" AAJ

Appeals Council

6. AC Decision Adopting Fully Favorable 6. "A" AAJ: Deputy Chair; "B" AAJ:

ALJ Recommended Decision in Court Director of OCA as AAJ of AC

Remand Case

7. a. All other AC Decisions 7. a. "A" and "B" AAJ

b. Transmittal Letter b. "A" AAJ

8. a. Appeals Council Remands 8. a. "A" and "B" AAJ

b. Transmittal Letter b. "A" AAJ

9. Court Remand Order Transmitted to

Administrative Law Judge:

a. Request for Review was Denied 9. a. Director of OCA as AAJ of AC

("Screening Order")

b. Appeals Council issued Decision b. "A" AAJ

("Customized Order")

10. Notice to Claimant Following Court

Remand:

a. Remand Cover Letter--Request for 10. a. Director of OCA as AAJ of AC

Review was Denied

b. Remand Cover Letter--Appeals b. "A" AAJ

Council Issued Decision

c. Notice to Claimant--Appeals c. "A" AAJ, but only after two

Council Intends to Develop the Remand AAJs have agreed to proposed

and/or Issue a New Decision without action.

Remand to the ALJ

11. Order entering AC exhibits 11. "A" AAJ

12. PRTF 12. "A" and "B" AAJ

13. Reply to Administrative Law Judge's 13. "A" AAJ, but only after two AAJs

Questioning of Appeals Council Remand have agreed to the reply.

14. Response to Request for Appearance:

a. Grant the Request 14. a. "A" and "B" AAJ

b. Deny the Request b. "A" AAJ

15. Response to Request for Extension of

Time to Submit Evidence: Request for

Review

a. First Letter--Favorable or 15. a. Hearings and Appeals Analyst,

Unfavorable using this specific job title on

correspondence.

b. Second Letter--Favorable or b. Branch Chief, using this

Unfavorable specific job title on

correspondence, but only after

obtaining prior oral approval of

"A" AAJ of proposed action. Branch

Chief shall document "A" AAJ's

decision in file.

16. Response to Request for Extension of

Time to File Civil Action

a. Grant Request 16. a. Hearings and Appeals Analyst,

using this specific job title on

correspondence, but only after

obtaining prior oral approval of

"A" AAJ of proposed action.

Analyst shall document "A" AAJ's

decision in file.

b. Deny Request b. "A" AAJ

17. Response to Request for Transcripts, 17. Hearings and Appeals Analyst,

Copy of Exhibits (cost not expected to using this specific job title on


exceed $50.00) or Transcript Refund correspondence.

Letter

18. Letter Forwarding Copy of Transcript, 18. Hearings and Appeals Analyst,

Exhibit or Cassette using this specific job title on

correspondence.

19. Letter Requesting an Appointment of 19. Hearings and Appeals Analyst,

Representative (SSA"1696) using this specific job title on

correspondence.

20. Letter Acknowledging Receipt of 20. Hearings and Appeals Analyst,

Request for Review and Notifying using this specific job title on

Claimant that Appeals Council Action correspondence.

Will Be Delayed 45 Days or More

21. Profert of Hearing Level 21. Hearings and Appeals Analyst,

Evidence--Case at AC Level of Review using this specific job title on

correspondence.

22. Response to Request to Cross"Examine 22. "A" AAJ signature, with the

Medical Support Staff agreement of the "B" AAJ.

22. Response to Request to Cross"Examine 22. "A" AAJ signature, with the

Medical Support Staff agreement of the "B" AAJ.

23. Letter with Profert of MSS Answers 23. "A" AAJ signature, with the

agreement of the "B" AAJ.

24. Memorandum to District Office or 24. Hearings and Appeals Analyst,

Branch Office Concerning Substitute using this specific job title on

Party correspondence.

25. Request for "Good Cause" Explanation 25. Hearings and Appeals Analyst,

in Cases in Which Request for Review using this specific job title on

Was Untimely Filed correspondence.

26. Memorandum to District Office or 26. Hearings and Appeals Analyst,

Branch Office for Development of Good using this specific job title on

Cause correspondence.

27. Letter to Physician or to Claimant 27. Hearings and Appeals Analyst,

Regarding Unsigned Physician Report using this specific job title on

correspondence.

28. Class Action Dismissals/Remands 28. Deputy Chair



HALLEX I-3-156

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-156 CIVIL ACTION FILED PREMATURELY

On occasion, a claimant may file a civil action while the request for review is still pending at the Appeals Council level. In this situation, OCA will request the claim file from the OAO branch which will immediately send the claim file to the requesting OCA division. The OAO branch will continue to control the request for review as a pending case. After the court dismisses the civil action, OCA will return the claim file to the OAO branch to process the request for review.

A claimant may fail to exhaust his or her administrative remedies, i.e., file a civil action instead of a request for review following an ALJ's decision. In such cases, OCA will prepare a "failure to exhaust" affidavit and will retain the claim file. If the claimant filed the civil action within 65 days of the ALJ's decision, OCA will forward the claim file to the OAO branch for preparation of a form HA-520 and appropriate action following the court's dismissal. The Appeals Council will treat the civil action as a timely filed request for review. If the Appeals Council denies the request for review, the denial notice to the claimant/representative must contain the standard language regarding court rights. See > I-4-132 for a discussion of OCA procedures.



HALLEX I-3-157

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-157 CLAIMANT THREATENS VIOLENCE

For procedures for handling situations where the claimant or other individual threatens violence, refer to > I-2-137.



HALLEX I-3-160

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Appeals Council Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

November 10, 1994

Current through June 1997

I-3-160 SPANISH LANGUAGE COMMUNICATIONS

A. General

Notices which set forth appeal rights must be provided in Spanish to people who either request Spanish language notices or meet certain criteria.

When communication in Spanish must be provided with notices of final Appeals Council actions, i.e., there is the right to court review, the Council must send a Spanish language notice with the English notice. In addition to the notices required to be sent in Spanish, other standard pre-printed letters and notices used at the Council level are available in Spanish and must be sent under the criteria discussed below.

B. Criteria for Identifying Individuals Who Will Receive Spanish Language Notices

Spanish language notices, forms, etc., are provided throughout SSA. The district or branch office usually identifies individuals who meet the criteria for receiving notices in Spanish. When one of the following criteria are met, the DO/BO interviewer tells the person that SSA will send a Spanish language notice of appeal rights (in addition to the English notice) in the event the individual's application is denied, and other notices, forms, etc., will be provided in Spanish, unless the person waives the right to receive notice in Spanish.

1. The application shows that the individual was born in Puerto Rico or in any country where Spanish is the predominant language.

2. The individual has a Spanish surname.

3. The individual lives in a known Spanish-speaking area.

4. The interview is conducted in Spanish or with the assistance of an interpreter.

5. The individual has difficulty communicating in English during the interview.

If none of the above five criteria is met but other circumstances indicate Spanish language communications would be useful, the DO/BO interviewer will also ask whether the individual would like to receive notices in Spanish. Additionally, a claimant who specifically requests Spanish language notices, regardless of criteria, must receive them.

When an individual specifically declines to receive Spanish language notices, the DO/BO will obtain a signed form (SSA-381-SP) to document the decision.

The DO/BO will note the need for Spanish language notices on forms SSA-450, SSA-3687-U2, or SSA-101-U3. In some cases the SSA-831-U3 and other forms will reflect that Spanish notices are required. A record of this is established on the MBR for future use.

When a request for hearing or request for review is filed in the DO/BO, POMS instructions also provide that, when Spanish language notices are required under the criteria, a statement will be included on Form HA-501-U5 or HA-520-U5 advising whether the individual wants to receive Spanish notices.

When a case reaches the Appeals Council level, whether the person wishes to receive notices in Spanish will be clearly documented. If not, we will provide Spanish language notice of the Council's action (when there is the right to court review) and other available Spanish language forms and notices to an individual when:

1. One of the five criteria above is met and there is no documentation showing that the claimant does not wish to receive notices in Spanish;

NOTE: The criteria in items 4 and 5 above are met if the hearing had been conducted in Spanish or with an interpreter or the individual had difficulty with English at the hearing.

2. The claimant has requested Spanish language communications or has corresponded with SSA in Spanish; or

3. The claimant was provided Spanish language notices at the hearing level and has not indicated in writing that he or she does not wish to receive notices in Spanish.

C. Procedures When Spanish Language Notice Required

When there is a right to court review, i.e., Appeals Council denial of a request for review of Administrative Law Judge decisions or Appeals Council decisions, the Council must provide Spanish language notices to claimants who request Spanish communications or otherwise meet the criteria for receiving Spanish notices, unless specifically waived.

When a Spanish denial of R/R notice is required, the analyst must ascertain whether a pre-printed standard notice in Spanish or a Form HA-L1098-SP must be used. The instructions for completion of HA-L1098-SP differ somewhat from those which are provided when the Spanish language form or notice is an exact translation of the English form or notice.


The analyst must provide typing instructions to show when (and which) Spanish forms and notices are to be prepared. With the exception of Form HA-L1098-SP which is an informational notice and not a translation of the actual notice with which it is sent, the Spanish translation of a form or notice contains the same information as the English version and has the same form number as the English followed by "SP".

To determine if there is a Spanish translation of a form or notice used at the Appeals Council level, refer to the "Spanish Language Forms and Notices" chart at the end of this section. When the Spanish language form or notice is an exact translation of the English form or notice being sent, both an English version and a Spanish translation of the form or notice must be sent and the edition date of each must be the same unless otherwise indicated in the chart. (The edition date of the form is the date which appears in parenthesis next to the form number.)

The Spanish and English versions of a form or notice should be stapled together in the upper left hand corner with the Spanish version on top. The claimant's SSN and full name and address, and the salutation should be shown on both versions in English. The date on the Spanish version will be in Spanish.

The months in Spanish are as follows:

January -- enero ) July -- julio

February -- febrero ) August -- agosto

March -- marzo ) September -- septiembre

April -- abril ) October -- octubre

May -- mayo ) November -- noviembre

June -- juni ) December -- diciembre

Show the date in Spanish with the day, month, and year separated by "de". For example, June 5, 1988, in Spanish should read 5 de junio de 1988. When forwarding the case to the Appeals Council, the analyst must annotate the route slip to remind the Council staff to date the Spanish form in accordance with these procedures.

Include copies of both the Spanish and English versions in the claim and appeals files, and send copies of both to the claimant's representative, if any.

