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HALLEX I-3-500

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: Denial of Request for Review

Chapter: I-3-500

November 11, 1994

Current through June 1997

I-3-500 TABLE OF CONTENTS

> I-3-501 General

> I-3-510 Recommendation to Deny Review of an ALJ's Decision

> I-3-520 Consideration of Additional Evidence

> I-3-530 Consideration of Legal Arguments or Contentions

> I-3-540 Preparation of a Denial Notice

> I-3-541 Denial Notice Returned as Undeliverable

> I-3-550 Appeals Council Receives Additional Evidence After Denial of Request for Review

> I-3-560 Expedited Appeals Process

> I-3-570 Recommendation to Deny Request for Review of ALJ's Dismissal

> I-3-580 Additional Evidence or Legal Arguments or Contentions

> I-3-582 Social Security Rulings and Acquiescence Rulings

> I-3-585 Notice of Denial -- ALJ Dismissed in Part


HALLEX I-3-501

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: Denial of Request for Review

Chapter: I-3-500

June 30, 1994

Current through June 1997

I-3-501 GENERAL

Citations: > 20 CFR 404.967, 404.981, 410.662, 410.666, 416.1467, and 416.1481

> 42 CFR 405.724 and 498.83

The Appeals Council will deny a request for review when there is no basis under the regulations for granting or dismissing the request.

When the Appeals Council denies a request for review, it will notify the claimant, at his or her last known address, of its action. In the denial notice, the Appeals Council will specifically address additional evidence or legal arguments or contentions submitted in connection with the request for review. When the Appeals Council denies a request for review of an ALJ's decision, it will advise the claimant of the right to file a civil action.

The Appeals Council will also notify any other parties to the request for review of its action on the case.



HALLEX I-3-510

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: Denial of Request for Review

Chapter: I-3-500

November 11, 1994

Current through June 1997

I-3-510 RECOMMENDATION TO DENY REVIEW OF AN ALJ'S DECISION (REVISED 11/94)

Upon receiving a request for review of an ALJ's action, the analyst will carefully consider the claimant's contentions, the evidence in the case, and the ALJ's action.

Once the analyst has completed the preliminary review of the case, as described in chapter > I-3-100, and has concluded that there is no basis under the regulations for the Appeals Council to dismiss or grant review, the analyst will:

- prepare Form HA-52, Disability Case Fact Sheet, and Form HA-52A, Disability Case Analysis and Recommendation.

- prepare a denial notice for the Council to notify the claimant and representative of its action.

- if additional evidence and/or arguments are received, include appropriate language in the denial notice.

- mark any additional evidence and briefs as Appeals Council exhibits and prepare Form HA-5171-U10, Order of the Appeals Council, for the "A" AAJ's signature. The form, which may be handwritten, ensures that all required documents are included in the record if a court transcript is prepared.

- if a subsequent application under the same title is received, the analyst must instruct the Release Clerk to send the subsequent application to the servicing FO with a copy of the final Appeals Council's action so the FO can adjudicate that claim and notify the claimant and representative.



HALLEX I-3-520

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: Denial of Request for Review

Chapter: I-3-500

November 11, 1994

Current through June 1997

I-3-520 CONSIDERATION OF ADDITIONAL EVIDENCE

When a claimant or representative submits additional evidence in connection with a request for review, the analyst must determine whether the evidence is new and material, and if so, whether it warrants any change in the ALJ's decision. In a disability case, the evidence submitted must concern both the issues and the time period considered by the ALJ. See > I-3-306 B. for a discussion of the closed record provisions. If the additional evidence is relevant to the issues and time period considered by the ALJ, and thus is material, the analyst must also decide whether it is new.

A. New and Material Evidence

1. See > I-3-306 A. for definition and general discussion of new and material evidence.

2. When evidence is new and material but does not provide a basis for granting review, the analyst must provide language for the denial notice assessing the "weight of the evidence" (> 20 CFR 404.970 and 416.1470) and explain why the evidence does not justify granting the request for review.

B. New But Not Material Evidence

1. New evidence is not material to the issues considered by the ALJ if, for example:

- the evidence shows a worsening of the condition after the expiration of insured status in title II disability cases; or

- the evidence shows a worsening of the claimant's condition and/or the onset of a new impairment after the date of the Administrative Law Judge's decision.

2. When evidence is new but not material, the analyst must provide language for the denial notice explaining why the evidence is not material.

C. Evidence Which Is Neither New Nor Material

When evidence received duplicates evidence of record (all or part of an exhibit), the analyst must provide language for the denial notice describing the duplication and referring to the location of the evidence in the record.

D. Evidence Concerns Period After the ALJ Hearing Decision

When the "closed record" provisions apply, the Appeals Council will consider only the period through the date of the ALJ hearing decision and will not consider (based on the pending application) possible entitlement after that date. New evidence pertaining to the period after the ALJ hearing decision is "material" to the decision on the application before the Appeals Council if it can reasonably be related to the period on or before the date of the ALJ hearing decision. The Appeals Council only evaluates evidence that is not new and material to the period through the date of the ALJ hearing decision to the extent necessary to determine that it is not new and material.

If new evidence received with the request for review does not relate to the period on or before the date of the ALJ hearing decision, the analyst will return the evidence to the claimant with a notice as described in > 20 CFR 404.976(b) and > 416.1476(b) of the regulations, regardless of who submitted the evidence or whether the evidence suggests that the claimant may have met the requirements for entitlement after the date of the ALJ hearing decision. In situations where the new evidence is offensive or detrimental to the claimant's health, see HALLEX > I-3-601 C. 2. The analyst will retain a copy of the evidence in the claim file.



HALLEX I-3-530

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: Denial of Request for Review

Chapter: I-3-500

June 30, 1994

Current through June 1997

I-3-530 CONSIDERATION OF LEGAL ARGUMENTS OR CONTENTIONS

In addition to addressing any additional evidence received, denial notices must address any legal arguments or contentions submitted in connection with the request for review.

The analyst must deal directly with the issue(s) raised by relying on the facts presented in the record and, when appropriate, by referring to pertinent authority in the law, regulations, or rulings. The denial notice must clearly explain to the claimant and a reviewing court why the Appeals Council found the ALJ hearing decision to be supported by substantial evidence.

1. When a claimant or representative makes a specific argument or contention or raises a question or issue which is pertinent to the matter(s) before the Appeals Council in a request for review, the analyst must draft responsive language to insert in the denial notice. The language must respond to each argument or point raised.

- When the ALJ hearing decision addressed the specific contentions raised, the analyst must refer to the decision in the response. For example: "In reaching this conclusion, the Appeals Council considered your attorney's contention that.... The Administrative Law Judge discussed ... in his decision (see pages 4 and 5 of the ALJ hearing decision). He considered ... and found...."

- If the ALJ hearing decision did not specifically deal with the issue(s) raised, but a change in the decision is nevertheless not warranted, the response must deal directly with the issue(s) raised and, when relevant, cite appropriate regulations. However, the Appeals Council may not supply missing rationale. See section > I-3-540 B.

- When the argument shows that the claimant or representative misunderstood or misinterpreted a statement or finding in the ALJ hearing decision, provide a clarification or explanation as appropriate in the denial notice.

2. When the claimant or representative simply makes a general statement objecting to the conclusion reached in the case, the analyst will draft a general response. For example, a general response will be provided to answer such statements as "I know I'm disabled" or "I know other people who are getting disability who aren't as bad off as I am."

3. When the claimant or representative requests that the Appeals Council take a particular action, e.g., remand for a special consultative examination, and the record indicates that no further development or proceedings are warranted, add a specific explanation to the notice giving the reason(s) the Appeals Council believes that the proposed action is unnecessary.