D. Translation of Spanish Documents

If an analyst receives a case with pertinent documents in Spanish that have not been translated into English (e.g., exhibits, letter between the ALJ and claimant/representative, claimant's birth certificate, etc.), the analyst must obtain translation of the documents before preparing a recommendation to the Appeals Council. The analyst should keep a photocopy of the document(s) and send the original(s) with a route slip to Program Review Branch (PRB) 1 for cases with the terminal digits 00-49 and to PRB 2 for cases with the terminal digits 50-99.

E. Spanish Language Forms and Notices

Form or Notice Numbers Title of Forms or

(Including usable edition dates) Notices

Spanish English

HA-L5-U4-SP (8/78) HA-L5-U4 (8/78) 20-Day Letter

HA-L6-U6-SP HA-L6-U6 Notice of Council (8/89,

3/87) (8/89, 3/87) Decision - Transmits

Denial Decision to

Claimant

HA-L-61-U6-SP HA-L61-U6 Notice of Council (9/89,

6/85) (9/89, 8/86) Decision - Transmits

Fully or Partially

Favorable Decision to

Claimant

HA-L7-U8-SP (4/84) HA-L7-U8 (4/84) Transmits Copy of Remand

Order to Claimant

HA-L28-U7-SP (4/85) HA-L28-U7 (4/85) Action of Appeals Council

on R/R - Titles II and/or

XVI - No Additional

Evidence

HA-L1098-U3-SP (4/85) None Spanish Informational

Notice



HALLEX I-3-170

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-170 SPECIAL NOTICES FOR BLIND CLAIMANTS OR RECIPIENTS

A. Definition--Blind Claimant or Recipient

A blind claimant or recipient is an individual who is applying for or receiving title II or XVI benefits on the basis of blindness. For the purpose of this provision, a blind claimant or recipient includes:

1. legally competent blind adults;

2. legally competent blind children who have attained age 18; and

3. minor blind children who receive direct payment of their title II or title XVI benefits.

B. Options

A blind claimant or recipient may elect to receive notices from the Social Security Administration (SSA) in English or Spanish in one of the following ways:

1. telephone call;

2. certified mail; or

3. regular mail service.

C. OAO Procedures--Initial Screening

When an OAO analyst receives a case in which the HO has indicated on the transmittal form 5051 that special procedures are necessary or when the analyst identifies it as a case involving a blind claimant, indicate on the Blind Claimant/Recipient, Notice Option flag the option the claimant has selected and attach the flag to the case.

D. OAO Procedures--Case Processing

Process these cases in the same manner as the HO staff (see > I-2-350), except as follows:

1. If the claimant elects the certified mail option, route all mail requiring certification to the appeals technician for certification and release of the correspondence.

2. If the claimant elects the telephone follow-up option, make the follow-up calls. Advise the appeals technician, via the route slip, to return the case to the branch promptly after release of any correspondence because the analyst must attempt the first call within five days of the date of the correspondence.



HALLEX I-3-180

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

June 30, 1994

Current through June 1997

I-3-180 OAO PROCEDURES FOR PROCESSING CASES WHEN AN ALJ ISSUES A DECISION AFTER COURT REMAND (REVISED 12/93)

A. General

If a court remands a case to the Secretary and the Appeals Council subsequently remands the case to an Administrative Law Judge (ALJ) for further proceedings and a new decision, the Appeals Council will generally vacate the final decision of the Secretary, which the court remanded. See HALLEX chapter > I-4-300 for Office of Civil Actions (OCA) procedures for processing court remands and HALLEX section > I-2-818 for ALJ procedures in court remand cases.

OAO has responsibility for processing cases when an ALJ issues a decision after court remand. These cases include the following:

1. The ALJ issues a final decision and the claimant files exceptions.

2. The ALJ decides to issue a recommended decision or the Appeals Council directed the ALJ to do so after September 13, 1989.

3. The ALJ issues a final, fully favorable, title II only, disability decision which the Division of Appealed Claims in the Office of Disability and International Operations (ODIO) forwards to OAO for sample review.

4. The ALJ issues a final decision following court remand, and an effectuating component files a "Bureau Protest."

5. The claimant asks to withdraw from the claim when it is before the Appeals Council, or the ALJ issued a recommended dismissal.

B. Files and Information Coming into OAO on Court Remand Cases

1. OCA Sends to OAO

a. In most cases, upon receipt of a remand order from a court, OCA prepares an Appeals Council remand order, sends the claim file and remand order to the hearing office, and sends the appeals file to OAO for distribution to the appropriate Program Review Branch (PRB).

b. OCA also sends to OAO a biweekly composite listing and diskette of remands released to the field within the preceding two-week period, and a listing and diskette of new time-limited court remand cases released to the field within the preceding two-week period.

2. Hearing Offices (HOs) Send to OAO

a. Unfavorable ALJ Decision

Following completion of the ALJ's action on a court remand case, the HO sends the claim file, when available, together with the cassette and the certified record on each unfavorable decision to:

Social Security Administration

Office of Hearings and Appeals

Office of Appellate Operations

5107 Leesburg Pike

Falls Church, VA 22041-3255

b. Partially or Fully Favorable ALJ Decision

When the ALJ issues a partially or fully favorable decision, the HO sends:

- the claim file and all material related to the proceedings on remand to the effectuating component, and

- the certified record together with a copy of the decision to OAO at the above address, and

- the cassette(s) to the following address:

Social Security Administration

Office of Hearings and Appeals

Cassette Computer Library

5107 Leesburg Pike

Falls Church, VA 22041-3255

If the claim file is not in the HO, the HO sends:

- the certified record and all material related to the proceedings on remand to the effectuating component, and

- a copy of the decision to the OAO Deputy Director for Operations at the above address, and

- the cassette(s) to the above noted address.

3. Regional Offices send OAO a biweekly listing of pending time-limited court remand cases.

4. The Division of Appealed Claims, ODIO, sends OAO a sample of fully favorable ALJ decisions for review under the Appeals Council's own motion authority.

C. Revisions to the Standardized Text

The notices to process these cases are in > I-3-190.

D. Processing Unfavorable and Partially Favorable ALJ Decisions After Court Remand

1. Docket and Files Branch Actions

a. Following receipt of a claim file and/or certified record (and cassette in unfavorable cases) containing an ALJ's unfavorable decision (from the HO) or partially favorable decision (from the effectuating component) after court remand, the Docket and Files Branch will update the SSADARS Case Control System (CCS) and forward the files to the OAO PRB which has jurisdiction under the same assignment system that applies in review level cases. The movements of certified records (court transcripts) are not coded into the case control system.

b. Immediately on receipt of correspondence on an ALJ decision after court remand, Docket and Files Branch will also forward any correspondence to the PRB having jurisdiction, even if the PRB has not yet received the claim file.


NOTE: Some court jurisdictions require that SSA provide a supplemental court transcript even if a fully favorable decision is made on remand. When the effectuation process is complete, effectuating components will forward those cases to the Docket and Files Branch with a remark in Item 4 of the Court Remand Case Flag (see > I-3-190, Exhibit 19). Docket and Files Branch will:

- Update the case control to show receipt of the claim file.

- Immediately forward for necessary action each claim file to the PRB which has jurisdiction under the same assignment system that applies in review level cases.

2. Branch Control Staff Actions Before the Appeals Council Acts on Case

OAO PRB control staff receives and controls all files and correspondence.

a. Upon receipt of a claim file or certified record on an ALJ decision after court remand, branch control staff will update SSADARS CCS, associate the claim file with the appeals file stored in the branch and any correspondence, and determine whether the claimant has filed exceptions.

- If the claimant has not filed written exceptions and there is no correspondence, store the claim file and appeals file in the branch mini-docket in the separate court case storage area for 60 days to await any exceptions.

- If claimant has filed exceptions, the control staff will determine whether a hearing was held. If so, control staff will request the cassette tape from the cassette library or remove the tape from the file, and request that the supplemental hearing transcript be prepared. (See I-3-180 D. 2. c.). After receiving the hearing transcript, the control staff person places the case with the pending assignment cases.

b. If correspondence is received in the PRB before a claim file becomes available (usually when the ALJ issues a partially favorable decision and the claims file is not yet released by the effectuating component,) control personnel will review the correspondence and:

- If exceptions are not included, refer the correspondence to an analyst to determine necessary action; e.g., respond to a request for an extension of time to file exceptions, a status reply, a request for the claim file, etc.

- If the correspondence does include exceptions, branch control staff will establish a control for the exceptions while they await the claim file. If the claim file is not received within 30 days, control staff will request that Docket and Files Branch obtain the file. Docket and Files Branch will follow-up every 20 days until the claim file is received. Upon receipt of the claim file, branch control personnel will proceed, as in I-3-180 D. 2. a., above, to have the hearing transcript prepared and place the case with the pending assignment cases.

c. Obtaining Hearing Transcripts

(1) Immediately after associating exceptions with the claim file, branch control personnel will:

- Pull the cassette tape and its envelope.

- Complete the transcription request.

- Deliver the tape and the request for a transcript to the OAO Assistant Deputy Director's office for delivery to:

OCA Contract Staff

One Skyline Tower, Room 608

- Diary the case for 20 days.

- Follow-up with the Contract Staff after 20 days if the transcript has not been received.

- Pick up returned transcripts daily from the OAO Assistant Deputy Director's office.

(2) After receiving the tape and transcript:

- Replace the tape on the left side of the claim file.

- Prong-file the transcript on the right side of the claim file.

- Place the claim file, the appeals file and the transcript with the pending assignment cases.

d. No Exceptions Received

After holding the files for 60 days from the date of the ALJ's unfavorable or partially favorable decision awaiting exceptions, if no exceptions are received, branch control personnel will forward the files to the OAO Court Records Technician for preparation of the supplemental certified record (court transcript).

NOTE: The United States District Court for the District of New Hampshire requires that in court remand cases, the Secretary file supplemental certified records with the court within 30 days of all final fully or partially favorable decisions. Therefore, at the expiration of the 60-day period, the control staff must immediately forward cases on remand from New Hampshire to the Court Records Technician, for preparation of a supplemental certified record.

3. Analyst Actions

a. Claimant Requests Additional Time to Submit Exceptions

NOTE: OAO must dispose of all requests for additional time to submit exceptions no later than 5 working days after receipt.

(1) If the claimant requests no more than 30 additional days to file written exceptions and submits the request within 30 days of the date of receipt of the ALJ decision, the analyst will grant the request using the letter at > I-3-190, Exhibit 3. (The date of receipt is presumed to be five days after the date of the notice of the decision, unless the claimant can show that he or she did not receive it within the five-day period.) Diary the case for 10 days beyond the length of the extension granted.

(2) If the claimant timely requests more than 30 additional days to file written exceptions contact the AAJ to discuss the request.

- If the AAJ decides to grant an extension of more than 30 days use the letter at > I-3-190, Exhibit 4. Diary the case for 10 days beyond the length of extension the AAJ granted.

- If the AAJ decides not to grant an extension of more than 30 days, prepare the letter at > I-3-190, Exhibit 5 for the AAJ's signature explaining why the Council is denying the request for the additional time beyond 30 days. After the letter is released, diary the case for 40 days.

(3) If the claimant's request for additional time to submit exceptions does not appear to have been filed timely; i.e., within 30 days of the date of receipt of the ALJ decision, we will provide the claimant with the opportunity to establish that he or she actually filed the request within the 30 day period.
If the claimant is not able to establish that he or she filed the request timely, the Appeals Council will not assume jurisdiction based on section 404.984(b) or 416.1484(b) of the regulations.

- If the request for additional time to submit exceptions does not appear to have been filed timely, the analyst will prepare for the AAJ's signature a letter advising the claimant that he or she must establish that the request was filed within 30 days of the date of receipt of the ALJ's decision using the letter at > I-3-190, Exhibit 6. That letter also directs the claimant to file any exceptions along with the explanation. Diary the case for 30 days from the date of the letter.

- If the claimant responds to the letter, prepare an analysis for the Appeals Council as to whether the circumstances establish that the claimant filed the request timely; i.e., within 30 days of the date of receipt of the ALJ's decision. If the circumstances establish that the request was timely filed, proceed in accordance with I-3-180 D. 3. b., c., and d., below. If the circumstances do not establish that the claimant timely filed the request, prepare the letter in > I-3-190, Exhibit 7 for the AAJ's signature. When the letter is signed by the AAJ and released, the claim file will be returned to the analyst for forwarding to the Court Records Technician for preparation of a supplemental certified record.

See the Note to section I-3-180 D. 2. d. for the exception applicable to cases on remand from the USDC for the District of New Hampshire. For cases on remand from New Hampshire, immediately upon release of a partially or fully favorable decision, obtain the supplemental hearing transcript and route to the Court Records Technician for preparation of the supplemental certified record.

- If the claimant does not respond to the letter, forward the claim files to the Court Records Technician for preparation of a supplemental certified record.


b. Claimant Files Exceptions

(1) The analyst reviews the entire case, the court order, the exceptions, and the transcript to determine whether to recommend that the AC assume jurisdiction of the case. The AC will ordinarily not assume jurisdiction if it concludes that the ALJ's decision fully complies with the court's and the AC's remand orders, and that the decision does not require modification; i.e., it is supported by substantial evidence, does not contain an error of law and the ALJ did not abuse his discretion.

c. Recommendation That the Appeals Council Assume Jurisdiction and Issue a Decision or Remand the Case to an ALJ (See > I-3-190, Exhibit 2 for a Summary of Appeals Council Notice Requirements)

(1) Appeals Council considering only issue(s) the ALJ considered.

- If recommending that the Appeals Council issue a decision, the analyst will:

--Prepare a case analysis explaining why the Council should assume jurisdiction (See > I-3-190, Exhibit 8); and

--Unless the Appeals Council is issuing a fully favorable decision, prepare a notice (See > I-3-190, Exhibit 10) to advise the claimant of the action the Appeals Council proposes to take;

--Route in accordance with > I-3-190, Exhibit 20;

--After the Appeals Council releases the notice and returns the claim file to the analyst, diary the case for 40 days to await the receipt of a brief or other written argument;

--Act on the case at the completion of the diary or when the material is received, whichever is earlier:

--Prepare a supplemental analysis, if needed;

--Prepare a decision or a remand order as the facts warrant responding to pertinent arguments in the decision or remand order;

--Routing instructions for decisions are different for fully favorable, partially favorable and unfavorable Appeals Council decisions. Analysts must follow the routing instructions in > I-3-190, Exhibit 20 carefully so that all required actions on these cases can be completed on a timely basis;

--The Appeals Council will return to the PRB cases in which a partially favorable decisions is released. The analyst will diary the case for 20 days for the claimant to state whether he or she wishes to continue the litigation. Depending on what the claimant decides, the analyst will then follow the further routing instructions in > I-3-190, Exhibit 20;

See the Note to section I-3-180 D. 2. d. for the exception applicable to cases on remand from the United States District Court for the District of New Hampshire. For cases on remand from New Hampshire, immediately upon release of a partially or fully favorable Appeals Council decision, obtain the supplemental hearing transcript and route to the Court Records Technician for preparation of the supplemental certified record.

- If recommending that the Appeals Council remand the case to an ALJ, the analyst will:

--Prepare a case analysis explaining why the Council should assume jurisdiction and fully explain why the Council should remand the case (See > I-3-190, Exhibit 8); and

--Prepare a remand order (See sample at > I-3-190, Exhibit 12) and the notice transmitting the remand (> I-3-190, Exhibit 13). Choose the appropriate fill-in for Exhibit 12 depending on whether the Appeals Council is assuming jurisdiction and remanding in one action or will remand after giving prior notice. A separate notice providing the claimant an opportunity to comment on the Appeals Council's proposed action prior to remand is required if the Appeals Council is considering an issue not addressed in the claimant's exceptions (See > I-3-190, Exhibit 11);

--Prepare a Court Remand Case Flag (See > I-3-190, Exhibit 19). Complete items 1 through 4;

--Using the Court Case Route Slip at > I-3-190, Exhibit 21, route the remand order, the notice transmitting the order and the case analysis in accordance with > I-3-190, Exhibit 20.

(2) Appeals Council considering an issue(s) which the ALJ did not consider.

- If recommending that the Appeals Council issue a fully favorable decision on that issue, the analyst will prepare the decision and a case analysis fully explaining why the Council should assume jurisdiction and issue a fully favorable decision on that issue (See > I-3-190, Exhibit 8), and process the case in the same manner as in I-3-180 D. 3. c. (1). bullet 1, above. A notice to the claimant providing an opportunity to comment prior to issuance of the decision is not required.

- If recommending that the Appeals Council remand the case, proceed as indicated in I-3-180 D. 3. c. (1), bullet 2, above.

NOTE: The Appeals Council must remand the case to an ALJ unless the Council is prepared to issue a fully favorable decision on the issue(s) which the ALJ did not consider.

(3) Appeals Council considering an issue(s) not raised in claimant's exceptions.

- The Appeals Council may consider issues the claimant did not raise in the exceptions. However, the Appeals Council must send a notice to the claimant providing an opportunity to comment on its proposed action; i.e., decision or remand. Use > I-3-190, Exhibits 10 or 11, as appropriate, unless the Appeals Council is prepared to issue a fully favorable decision.


d. Recommendation That the Appeals Council Not Assume Jurisdiction

(1) If recommending that the Appeals Council not assume jurisdiction, the analyst will:

- Prepare a case analysis explaining why the Council should not assume jurisdiction (See > I-3-190, Exhibit 8). The analyst must address all exceptions and explain why the exceptions do not warrant further action by the Appeals Council.

- Prepare a notice to advise the claimant that the Appeals Council has considered the exceptions and has decided not to assume jurisdiction. Use the notice shell at > I-3-190, Exhibit 9. The notice must include a comprehensive analysis of the exceptions and an explanation as to why the exceptions do not warrant a change in the ALJ's decision. Cite pertinent rationale provided by the ALJ as it relates to the exceptions. Do not attempt to alter the ALJ's findings or conclusions in the notice.

- The analyst will route the case using the Court Case Route Slip (See > I-3-190, Exhibit 21).

(2) Branch chiefs will review actions on all ALJ decisions after court remand.

e. Claimant Submits Untimely Exceptions

If the claimant does not appear to have filed his or her exceptions timely; i.e., within 30 days of the date receipt of the ALJ's decision, we will provide the claimant with the opportunity to establish that he or she actually filed the exceptions within the 30 day period. (The date of receipt is presumed to be five days after the date of the notice of the decision, unless the claimant can show that he or she did not receive it within the five-day period.) If the claimant is not able to establish that he or she filed the exceptions timely, the Appeals Council will not assume jurisdiction based on sections 404.984(b) or 416.1484(b) of the regulations.

(1) If the exceptions do not appear to have been filed timely, advise the claimant the he or she must establish that the exceptions were filed within 30 days of the date of receipt of the ALJ's decision. The analyst will use the letter at > I-3-190, Exhibit 6 and diary the case for 30 days from the date of the letter.

(2) If the claimant responds to the letter, prepare an analysis for the Appeals Council as to whether the circumstances establish that the claimant filed the exceptions timely.

- If the circumstances establish that the exceptions were timely filed, proceed in accordance with I-3-180 D. 3. b., c., and d., above.

- If the circumstances do not establish that the claimant timely filed the exceptions, the analyst will prepare the letter in > I-3-190, Exhibit 7 for the AAJ's signature. When the letter is released, forward the claim files to the Court Records Technician for preparation of a supplemental certified record.

See the Note to section I-3-180 D. 2. d. for the exception applicable to cases on remand from the USDC for New Hampshire.

For cases on remand from New Hampshire, immediately upon release the letter in > I-3-190, Exhibit 7, obtain the supplemental hearing transcript and route to the Court Records Technician for preparation of the supplemental certified record to permit filing with the court within 30 days of a final partially or fully favorable ALJ decision.

4. Appeals Council Staff Actions

a. General

The Appeals Council staff is responsible for:

- Referring cases to the AAJs promptly on receipt;

- Distributing action documents appropriately;

- Updating case control systems to reflect Appeals Council action; and

- Routing/returning files to the proper component.

b. Appeals Council Staff Responsibilities for Appeals Council Decision After Court Remand Cases

- Give a court case to the AAJ immediately upon receipt.

- When the Appeals Council does not concur with the analyst's recommendation, return the claim file to the analyst for further action.

c. When the Appeals Council declines to assume jurisdiction of a case, after the AAJ signs the denial notice:

- File the original notice in the claim file.

- Forward the claim file and the OGC copies of the notice to the appropriate PRB Court Record Technician.

- Release copies of the notice to:

Claimant

Representative

ALJ and RCALJ

- Return the appeals file to the branch.

d. On fully favorable Appeals Council decisions, after the AAJs sign the decision:

- File the original of the notice in the claim file and release the decision to the claimant and the representative.