4. If the analyst is unsure whether to respond to one or more of the questions raised, or needs to obtain direction from the Appeals Council before preparing a response, the analyst must consult with the branch chief and, as appropriate, with the Administrative Appeals Judge (AAJ).



HALLEX I-3-540

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: Denial of Request for Review

Chapter: I-3-500

June 30, 1994

Current through June 1997

I-3-540 PREPARATION OF A DENIAL NOTICE

A. General

The general format for denial notices is set forth in Appeals Text Guide section 6-10. That section provides guidance on the consideration of additional evidence, response to contentions and inclusion of appropriate court review paragraphs.

B. Drafting a Denial Notice

The analyst must furnish the typist with sufficient information to prepare a complete notice. The analyst must identify:

- the name and current address of the claimant and representative, if any;

- the proper denial shell;

- the appropriate stored paragraph(s) to be inserted, if any;

- any variable fill-ins;

- any original rationale or discussion to be inserted;

- any modifications to be made to the standard material;

- any documents which are to be enclosed with the notice; and

- any translation or Spanish notice instructions.

NOTE: In the denial notice, do not make substantive findings or changes in the hearing decision (e.g., 20/40, RFC). Make only "ministerial" corrections (e.g., of a typographical error, incorrect date or exhibit number). Exercise great care to avoid any appearance of making a substitute finding or otherwise revising the Administrative Law Judge's decision in any way in the denial notice. The Appeals Council should cite pertinent rationale provided by the Administrative Law Judge and can elaborate on that rationale; however, the Council may not supply completely missing rationale or alter any findings or conclusions. In short, the Appeals Council may not amend, modify or change anything of substance in the Administrative Law Judge's decision except by granting the request for review and issuing a decision.

C. Special Situations

1. Notice for Spanish-speaking Persons

Identify the need to communicate in Spanish according to the criteria in section > I-3-160 B. If the file demonstrates a need for Spanish communication, the analyst must prepare the Appeals Council's denial of review in Spanish and in English. This is accomplished in one of two ways, depending on the English notice.

a. Preprinted English Notice

When sending the preprinted denial notice (HA-L28-U7), also send a Spanish version. The Spanish version is an exact translation of the English. Section > I-3-160 C. explains the procedures for transmitting these preprinted forms. The appeals technician must ensure that the form numbers as well as the edition dates are the same before releasing the Spanish and English versions.

b. All Other English Denial Notices.

Transmit all other English denial notices by Form HA-L1098-SP, a special Spanish language informational notice which is designed for use with all programs and which includes an English translation on the reverse side. It informs the claimant that the notice of Appeals Council action on the request for review is enclosed, that the Council has concluded there is no basis for review, and that the claimant has the right to commence a civil action.

Prepare an appropriate notice of denial of a request for review of an ALJ's decision in English in accordance with usual procedures.

Prepare the HA-L1098-SP with the SSN(s) and full name and address typed in English on the Spanish side of the form only. Do not show the date on the form because the HA-L1098-SP refers to the date on the enclosed notice of Action of the Appeals Council. Make no entries on the English side of the form.

The analyst must clearly state when the HA-L1098-SP is required and provide special instructions to the typist. The instructions must specify that no salutation is to be used. Place the form HA-L1098-SP on top of the actual notice. The "A" AAJ's staff will place a copy of the completed Form HA-L1098-SP in the claim file and send a copy to the claimant's representative, if any.

Do not use the Form HA-L1098-SP to transmit a notice of denial of a request for review of an ALJ's dismissal because there is no right to commence a civil action under the Act.

2. Claimant Resides in Foreign Country

a. Section 205(g) of the Act provides that a civil action may be brought "in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the District Court of the United States for the District of Columbia." Therefore, when a claimant resides in a foreign country, the court review paragraph must be modified to inform such individual that a civil action may be commenced in the U.S. District Court for the District of Columbia, or, if applicable, in the judicial district of the United States where the claimant has his or her principal place of business.


b. Because U.S. District Courts serve Puerto Rico, Guam, the Northern Mariana Islands, and the Virgin Islands, individuals living in these jurisdictions are not considered "foreign residents" for the purpose of judicial review and are provided the regular court review paragraph.

c. If a claimant resides in a foreign country, the usual court review paragraph should be replaced with stored paragraph (SP) 9, 10, or 11 in 6-10-19 of the Appeals Text Guide.

d. The analyst will also note on the route slip "AIR MAIL--FOREIGN CLAIM" whenever the notice is to be sent to a claimant residing in a foreign country.