- Release the claim file(s) to the effectuating components when the case is not on remand from a jurisdiction which requires a supplemental certified record (Maine, New Hampshire, Wisconsin, Idaho, the E.D. of Washington, West Virginia, and the E.D. of North Carolina.) These cases must be forwarded to the Court Records Technician. Remove the court remand flag.

- Route the appeals file to the Attorney Fee Branch.

- Send OGC a copy of the decision by interoffice mail to:

OGC, Room 639, Altmeyer Building, Baltimore, MD.

(Forward these decisions in batches.)

e. On partially favorable decisions, after the AAJs sign the decision:

- File the original of the decision and the notice of decision in the claim file and release copies to:

Claimant

Representative

Social Security Office

ALJ

Regional Chief ALJ

- File the third copy of the decision in the appeals file.

- Attach the OGC and the analyst copies of the decision to the claim file.

- Return the claim and appeals files to the branch. The branch will diary the case for 20 days, awaiting response from the claimant on the desire to continue litigation.

f. On unfavorable decisions, after the AAJs sign the decision:

- File the original decision and the notice of decision in the claim file and release copies to:

Claimant

Representative

Regional Chief ALJ

ALJ

- File the third copy of the decision in the appeals file.

- Give the AAJ his or her copy of the decision.

- Forward the claim file and the copies for OGC of the decision to the Court Record Technician for preparation of the supplemental certified record.

- Return the appeals file
and the analyst copy of the decision to the branch.

g. On remand cases, after the AAJs sign the order:

- Attach the original remand order to the claim file. Check to see that the analyst attached the Court Remand Case Flag to the folder. If not, request a completed flag from the analyst.

- Release the claim file with the order to the Hearing Office.

- Release copies of the remand order and the notice transmitting the order to:

Claimant

Representative

Regional Chief ALJ

- File a copy of the order in the appeals file and return the appeals file to the PRB.

h. Update the case control system to reflect the Appeals Council's action.


5. Court Records Technician Actions

Court Records Technicians prepare original and supplemental certified records (court transcripts) in accordance with procedures set forth in HALLEX chapters > I-4-100 and > I-4-300. The technician:

a. Assembles the transcript.

b. Has the transcript reproduced.

c. Distributes copies of the transcript.

d. Routes claim files and appeals files as required by the Appeals Council's action.

6. Branch Control Staff Actions After the Appeals Council's Action

a. The Appeals Council will return appeals files on court remand decisions to the Program Review Branches after the Appeals Council issues an unfavorable decision, a remand order, or notice advising the claimant that it is not assuming jurisdiction. The Attorney Fee Branch receives the appeals file on favorable Appeals Council decision cases to process the attorney fee petition. If the claimant's representative does not file a petition, the Attorney Fee Branch returns the appeals file to the appropriate PRB.

b. The Program Review Branch will hold the appeals file for 12 months and then destroy the file, unless the Appeals Council remanded the case to an ALJ. For the remanded cases, the Program Review Branch will hold the appeals file until the branch receives a new decision or SSADARS shows the ALJ issued a favorable decision.

E. Processing Recommended Decisions

NOTE: Under the regulations an ALJ can elect to issue a recommended decision. The Appeals Council can also direct the ALJ to issue a recommended decision.

1. The HO forwards a recommended decision and the claim file to the Docket and Files Branch.

2. The Docket and Files Branch immediately forwards the claim file to the OAO branch which has jurisdiction under the same assignment system that applies in review level cases.

3. Branch Control Staff Actions

a. Request a supplemental hearing transcript (See I-3-180 D. 2. c. for detailed instructions).

b. Assign fully favorable recommended decisions immediately. If the claimant submits correspondence other than briefs or statements, assign the case to an analyst.

c. Diary the unfavorable and partially favorable cases for 40 days after the date of the ALJ's recommended decision to await a brief or other material from the claimant or representative.

d. Assign the unfavorable and partially favorable cases to an analyst at the end of the 40-day period or, if earlier, on receipt of a brief or other correspondence.

4. Analyst Actions

a. If the claimant requests additional time in which to submit a brief or statements about the recommended decision, follow general correspondence procedures for non-court cases in which extensions of time are requested.

b. Review the evidence of record, the recommended decision, and any additional material the claimant submits to the Appeals Council.

c. Prepare a supplemental analysis of the case describing the pertinent events on remand and any arguments, etc., received concerning the recommended decision.

d. Prepare an Appeals Council decision to adopt, modify or not adopt the ALJ's recommended decision or prepare a remand order, as appropriate.

e. Route the case in accordance with guidelines in > I-3-190, Exhibit 20.

F. Processing Sample Review Cases

The Division of Appealed Claims, ODIO, will send OAO a random sample of fully favorable title II decision cases. ODIO will send the cases to the Docket and Files Branch.

1. Docket and Files Branch Actions

Docket and Files Branch will handle sample review court remand cases in the same manner as it handles other sample review cases. (See I-3-180 D. 1.)

2. Branch Control Staff Actions

Branch control staff will control receipts, update SSADARS CCS, associate any available appeals files, immediately assign these cases to an analyst, record the analyst name and date assigned on any case control card, and promptly release files, as instructed.

3. Analyst Actions

Review the case for technical accuracy and legal sufficiency. Follow the procedures in a. or b. below.

a. No Defects in Decision

(1) Sign and date the HA-5051 (transmittal sheet).

(2) Route the case through the branch control staff to the SSA component to promptly effectuate the decision. Note special handling procedures for cases in the following jurisdictions:

Idaho

Maine

North Carolina (Eastern District)

New Hampshire

Washington (Eastern District)

West Virginia

Wisconsin

If one of the above jurisdictions remanded the case, handle as follows:

- Route the case to the branch control. Instruct the branch control staff to request a hearing transcript. (See I-3-180 D. 2. c.).

- After receiving the hearing transcript, route the file to a Court Record Technician. Instruct the Court Record Technician to prepare a supplemental certified record. For cases on remand from New Hampshire, route the request to the Court Records Technician to prepare the supplemental certified record in sufficient time to permit filing with the court within 30 days of a final favorable decision.


b. Defects Noted in Decision

Determine whether the case is still within 60 days of the ALJ's decision.

(1) If it is not, the analyst should dispose of the case in accordance with the procedures in I-3-180 F. 3. a., above, because the Appeal Council cannot assume jurisdiction.

(2) If the case is within 60 days of the ALJ's decision:

- Audit hearing tape and request branch control staff to obtain a hearing transcript.

- Prepare a case analysis/recommendation form (See > I-3-190, Exhibit 8).

- Prepare the notice to advise the claimant that the Appeals Council is assuming jurisdiction on its own motion (See > I-3-190, Exhibit 18). The regulations require notice of proposed action when the Appeals Council assumes jurisdiction on its own motion either to issue a decision or to remand. This gives the claimant an opportunity to file briefs or other written statements about the facts and law relevant to the case.

Exception: In First Circuit cases, the notice must be mailed by the 57th day unless the AAJ decides to release the notice between the 57th and the 60th day.

- Prepare the Court Case Route Slip (See > I-3-190, Exhibit 21) and attach it to the claim file.

- Route the case, the case analysis and the notice as indicated in > I-3-190, Exhibit 20 for cases in which prior notice of Appeals Council action is required. If the Appeals Council declines to assume jurisdiction, the case is routed following the procedures in I-3-180 F. 3. a.

- Diary the case for 40 days.

- At the end of the 40 days or, if earlier, after receiving arguments/comments, prepare the Appeals Council action document; i.e., a remand order or a decision.

- Follow the instructions in > I-3-190, Exhibit 20 to route the document and any necessary supplemental analysis.

G. Processing (Non-Sample Review) Favorable Decision Cases in Which the U.S. District Courts Require a Supplemental Certified Record

By annotating the transmittal form, the HOs will alert the effectuating components that after effectuation, they should send all favorable decision cases on remand from U.S. District Courts in Maine, New Hampshire, Wisconsin, Idaho, the E.D. of Washington, West Virginia, and the E.D. of North Carolina, to OHA Headquarters for preparation of a supplemental certified record.

1. Docket and Files Branch Actions

Effectuating components will forward these cases to the Docket and Files Branch with a remark in Item 4 of the Court Remand Case Flag. Docket and Files Branch will, update the case control system and send the files to the appropriate Program Review Branch. (See I-3-180 D. 1.)

2. Program Review Branch Control Staff Actions

Branch control staff will receive and control these files, associate any available appeals files, obtain the supplemental hearing transcript, route to the Court Records Technician for preparation of the supplemental certified record and refile the appeals file. See the note to section I-3-180 D. 2. d. for the exception applicable to cases on remand from the United States District Court for the District of New Hampshire. For cases on remand from New Hampshire, immediately upon release of a partially or fully favorable decision, obtain the supplemental hearing transcript and route to the Court Records Technician for preparation of the supplemental certified record to permit filing with the court within 30 days of the final favorable ALJ decision.

H. Processing Bureau Protest Cases

Refer to the existing procedures on processing these cases. (See > I-3-140.)

I. Sending OGC Its Copy of the ALJ's Decision

1. HOs will forward copies of all fully favorable decisions to the Deputy Director for Operations, OAO. Sixty (60) days after the ALJ issues the decision, the Deputy Director's staff will:

a. Determine whether:

- The claimant filed written exceptions;

- The claimant requested an extension of time to file exceptions;

- The Appeals Council received a protest from the effectuating component; or

- The Appeals Council assumed jurisdiction of the case on its own motion.

b. If none of the above situations apply, promptly forward a copy of the fully favorable decision to the Office of the General Counsel (OGC) at the following address:

Office of the General Counsel

Room 639, Altmeyer Building

Baltimore, MD.

J. Preparation of Supplemental Certified Record

1. The Court Records Technician follows the instructions in HALLEX > I-4-100 and > I-4-300 to prepare a certified record on:

a. All unfavorable and partially favorable ALJ decisions on which the claimant filed written exceptions and the Appeals Council did not assume jurisdiction.

b. All unfavorable and partially favorable ALJ decisions on which the claimant does not file written exceptions.

c. All partially and fully favorable ALJ or Appeals Council decisions on remand from the U.S. District Courts for Maine, New Hampshire, Wisconsin, Idaho, the E.D. of Washington, West Virginia, and the E.D. of North Carolina.

d. All Appeals Council unfavorable decisions.

e. All partially favorable Appeals Council decisions on which the claimant wishes to continue litigation.

2. Court Records Technician forwards the supplemental certified record to the Reprographics Staff.

3. Reprographics distributes one copy of the transcript to the Court Records Technician and the other copies to the OGC Answer Unit.


K. Processing Cases in Which Claimant Asks to Withdraw When Claim Is Before the Appeals Council or the ALJ Issued a Recommended Dismissal

When a court remands a case, 205(g) and 1631(c) of the Act require the Secretary to modify or affirm the prior findings of fact or decision. The statute precludes dismissal in a court remand case.

1. Claimant Asks to Withdraw From Claim Before the Appeals Council

In this event, the Appeals Council must issue a decision which documents the facts of the withdrawal and the effects the claimant's action has on the proceedings. The decision in such cases must contain the following:

- a statement of the procedural history on remand from the court;

- a discussion of the facts surrounding the conclusion that the claimant has withdrawn the claim;

- a discussion of the supporting documents entered in the record;

- an explanation that the claimant's action renders the controversy moot, thereby making additional administrative proceedings unnecessary;

- a statement adopting the prior final decision of the Secretary, as modified.

2. ALJ Issues a Recommended Dismissal

As indicated in HALLEX, section > I-2-818 A., if the claimant fails to appear for the hearing and does not establish good cause for such failure, or asks to withdraw from the claim, the ALJ must issue a decision which documents the facts of the abandonment or withdrawal and the effect the claimant's action has on the proceedings. If an ALJ improperly issues a recommended dismissal in such cases, the Appeals Council must issue a decision, as shown in K. 1, and specifically state that the Appeals Council does not adopt the ALJ's recommended dismissal.



HALLEX I-3-190

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Appeals Council Review

Subject: Workup of Case by Analyst

Chapter: I-3-100

November 10, 1994

Current through June 1997

I-3-190 EXHIBITS (REVISED 10/94)

Exhibit 1 Cassette Audit Requirements Chart

Exhibit 2 Summary of Notice Requirements - Appeals Council Assumes Jurisdiction

Exhibit 3 Letter Granting Request for Additional Time to Submit Exceptions AC Text CRC 10

Exhibit 4 Letter Granting Request for Extension of Time to Submit Exceptions Beyond 30 Days AC Text CRC 11

Exhibit 5 Letter Denying Request for Extension of Time to Submit Exceptions Beyond 30 Days AC Text CRC 12

Exhibit 6 Letter Providing the Opportunity to Establish that Claimant Timely Filed Exceptions or Timely Requested Additional Time to Submit Exceptions AC Text CRC 13

Exhibit 7 Notice Claimant Fails to Establish Timely Filing of Exceptions or Timely Request for Extension of Time Within Which to File Exceptions AC Text CRC 20

Exhibit 8 Decision After Court Remand Case Analysis/Appeals Council Recommendation Form

Exhibit 9 Appeals Council Notice - Appeals Council Declines to Assume Jurisdiction After Receipt of Exceptions AC Text CRC 21

Exhibit 10 Appeals Council Notice - Appeals Council Assumes Jurisdiction After Receipt of Exceptions and Proposes to Issue Decision not Fully Favorable AC Text CRC 22

Exhibit 11 Appeals Council Notice - Appeals Council Assumes Jurisdiction After Receipt of Exceptions and Proposes to Consider Issue(s) not Raised in Claimant's Exception and Remand AC Text CRC 23

Exhibit 12 Sample Text - Claimant Files Exceptions, Appeals Council Assumes Jurisdiction and Remands to ALJ AC Text CRC 30

Exhibit 13 Notice Transmitting Appeals Council Remand in Court Remand Case AC Text CRC 31

Exhibit 14 Appeals Council Decision Notice of Unfavorable Decision Following Court Remand AC Text CRC 40

Exhibit 15 Appeals Council Notice of Fully Favorable Decision Following Court Remand AC Text CRC 41

Exhibit 16 Appeals Council Notice of Partially Favorable Decision Following Court Remand AC Text CRC 42

Exhibit 17 Sample Decision - Claimant Filed Exceptions, Appeals Council Sent Prior Notice AC Text CRC 43

Exhibit 18 Notice - Appeals Council Assumes Jurisdiction on Its Own Motion AC Text CRC 50

Exhibit 19 Court Remand Case Flag

Exhibit 20 Routing Instructions for Court Remand Cases

Exhibit 21 Court Case Route Slip

Exhibit 22 Critical Case Flag

Exhibit 23 TERI Flag

Exhibit 24 Branch Screening Chart - Disposition of Subsequent Application Submitted for Escalation and/or Consolidation with Request for Review

EXHIBIT 1

CASSETTE AUDIT REQUIREMENTS

TYPE OF ACTION AUDIT REQUIRED NOTES REQUIRED

Unappealed Review Cases

Own Motion Full audit Expert testimony

(FNa1)

Recommendation for

Reversal or Remand

Effectuation Analyst's discretion None

Request for Review Cases

Unfair hearing Full audit Complete notes

allegation

Grant review to issue Full audit Expert testimony

(FNa1)

a less than fully

favorable decision

Grant review to issue Not required if

Analyst's

a fully favorable recommendation is discretion

decision fully supported by

the documentary record

Remand Spot audit of complete Expert testimony

(FNa1)

tape plus full audit

of expert testimony

Deny Request for Expert testimony Medical testimony

(FNa1)

Review (no unfair (other than VE -

hearing allegation) ME, TP, etc.)

VE testimony except VE testimony


when unnecessary except when

(e.g., VE testified unnecessary (FNa1)

in DWB case, denial (If VE testimony

based on SGA, etc.) was unnecessary,

explain in

recommendation why

tape was not

audited.)

FNa1. If the ALJ has accurately summarized the testimony in his/her decision,
the audit notes should simply state this fact and refer the Council to the

relevant pages of the decision.

EXHIBIT 2

Summary of Notice Requirements Appeals Council Assumes Jurisdiction

Based on Exceptions Own Motion

1. Appeals Council to consider only Notice always

issues raised by claimant. required before

Appeals Council can

a. Appeals Council proposes remand or issue a

to issue a decision - prior decision unless

notice required unless it will issue a

decision fully favorable. fully favorable

decision.

b. Appeals Council proposes to

remand - prior notice not

required.

2. Appeals Council to consider issue(s)

not raised by claimant - prior notice

required unless Appeals Council to

rule fully favorably on that issue

in a decision. (Appeals Council can

not remand without prior notice.)

3. Appeals Council to consider issue(s)

not addressed in the ALJ's decision

and not raised by claimant - Appeals

Council must give notice of proposed

action unless it is issuing a fully

favorable decision.

EXHIBIT 3 - AC Text CRC 10

Letter Granting Request for Additional Time to Submit Exceptions

NOTE: The analyst may grant a timely request for an extension of 30 days or less. The analyst must discuss a request for an extension of more than 30 days or a subsequent request for another extension with the Administrative Appeals Judge.

1. Refer to: (a)______________

(b)_________________________

2. (a)_________________________

(b)_________________________

(c)_________________________

3. Dear (a)___________________:

Re: (b)(Claimant's name) vs. Secretary of HHS

U.S.D.C. for (c)(district)

Civil Action Number: (d)_________________

4. The Appeals Council has granted your request for an extension of time in which to file written exceptions explaining your reasons for disagreeing with the Administrative Law Judge's decision. You have (a)_______ days from the date of this letter to file exceptions. If we do not receive the written exceptions within the next (b)_______ days, we will assume that you no longer wish to file exceptions.

5. The Appeals Council will not grant another extension of time in the absence of extraordinary circumstances.

Sincerely yours,

Hearings and Appeals Analyst

6. cc: (Claimant's name and address)

EXHIBIT 4 - AC Text CRC 11

Letter Granting Request for Extension of Time to Submit

Exceptions Beyond 30 Days

1. Refer to: (a)______________

(b)_________________________

2. (a)_________________________

(b)_________________________

(c)_________________________

3. Dear (a)___________________:

Re: (b)(Claimant's name) vs. Secretary of HHS

U.S.D.C. for (c)(district)

Civil Action Number: (d)_________________

4. The Appeals Council has granted your request for an extension of time of (a)__________ days in which to file written exceptions explaining your reasons for disagreeing with the Administrative Law Judge's decision. Therefore, you have (b)__________ days from the date of this letter to file exceptions. If we do not receive your written exceptions within the next (c)_______ days, we will assume that you no longer wish to file exceptions.

5. The Appeals Council will not grant another extension of time in the absence of extraordinary circumstances.

Sincerely yours,

Hearings and Appeals Analyst

6. cc: (Claimant's name and address)


EXHIBIT 5 - AC Text CRC 12

Letter Denying Request for Extension of Time to Submit

Exceptions Beyond 30 Days

1. Refer to: (a)______________

(b)_________________________

2. (a)_________________________

(b)_________________________

(c)_________________________

3. Dear (a)___________________:

Re: (b)(Claimant's name) vs. Secretary of HHS

U.S.D.C. for (c)(district)

Civil Action Number: (d)_________________

4. We have received your request for additional time to submit written exceptions to the decision of the Administrative Law Judge. You requested an extension of (a)_____ days to submit these exceptions. The Appeals Council has carefully considered your reasons for requesting the additional time.

5. (Explanation as to why the Appeals Council is denying request for additional time beyond 30 days.)

6. Therefore, you have 30 days from the date of this letter to file exceptions. If we do not receive the written exceptions within the next 30 days, we will assume that you no longer wish to file exceptions.

Sincerely yours,

Administrative Appeals Judge, Appeals Council

7. cc: (Claimant's name and address)

EXHIBIT 6 - AC Text CRC 13

Letter Providing the Opportunity to Establish that Claimant Timely Filed Exceptions or Timely Requested Additional Time to Submit Exceptions

1. Refer to: (a)______________

(b)_________________________

2. (a)_________________________

(b)_________________________

(c)_________________________

3. Dear (a)___________________:

Re: (b)(Claimant's name)% vs. Secretary of HHS

U.S.D.C. for (c)(district)

Civil Action Number: (d)_________________

4. We have received (a) [your exceptions] OR (b)[your request for additional time to submit written exceptions] to the decision of the Administrative Law Judge. Pursuant to 20 CFR [Insert as appropriate, (c)[404.984(b)] OR (d)[416.1484(b)] OR (e)[404.984(b) and 416.1484(b)], you must file any exceptions or request an extension of time to do so, within 30 days of the date you receive the Administrative Law Judge's decision.

5. Before the Appeals Council can consider any exceptions in this case, you must establish that you filed (a)[the exceptions] OR (b)[the request for additional time] within 30 days of the date of receipt of the Administrative Law Judge's decision. You must submit (c)[proof of filing] OR (d)[proof of filing and any written exceptions to the Administrative Law Judge's decision] within 20 days of the date of this letter.