D. Typing and Proofreading

If the Appeals Text Guide language requires little revision or just a few inserts, typing instructions may be given on the route slip. Otherwise, the analyst will prepare a coding sheet to provide clear instructions. The analyst will then:

- forward the case to the typist for preparation of the notice denying the request for review; and

- proofread the notice after it is typed. If it is accurate, forward the file with the denial notice and recommendation to the Appeals Council for approval.

E. Administrative Appeals Judge's Actions

1. The AAJ will review the proposed action which the analyst prepared.

2. The AAJ may return the case to the analyst for further nalysis, revision, or preparation of a different action.

NOTE: If the Administrative Appeals Judge wishes to take a different action which requires the signature of two AAJs, the AAJ will obtain the concurrence of the "B" AAJ before returning the case to the analyst.

3. If the AAJ approves the recommendation, the AAJ will sign the denial notice and initial and date the analysis.

4. The Appeals Council staff will release the denial notice to the claimant and a copy to the representative, if any, and return the claim file to the OAO branch for retention in the branch mini-dockets.



HALLEX I-3-541

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: Denial of Request for Review

Chapter: I-3-500

June 30, 1994

Current through June 1997

I-3-541 DENIAL NOTICE RETURNED AS UNDELIVERABLE (REVISED 06/94)

When the Post Office returns a claimant's notice of denial of request for review as undeliverable (e.g., the claimant moved and left no forwarding address), Docket and Files Branch will send the returned correspondence to the OAO branch. The Hearings and Appeals Technician or other designated person will:

1. telephone the claimant's representative, if any, or send a brief memorandum to the field office servicing the claimant's last known address, to obtain the new address;

2. prepare a currently dated cover letter when the new address is known, which transmits the original notice of denial. The cover letter informs the claimant that the attached Appeals Council notice previously was undeliverable and that the time period for appeal begins with the receipt of the cover letter;

3. re-send the notice of denial, using the new cover letter, following the usual procedures; and

4. file the original undelivered envelope and photocopies of the cover letter and the original notice of denial in the claim file.

If all attempts to obtain the claimant's new address are unsuccessful, file the original undelivered envelope and notice of denial in the claim file with documentation of all attempts to obtain the new address (e.g., copies of correspondence and reports of telephone contacts). These documents may be helpful in determining the action to take if the claimant later inquires about the case.

On occasion, the Post Office may return, as undeliverable, the representative's copy of a notice. In this event, send the representative's copy of the notice to the claimant with a cover letter explaining that the Post Office returned it as undeliverable.

After completing its action, the OAO branch will return the file to the mini-docket.



HALLEX I-3-550

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: Denial of Request for Review

Chapter: I-3-500

June 30, 1994

Current through June 1997

I-3-550 APPEALS COUNCIL RECEIVES ADDITIONAL EVIDENCE AFTER DENIAL OF REQUEST FOR REVIEW

Occasionally, the Appeals Council receives additional evidence on a case after it has denied a request for review. The Appeals Council's next action will depend, in part, on when the claimant or the claimant's representative submitted the evidence; that is, whether the sender complied with the appropriate timeframe stated on the HA-520 or in a letter granting an extension of time.

A. Claimant Submits Evidence within Appropriate Timeframe

If the claimant submits evidence within the period stated on the request for review form or within any extension of time granted by the Appeals Council, but the evidence was not associated with the claims file until after the Appeals Council denied review, the Council must consider the claimant's request for review again. If the Council decides that denial of the request for review is still appropriate, the Council will send the claimant an amended denial notice vacating the prior action, addressing the additional evidence, and advising the claimant of the right to file a civil action based on the amended notice.