6. You must send (a) [the proof of filing] OR (b)[the proof of filing and the exceptions] to us at 5107 Leesburg Pike, Falls Church, VA 22041-3255. Please include the claimant's Social Security number on your correspondence.

7. If we do not receive (a) [the proof of filing] OR (b)[the proof of filing and the exceptions] from you within 20 days, we will prepare a certified copy of the administrative record and forward it to the United States Attorney for filing with the court.

Sincerely yours,

Administrative Appeals Judge, Appeals Council

8. cc: (Claimant's name and address)

EXHIBIT 7 - AC Text CRC 205h

Notice Claimant Fails to Establish Timely Filing of Exceptions or Timely Request for Extension of Time Within Which to File Exceptions

1. Refer to: (a)______________

(b)_________________________

2. (a)_________________________

(b)_________________________

(c)_________________________

3. Dear (a)___________________:

Re: (b)(Claimant's name) vs. Secretary of HHS

U.S.D.C. for (c)(district)

Civil Action Number: (d)_________________

4. We have considered your explanation as to why we should consider your (a)[exceptions] OR (b)[request for an extension of time in which to submit exceptions] to the decision of the Administrative Law Judge to have been timely filed. We have concluded that you did not (c)[file the exceptions] OR (d)[request the extension] timely in accordance with 20 CFR (e)[404.984(b)(1)] OR (f)[416.1484(b)(1)] OR (g)[404.984(b)(1) and 416.1484(b)(1)].

What This Action Means

5. - Under Social Security Administration regulations 20 CFR (a)[404.984(d)] OR (b)[416.1484(d)] OR (c)[404.984(d) and 416.1484(d)], the Administrative Law Judge's decision is the final decision of the Secretary after remand by the court.

6. - We will prepare a certified copy of the administrative record and forward it to the United States Attorney for filing with the court. If you have questions about the court case, you may wish to contact the District Court.


Sincerely yours,

Administrative Appeals Judge, Appeals Council

7. cc: (Claimant's name and address)

EXHIBIT 8

Decision After Court Remand

Case Analysis/Appeals Council Recommendation Form

NOTE--Some parts of this form are wider than one screen. To view

material that exceeds the width of this screen, use the right arrow

key. To return to the original screen, use the left arrow key.

INITIAL/DATE

CLAIMANT______________________ ANALYST_______________/____

W/E___________________________ MSS___________________/____

SSN___________________________ "A" AAJ_______________/____

JURIS_________________________ "B" AAJ_______________/____

CA#___________________________ OTHER_________________/____

ALJ DECISION

[ ] PF [ ] UNF [ ] FF _______________________________________________________________

EXCEPTIONS RECEIVED: ACTION RECOMMENDED:

[ ] Yes [ ] No Invoke Own Motion

Authority to Assume

Jurisdiction and

[ ] Decline to Assume [ ] Issue Decision

Jurisdiction [ ] Remand

or PRIOR NOTICE REQUIRED

[ ] Assume Jurisdiction

to

[ ] Issue Decision

[ ] Remand

Prior Notice Required

[ ] Yes [ ] No

A. Technical Considerations:

1. Insured Status Requirements

[ ] N/A

[ ] Fully insured to _______________

[ ] 20/40 met to ___________________

[ ] Special insured status requirements met (age 31, etc.)

2. Work After EOD

[ ] None indicated by evidence (including E/R) or testimony

[ ] Evaluated by ALJ; appropriate findings made

[ ] Other (describe in detail here)

3. Prior Application Subject to Reopening

[ ] N/A

[ ] ALJ declined reopening

[ ] Other (describe fully here)

B. Procedural Considerations:

1. Evidence received on remand proffered

[ ] N/A [ ] Yes [ ] No

2. ALJ appropriately dealt with requests for cross-examination, further production of evidence, etc.

[ ] N/A [ ] Yes [ ] No

3. Medical development complete

[ ] Yes [ ] (identify any pertinent outstanding records known to exist)

4. Substantial evidence in support of later onset

[ ] N/A [ ] Yes (Exh.___) [ ] No

5. Substantial evidence in support of unfavorable aspect of decision

[ ] N/A [ ] Yes [ ] No

[ ] No severe impairment (Exh.___)

[ ] Ability for PRW (Exh.___)

[ ] Rules or framework of Rules

[ ] RFC (Exh.___)

[ ] Skills (Exh.___ or N/A)

[ ] Age (Exh.___)

[ ] Education (Exh.___)

C. Analysis:

1. Court remand for:

(Describe specifics of the order and anything added

in the Appeals Council's remand order.)

2. Action on remand to ALJ:

(Describe supplemental hearing, expert testimony,

medical development, non-medical development.)

3. ALJ decision:

(Describe findings, particularly those pertinent to

the court and Appeals Council remand orders.)

4. Exceptions:

(Describe them fully and state what action they require.)

5. Applicable Circuit Court Considerations:

[ ] Opinion evidence

[ ] Pain

[ ] Credibility

[ ] Acquiescence issue

[ ] Medical development standards

[ ] Need for VE testimony

6. Other considerations:

(Describe any deficiencies in decision, any class action problem, any other handicap to defensibility.)

7. Recommendation:

EXHIBIT 9 - AC Text CRC 21

Appeals Council Notice - Appeals Council Declines to Assume

Jurisdiction After Receipt of Exceptions

1. Refer to: (a)______________

(b)_________________________

2. (a)_________________________

(b)_________________________

(c)_________________________

3. Dear (a)___________________:

Re: (b)(Claimant's name) vs. Secretary of HHS

U.S.D.C. for (c)(district)

Civil Action Number: (d)_________________

4. We have considered the reasons you disagree with the Administrative Law Judge's decision and all of the issues presented in this case. We have concluded that there is no basis under the regulations for the Appeals Council to assume jurisdiction.


Explanation of Our Conclusion

5. [Insert complete response to all exceptions and explain why we are not changing the ALJ's decision.]

What This Action Means

6. - Under Social Security Administration regulations 20 CFR (a)[404.984(b)(2)] OR (b)[416.1484(b)(2)] OR (c)[404.984(b)(2) and 416.1484(b)(2)], the Administrative Law Judge's decision is the final decision of the Secretary after remand by the court.

7. - We will prepare a certified copy of the administrative record and forward it to the United States Attorney for filing with the court. If you have questions about the court case, you may wish to contact the District Court.

Sincerely yours,

Administrative Appeals Judge, Appeals Council

8. cc: (Claimant's name and address)

EXHIBIT 10 - AC Text CRC 22

Appeals Council Notice - Appeals Council Assumes Jurisdiction after Receipt of Exceptions and Proposes to Issue Decision not Fully Favorable

1. Refer to: (a)______________

(b)_________________________

2. (a)_________________________

(b)_________________________

(c)_________________________

3. Dear (a)___________________:

Re: (b)(Claimant's name) vs. Secretary of HHS

U.S.D.C. for (c)(district)

Civil Action Number: (d)_________________

4. We have considered your reasons for disagreeing with the Administrative Law Judge's decision. We are assuming jurisdiction of this case under the authority of Social Security Administration regulations 20 CFR (a)[404.984(b)(3)] OR (b)[416.1484(b)(3)] OR (c)[404.984(b)(3) and 416.1484(b)(3)].

Issues We Will Consider

5. We will review all issues considered in the Administrative Law Judge's decision, whether or not the Administrative Law Judge ruled favorably on them.

6. Based on the present record, we are prepared to find (a) ______

______

______

______

We propose to take this action because (b) ______

______

______

______

______

We Will Not Act for 30 Days

- You may file briefs or other written statements about the facts and law relevant to this case.

7. - You should send any briefs or written statements to us at 5107 Leesburg Pike, Falls Church, VA 22041-3255. Please include the claimant's Social Security number on your correspondence.

- If we do not receive anything from you within 30 days from the date of this notice, we will proceed with our action.

Sincerely yours,

Administrative Appeals Judge, Appeals Council

Administrative Appeals Judge, Appeals Council

8. cc: (Claimant's name and address)

EXHIBIT 11 - AC Text CRC 23

Appeals Council Notice - Appeals Council Assumes Jurisdiction after Receipt of Exceptions and Proposes to Consider Issue(s) not Raised in Claimant's Exception and Remand

1. Refer to: (a)______________

(b)_________________________

2. (a)_________________________

(b)_________________________

(c)_________________________

3. Dear (a)___________________:

Re: (b)(Claimant's name) vs. Secretary of HHS

U.S.D.C. for (c)(district)

Civil Action Number: (d)_________________

4. We have considered your reasons for disagreeing with the Administrative Law Judge's decision. We are assuming jurisdiction of this case under the authority of Social Security Administration regulations 20 CFR (a)[404.984(b)(3)] OR (b)[416.1484(b)(3)] OR (c)[404.984(b)(3) and 416.1484(b)(3)].

Issues We Will Consider

5. We will review all issues considered in the Administrative Law Judge's decision, whether or not the Administrative Law Judge ruled favorably on them.

6. In addition to the issues the Administrative Law Judge considered, we will decide the following:

(a)[Insert Statement of Issues]

7. Based on the present record, we are prepared to remand this case to an Administrative Law Judge for further proceedings including (a) ______

______

______

______

We propose to take this action because (b) ______

______

______

______

- You may file briefs or other written statements about the facts and law relevant to this case.

8. - You should send any briefs or written statements to us at 5107 Leesburg Pike, Falls Church, VA 22041-3255. Please include the claimant's Social Security number on the correspondence.

- If we do not receive anything from you within 30 days from the date of this notice, we will proceed with our action.


Sincerely yours,

Administrative Appeals Judge, Appeals Council

Administrative Appeals Judge, Appeals Council

9. cc: (Claimant's name and address)

EXHIBIT 12 - AC Text CRC 30

Sample Text - Claimant Files Exceptions, Appeals Council Assumes Jurisdiction and Remands to ALJ

ORDER REMANDING CASE TO THE ADMINISTRATIVE LAW JUDGE

1. (a) [Claimant]

(b) [Social Security Number]

2. ON REMAND FROM THE USDC ___________________________

3. The Administrative Law Judge issued a decision on (a)_________.

The claimant filed written exceptions to that decision on (b)_________.

4. Under the authority of the Social Security Administration regulations (a)[20 CFR 404.984(b)(3)] OR (b)[20 CFR 416.1484(b)(3)] OR (c)[20 CFR 404.984(b)(3) and 416.1484(b)(3)], the Appeals Council (d)[assumes jurisdiction of this case and remands it] OR (e)[remands this case] to an Administrative Law Judge for further proceedings, including a new decision.

5. [Insert reasons for the remand. Select a stored paragraph from Appeals Text Guide section 6-20-29 or 6-20-39 or, if necessary, prepare an original insert.]

6. The Administrative Law Judge may take any further action needed to complete the administrative record.

APPEALS COUNCIL

_________________________

Administrative Appeals Judge

_________________________

Administrative Appeals Judge

EXHIBIT 13 - AC Text CRC 31

Notice Transmitting Appeals Council Remand in Court Remand Case

1. Refer to: (a)______________

(b)_________________________

2. (a)_________________________

(b)_________________________

(c)_________________________

3. Dear (a)___________________:

Re: (b)(Claimant's name) vs. Secretary of HHS

U.S.D.C. for (c)(district)

Civil Action Number: (d)_________________

4. Our order remanding this case to an Administrative Law Judge is enclosed. Please read this notice and the order carefully.

What This Order Means

5. - We have sent this case to an Administrative Law Judge. In the order we explain why we did this and what actions the Administrative Law Judge will take on this claim.

- The Administrative Law Judge may also take any other action necessary to complete this case.

The Next Action on This Case

6. - An Administrative Law Judge will contact you to tell you what you need to do.

- If you do not hear from an Administrative Law Judge within 30 days, you may contact your local hearing office. You may also contact that office at any time if you have questions.

This notice and enclosed order of remand mailed

_____________________ [This date will be entered by the person releasing the Appeals Council remand.]

7. cc: Name and Address of Claimant

EXHIBIT 14 - AC Text CRC 40

Appeals Council Decision Notice of Unfavorable Decision Following Court Remand

NOTICE OF APPEALS COUNCIL DECISION

DENIAL

PLEASE READ CAREFULLY

1. Refer to: (a)______________

(b)_________________________

2. (a)_________________________

(b)_________________________

(c)_________________________

3. Dear (a)___________________:

Re: (b)(Claimant's name) vs. Secretary of HHS

U.S.D.C. for (c)(district)

Civil Action Number: (d)_________________

4. Enclosed is the Appeals Council's decision on this case. This decision is the final decision of the Secretary of Health and Human Services.

Please read this notice and the decision carefully.

What Happens Next

5. - We will prepare a certified copy of the administrative record and forward it to the United States Attorney for filing with the court. If you have questions about the court case, you may wish to contact the District Court.

This notice and enclosed copy of decision mailed

_____________________ [This date will be entered by the person releasing the Appeals Council decision.]

6. cc: (Claimant's name and address)

EXHIBIT 15 - AC Text CRC 41

Appeals Council Notice of Fully Favorable Decision Following Court Remand

NOTICE OF FAVORABLE APPEALS COUNCIL DECISION

PLEASE READ CAREFULLY

1. Refer to: (a)______________

(b)_________________________

2. (a)_________________________

(b)_________________________

(c)_________________________

3. Dear (a)___________________:


Re: (b)(Claimant's name) vs. Secretary of HHS

U.S.D.C. for (c)(district)

Civil Action Number: (d)_________________

4. Enclosed is the Appeals Council's decision on this case. This decision is the final decision of the Secretary of Health and Human Services.

Please read this notice and the decision carefully.

This Decision Is Fully Favorable

5. - Another Social Security office will process the decision and will send you another notice about the benefits your client will receive. The local Social Security office or another Social Security office may ask for more information. If so, please help your client answer promptly.

- You and your client should hear from us within 60 days. If you do not, contact the local Social Security office.

If You Wish To Charge a Fee for Your Services

A representative who wishes to charge a fee for services performed in a proceeding before the Social Security Administration must file a petition. To do so:

6. - Complete the enclosed petition form.

- Give your client the CLAIMANT'S COPY and retain the REPRESENTATIVE'S COPY.

- Send the remaining copies directly to the

Attorney Fee Staff

Office of Hearings and Appeals

Department of Health and Human Services

5107 Leesburg Pike

Falls Church, VA 22041-3255

and mark the envelope "Do Not Open in Mailroom."

This notice and enclosed copy of decision mailed

______________________ [This date will be entered by the person releasing the Appeals Council decision.]

7. cc: (Claimant's name and address)

EXHIBIT 16 - AC Text CRC 42

Appeals Council Notice of Partially Favorable Decision Following Court Remand

NOTICE OF PARTIALLY FAVORABLE APPEALS COUNCIL DECISION

PLEASE READ CAREFULLY

1. Refer to: (a)______________

(b)_________________________

2. (a)_________________________

(b)_________________________

(c)_________________________

3. Dear (a)___________________:

Re: (b)(Claimant's name) vs. Secretary of HHS

U.S.D.C. for (c)(district)

Civil Action Number: (d)_________________

4. Enclosed is the Appeals Council's decision on this case. This decision is the final decision of the Secretary of Health and Human Services.

Please read this notice and the decision carefully.

This Decision Is Partially Favorable

5. - Another Social Security office will process the decision and will send you another notice about the benefits your client will receive. The local Social Security office or another Social Security office may ask for more information. If so, please help your client answer promptly.

- You and your client should hear something about the decision within 60 days. If you do not, contact the local Social Security office.

If You Wish To Proceed with the Civil Action

6. - You should notify us promptly if you wish to continue the court action. Before we send the file to the office which will process the decision, we will hold it for 10 days waiting to hear from you. We will assume that you do not wish to continue the court action if we do not hear from you within 10 days.

- To notify us, please call us on (a)__________________, or you may write us at 5107 Leesburg Pike, Falls Church, VA 22041-3255. If you write, please include the claimant's Social Security number on the correspondence.

- If you advise us that you wish to proceed, we will prepare the transcript for the court. To avoid any unnecessary delay in processing the decision or in preparing the transcript, you should notify us within the 10-day period.

If You Wish To Charge a Fee for Your Services

A representative who wishes to charge a fee for services performed in a proceeding before the Social Security Administration must file a petition. To do so:

- Complete the enclosed petition form.

7. - Give your client the CLAIMANT'S COPY and retain the REPRESENTATIVE'S COPY.

- Send the remaining copies directly to the

Attorney Fee Staff

Office of Hearings and Appeals

Department of Health and Human Services

5107 Leesburg Pike

Falls Church, VA 22041-3255

and mark the envelope "Do Not Open in Mailroom."

This notice and enclosed copy of decision mailed

______________________ [This date will be entered by the person releasing the Appeals Council decision.]

8. cc: (Claimant's name and address)

EXHIBIT 17 - AC Text CRC 43


Sample Decision - Claimant Filed Exceptions, Appeals Council Sent Prior Notice

UNFAVORABLE DECISION

Period of Disability, Disability Insurance Benefits and Supplemental Security Income (Adult Disability)

UNFAVORABLE

DECISION OF APPEALS COUNCIL

1. Period of Disability,

Disability Insurance Benefits

(a)(Claimant) and Supplemental Security

Income_______________________

(b)(Social Security number)

ON REMAND FROM THE USDC_______________________________

2. On (a)________, the claimant submitted written exceptions to the Administrative Law Judge's decision of (b)________. The Administrative Law Judge found that (c)[Insert the ALJ's finding on the issue of "disability."]

3. On (a)________, the Appeals Council notified the claimant that (b)[Insert basis for assuming jurisdiction]. The Appeals Council advised the claimant that it proposed to issue a decision finding (c)[Insert Appeals Council's proposed decision.] The Appeals Council also notified the claimant that it would consider a brief or other written statement (d)[he/she] submitted within 30 days from the date (e)[he/she] received the notice.

[Use the following paragraph if the claimant did not submit comments or additional evidence in response to the notice assuming jurisdiction.]

4. The Appeals Council has not received a response to its notice assuming jurisdiction. The Council has entered the claimant's exceptions and its notice into the record as Exhibits (a)________________________.

[Use the following paragraph if the claimant submitted evidence with the exceptions and/or responded to the Appeals Council's notice.]

5. (a) [Briefly acknowledge comments and/or identify any additional evidence the claimant submitted to the Appeals Council.] The Appeals Council has entered the claimant's exceptions, its notice dated (b)[,] (c)[and] (d)[the additional evidence] (e)[,] (f)[and] (g)[and the claimant's comments on the Appeals Council's proposed decision] into the record. These are listed on the Supplemental List of Exhibits attached to this decision.

6. The Appeals Council adopts the Administrative Law Judge's statements as to (a)[the Social Security Administration Regulations] (b)[,] (c)[and] (d)[the issues in the case] (e)[,] (f)[and] (g)[the evidentiary facts].

7. The Appeals Council (a) [Indicate whether the Appeals Council concurs with the ALJ's findings and conclusions on the issue of disability and the basis for the finding(s).]

8. Social Security Administration regulations specify steps for evaluating disability (> 20 CFR 404.1520 and 416.920). (a)[Insert rationale supporting the Appeals Council's decision. Address each sequential evaluation step through the basis for denial. Include original language addressing pertinent issues; i.e., exceptions, additional evidence, claimant's credibility, expert testimony, etc.]

FINDINGS OF THE APPEALS COUNCIL

9. The Appeals Council has considered the entire record and makes the following findings:

(a)[Insert the appropriate findings.]

DECISION

10. Based on the applications filed on (a)__________________, the claimant is not entitled to a period of disability or disability insurance benefits under sections 216(i) and 223, respectively, of the Social Security Act, and is not eligible for supplemental security income under sections 1602 and 1614(a)(3)(A) of the Act.

APPEALS COUNCIL

____________________________

Administrative Appeals Judge

_________________________ ___

Administrative Appeals Judge

Date:

11. SUPPLEMENTAL LIST OF EXHIBITS

EXHIBIT 18 - AC Text CRC 50

Notice - Appeals Council Assumes Jurisdiction on its Own Motion

1. Refer to: (a)______________

(b)_________________________

2. (a)_________________________

(b)_________________________

(c)_________________________

3. Dear (a)___________________:

Re: (b)(Claimant's name) vs. Secretary of HHS

U.S.D.C. for (c)(district)

Civil Action Number: (d)_________________

4. The Administrative Law Judge notified you that the Appeals Council could review your client's case within 60 days of the date of the decision. This letter is to advise you that we intend to review this case under the authority of Social Security Administration regulations 20 CFR (a)[404.984(c)] OR (b)[416.1484(c)] OR (c)[404.984(c) and 416.1484(c)].

Issues We Will Consider


5. We will consider all issues relating to the case, whether or not the Administrative Law Judge considered them.

[Include the following paragraph if the Appeals Council is considering an issue(s) the ALJ did not consider.]