I-3-550 B.

B. Claimant Submits Evidence after the Appropriate Timeframe

If the Appeals Council denies the request for review before SSA receives the evidence and the claimant did not submit the evidence within the period stated on the request for review form or within any extension of time the Appeals Council granted to submit evidence, the Appeals Council will not vacate its denial of the request for review. The Appeals Council will treat the evidence as a request for reopening and handle the case accordingly. See chapter > I-3-900.



HALLEX I-3-560

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: Denial of Request for Review

Chapter: I-3-500

June 30, 1994

Current through June 1997

I-3-560 EXPEDITED APPEALS PROCESS

Citations: > 20 CFR 404.923 - 404.928 and 416.1423 - 416.1428

A. General

The regulations provide for an expedited appeals process (EAP) in a case when the following conditions are met:

1. the individual has received a determination or decision at the reconsideration level or higher;

2. there is no dispute with the Secretary's findings of fact and application and interpretation of the controlling laws aside from a contention that a section of the applicable statute is unconstitutional; and

3. the individual pursues, as the sole remaining issue, a challenge to the constitutionality of a section of the pertinent statute which precludes favorable action on the claim.

B. Operating Procedures

1. Requests for EAP may be filed after a Request for Hearing is filed but before a hearing is held or hearing decision rendered. These requests are handled by the Office of the Chief Administrative Law Judge.

2. After the ALJ issues a hearing decision, there is no advantage in using the EAP because denial of a request for review would permit the claimant to file a civil action as quickly or more quickly than the EAP. However, if the EAP is requested after the issuance of a hearing decision, the request will be handled as follows:

a. Conditions for Use of EAP Met (> 20 CFR 404.924 and 416.1424).

Review the case carefully to ascertain whether the conditions for EAP are met. If so, treat the request as a request for review and draft a special denial letter using the following language:

On [date], you filed a request for the expedited appeals process under > 20 CFR 404.923 ff. and 416.1423 ff. of the Social Security Administration Regulations. The remaining step in the administrative appeals process is consideration by the Appeals Council, after which you may commence a civil action. Action by the Council would be faster in your case than the expedited appeals process. Therefore, the Council is treating your request filed [date] as a request for review of the Administrative Law Judge's decision.

This will eliminate the need for preparing the agreement required under > 20 CFR 404.926 and 416.1426 of the EAP provisions and will allow the claimant to commence a civil action immediately.

b. Conditions for Use of EAP Not Met

When the conditions for EAP are not met, the analyst will treat a request for EAP as a request for review and recommend action as appropriate. If denial is recommended, advise the claimant in the denial notice that the conditions for EAP are not met but that the claimant may file a civil action in any case. In other situations, the analyst may prepare a letter to the claimant denying the request for EAP and informing him or her that the request is being treated as a request for review or the analyst may include this information in the Appeals Council action document. Denial of the EAP is not appealable.



HALLEX I-3-570

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: Denial of Request for Review

Chapter: I-3-500

June 30, 1994

Current through June 1997

I-3-570 RECOMMENDATION TO DENY REQUEST FOR REVIEW OF ALJ'S DISMISSAL

Use forms HA-52 and HA-52A to recommend that the Appeals Council deny a request for review of an Administrative Law Judge's dismissal. The analyst's assessment or rationale must be on a separate sheet attached to the forms and must include:

1. A brief statement of the analyst's reasons for concluding that the dismissal was proper. The analyst must note any problem in the case or with the ALJ's order of dismissal (e.g., ALJ did not cite the correct determination which is the final determination of the Secretary).

2. The analyst will prepare a brief statement as to the merits of the case if the analyst believes the facts would have supported favorable action had the request for hearing (R/H) not been dismissed. The analyst will include a statement of the merits with the recommendation in cases when the Administrative Law Judge could have assumed jurisdiction (e.g., the claimant was denied on reconsideration and, although advised of the right to a hearing, the claimant did not timely file a R/H). By doing so, the Appeals Council will have the opportunity to determine whether to assume jurisdiction to correct a clearly erroneous reconsideration determination.