6. In addition to the issues the Administrative Law Judge considered, we will consider the following (a)[issue/issues]: (b) ______

______

______

[Select Paragraph 7 or 8]

7. Based on the present record, we propose to find (a) ______

______

______

[Select Paragraph 7 or 8]

[OR]

8. We propose to remand this case to an Administrative Law Judge for further proceedings including (a) ______

______

______

______

9. We propose to take this action because (b) ______

______

______

______

We Will Not Act for 30 Days

- You may file briefs or other written statements about the facts and law relevant to this case.

10. - You should send the briefs to us at 5107 Leesburg Pike, Falls Church, VA 22041-3255. Please include the claimant's Social Security number on your correspondence.

- If we do not receive anything within 30 days from the date you receive this notice, we will proceed with our action.

Sincerely yours,

Administrative Appeals Judge, Appeals Council

Administrative Appeals Judge, Appeals Council

11. cc: (Claimant's Name and Address)

EXHIBIT 19

Court Remand Case Flag

ATTACH FLAG TO CLAIM FILE WHEN IT IS AVAILABLE

COURT REMAND FLAG

(OCA or OAO Completes Items 1-4)

1. Jurisdiction_____Date of Court's Remand Order __/___/____ Mo.Day Year

2. Time Limit? (Circle one) YES NO

If YES, Action required (specify) ________________________

DUE DATE ___/_____/____ Hearing office notified? YES NO

Mo. Day Year

3. Delayed Case? (Circle one) YES NO

4. Does this jurisdiction* require a certified record even if the decision is fully favorable? (Circle one) YES NO

*USDCs for Idaho, Maine, New Hampshire, West Virginia, Wisconsin, E.D. of North Carolina, E.D. of Washington

IDENTIFICATION OF DECISION

(Decision Writer Completes Items 5, 6 and 7)

5. Claim type_________ (e.g., SSDC, DIWC, DIWW, etc)

6. Nature of Decision(s): Route To:

Off. of Appellate Operations

_____Unfavorable Decision 5107 Leesburg Pike

Falls Church, VA 22041-3255

_____Fully Favorable Same as non-court case

_____Partially Favorable Same as non-court case

7a. Is the decision fully favorable, AND the answer to item 4 above "yes?" YES NO

7b. Is the decision partially favorable? YES NO

IF either 7a or 7b is YES, the hearing office must enter the following remark on the route slip:

After effectuation, send the file (and hearing cassette, if any) to:

Office of Appellate Operations

5107 Leesburg Pike

Falls Church, VA 22041-3255

Call your Regional Office if you have any questions about routing a court remand case.

A. Attaching Flag

The purpose of the flag is to alert hearing office (HO) personnel that the case is a court remand and to bring to the ALJ's attention any special requirements in the remand. The flag will also alert the effectuating component that the case is a court remand and that it needs to send the file to the Office of Appellate Operations (OAO) after effectuating the decision.

The Office of Civil Actions (OCA) will complete Items 1 - 4 on the flag and attach a flag to the certified record of the administrative proceedings, or to the claims file if it is available, when it sends the court remand to the HO Chief ALJ. If the court case is an Appeals Council re-remand, OAO will attach the flag.

B. Completing the Flag - OCA or OAO Actions

Item 1: Enter the name of the court which remanded the case. For example, N.D. CAL.

Enter the date the court issued its order. This is usually found in the last line of the court's order or is stamped at the end of the order by the clerk of the court. Do NOT enter the date you received the order.

Item 2: Circle "YES" if the court requires us to take some action within a set number of days. For example, courts sometimes require us to hold a hearing within 60 days of the court's order.

If you answered "YES," enter what the court ordered us to do. For example, "hold hearing within 60 days" or "issue decision within 90 days."

Enter the date (month, day and year) by which we must complete the required action.

Circle "YES" if you notified the HO that OCA was sending a time limit court remand order.


Item 3: Circle "YES" if more than 125 days have passed since the date of the court's order in Item 1.

Circle "YES" if the Appeals Council is remanding the case for a second time.

Item 4: Circle "YES" if we are required to prepare a certified record of the proceedings on remand. Currently, the following United States District Courts require us to prepare a certified record even if we issue a fully favorable decision:

Maine

New Hampshire

West Virginia (all districts)

Wisconsin (all districts)

Idaho

Eastern District of North Carolina

Eastern District of Washington

C. Completing the Flag - Hearing Office Action

ATTACH FLAG TO CLAIMS FILE WHEN THE HO RECEIVES THE FILE

The decision writer completes items 5, 6 and 7 of the flag to identify the type of case and to ensure correct routing.

Item 5: Enter the claim type. This information is on the SSADARS coding sheets or the HA-670 card on the left side of the certified record (or claims file if it is available).

Item 6: Check the type of the decision. In some situations, you must check more than one block. For example, it is possible to have a favorable title XVI disability decision combined with an unfavorable title II disability decision. In this case, check both unfavorable and favorable. The files will be split and routed separately.

In all cases involving adverse parties, you must check unfavorable.

Item 7a

and 7b: Circle "YES" or "NO" on 7a and 7b.

If either 7a or 7b is YES, the HO must enter the special remark on the transmittal slip (HA-5051). The required remark is contained in the Automated Case Routing System. It should not be necessary to manually enter the remark on the route slip.

NOTE: The HO is responsible for alerting the effectuating component that it must return the file (and cassette) to OAO for preparation of the certified record of the administrative proceedings on remand. This is necessary in all cases with partially favorable decisions and in all cases in the jurisdictions listed in item 4 regardless of the type of the decision.

If both 7a and 7b are NO, no special remark is needed on the HA-5051.

EXHIBIT 20

Routing Instructions for Court Remand Cases

Use Court Case route slip and route as follows:

Exceptions Filed - Recommendation is that Appeals Council Not Assume Jurisdiction

Forward Recommendation and Final Action Document:

1) Branch Chief

2) Branch Control

3) "A" AAJ

4) Court Record Technician

Appeals files on these cases will be returned to the Program Review Branch. See > I-3-180 D. 3. d.

Exceptions Filed - Recommendation that Appeals Council Assume Jurisdiction and Issue a Decision

OR

No Exceptions Filed - Recommendation that Appeals Council Assume Jurisdiction to Issue Decision or Remand

IF PRIOR NOTICE REQUIRED

Forward Recommendation and Notice of Proposed Action: 1)

Branch Chief 2)

Branch Control 3)

"A" AAJ 4)

"B" AAJ 5)

Analyst (for diary)

Files will be returned to the branch for diary and further action. See > I-3-180 D. 3. c. (1) and > I-3-180 F. 3. b. (2).

Exceptions Filed - Appeals Council Issuing Fully Favorable Decision

IF NO PRIOR NOTICE REQUIRED

Forward Recommendation and Final Action Document:

1) Branch Chief

2) Branch Control

3) "A" AAJ

4) "B" AAJ

5) Court Record Technician (only for cases on remand from Maine, New Hampshire, Wisconsin, Idaho, E.D. of Washington, West Virginia and the E.D. of North Carolina)

6) Effectuating Component(s)

A copy of each decision will be sent to the Assistant Deputy Director.

Appeals Files on these cases will be directed to the Attorney Fee Branch. See > I-3-180 D. 3. c. (1). Exceptions Filed - Appeals Council Issuing an Unfavorable Decision [Prior Notice Already Sent]

Forward the Appeals Council Decision:

1) Branch Chief

2) Branch Control

3) "A" AAJ

4) "B" AAJ

5) Court Record Technician

Appeals files on these cases will be returned to the Program Review Branch. See > I-3-180 D. 3. c. (1).

Exceptions Filed - Appeals Council Issuing a Partially Favorable Decision [Prior Notice Already Sent]

Forward the Appeals Council Decision:

1) Branch Chief

2) Branch Control

3) "A" AAJ

4) "B" AAJ

5) Analyst (for 20-day diary/claimant's response regarding continued litigation)


6) Court Record Technician (only for cases on remand from Maine, New Hampshire, Wisconsin, Idaho, E.D. of Washington, West Virginia and the E.D. of North Carolina)

7) Effectuating Component(s)

A Copy of the decision on all partially favorable decision cases will be forwarded to the Assistant Deputy Director.

Appeals files will be directed to the Attorney Fee Branch. See > I-3-180 D. 3. c. (1).

Exceptions Filed - Appeals Council Remand

Forward the case analysis and remand order:

1) Branch Chief

2) Branch Control

3) "A" AAJ

4) "B" AAJ

Appeals files will be returned to the Program Review Branch for storage. See > I-3-180 D. 3. c. (1) and > I-3-180 D. 3. c. (2).

EXHIBIT 21 - Court Case Route Slip

TABLE

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

EXHIBIT 22%

Critical Case Flag

EXPEDITIOUS

HANDLING

REQUIRED

( ) CPS Processed

( ) CPS Not Processed

Social Security Administration

Office of Hearings and Appeals

CRITICAL DIRE NEED

EXHIBIT 23

TERI Flag

NAME_____________________________________________________ _

CLAIM NUMBER______________________________________________

TITLE II_______ TITLE XVI_______ CONCURRENT_______

DATE IDENTIFIED AS TERI CASE________________

DATE SENT TO: HEARING OFFICE___________ AC____________

ATTORNEY FEE ATTORNEY FEE DIRECT

WAIVED______ PAYMENT WAIVED______

DO NOT REMOVE THIS FLAG UNTIL ALL ADJUDICATIVE ACTIONS HAVE

BEEN COMPLETED AND THE APPEALS PROCESS HAS BEEN EXHAUSTED

EXHIBIT 24

Disposition of Subsequent Application Submitted for

Escalation and/or Consolidation with Request for Review

Situation

If subsequent application is under different title than request for review case, and FO erroneously sends subsequent application to AC.

Disposition

Immediately return to FO for adjudication under POMS DI 12045.10E. (Use HA-5-5 route slip).

Situation

If subsequent application is under same title and AC is:

Proposing denial, dismissal, unfavorable affirmation, or partially favorable decision which is not fully favorable with respect to all issues raised by the sub-application.

Disposition

Instruct Release Clerk to send subsequent application to FO with copy of final AC action so FO can adjudicate that claim (Use HA-505) and notify claimant and representative.

Situation

Proposing remand or fully favorable or partially favorable decision which is fully favorable with respect to all issues raised by the subsequent application.

Disposition

Keep subsequent application in file to be treated as duplicate and notify claimant and representative in remand order or decision that subsequent application is a duplicate and that separate action will not be taken on it.



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