However, when the ALJ dismissed because the claimant had no right to a hearing (e.g., there had been no reconsideration, or the claimant was not a proper party, or the original action taken by SSA was not an initial determination as defined under > 20 CFR 404.902 and 416.1402), do not include a statement regarding the merits of the case.



HALLEX I-3-580

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: Denial of Request for Review

Chapter: I-3-500

June 30, 1994

Current through June 1997

I-3-580 ADDITIONAL EVIDENCE OR LEGAL ARGUMENTS OR CONTENTIONS

A. General

The paragraph(s) the analyst prepares for inclusion in the notice of denial of a request for review of an Administrative Law Judge's dismissal will depend upon the basis of the dismissal and the issue(s) to which the evidence or argument pertains.

1. Describe and discuss additional evidence or arguments which are received in connection with the request for review of a dismissal, and which relate to matters before the Appeals Council, in the denial notice. The analyst must explain the reason why the evidence or arguments do not change the dismissal action taken by the Administrative Law Judge or warrant granting review.

2. When the additional evidence or argument does not pertain to a matter before the Appeals Council, the analyst will prepare a referral paragraph to be included in the denial notice.

B. Additional Evidence or Argument Relates to Whether Dismissal is Proper

Evidence or arguments submitted with the request for review of a dismissal, which are relevant to matters before the Appeals Council in connection with a request for review, are those which relate to whether the dismissal action was proper, i.e., whether there is a basis for review and/or good cause for vacating a dismissal. The analyst will draft insert paragraphs to discuss the evidence or argument in the denial notice.

C. Additional Evidence--Dismissal Based on Res Judicata

Evidence submitted with the request for review may relate to the merits of the prior determination or decision which stands as the Secretary's final decision. After the Appeals Council denies the request for review, the Council generally refers this evidence to the Administrative Law Judge or appropriate SSA component which made the final determination or decision (unless the Appeals Council has jurisdiction) to consider whether reopening and revision is warranted. However, when the ALJ dismisses a R/H on the basis of res judicata, the ALJ has considered the matter of reopening and revision as part of the finding that res judicata was applicable. When the additional evidence received by the Appeals Council in connection with a request for review does not warrant reopening, the analyst must draft language for insert paragraphs explaining why the evidence does not constitute new facts, and does not preclude application of res judicata.

Example:

"In reaching this conclusion, the Appeals Council considered the report submitted from the Mooreboro Hospital concerning your December 1989 hospitalization and surgery for an intestinal obstruction. Although you may be severely impaired at present, there is no indication that this condition existed on or before March 31, 1984, when you last met the disability insured status requirements. Because this report is not material or relevant to the matters decided in the decision on your prior application, it does not change the facts upon which the decision was based."

D. Additional Evidence to be Referred to Administrative Law Judge or Other SSA Component--Dismissal Based on Other than Res Judicata

When additional evidence relates to the merits of the case and the ALJ dismissed the R/H for a reason other than res judicata, the Appeals Council will forward such evidence to the SSA component which made the prior final determination or decision to consider the reopening question (unless the Appeals Council has jurisdiction to consider the question of reopening and revision of a prior final decision). The analyst must include a paragraph to this effect in the denial notice (see stored paragraph (SP) No. 22 in 6-10-29 of the Appeals Text Guide.)

The analyst is responsible for assuring that Form HA-505 (Transmittal by Office of Hearings and Appeals) is prepared to route the evidence from the Appeals Council to the appropriate SSA component.

The following blocks must be checked on the HA-505: "Claim File"; "Decision or Order"; "Other".

Include the following under "Remarks":

"Additional evidence which was submitted with the claimant's request for review is being forwarded for your consideration to determine whether it warrants reopening and revision of your prior (decision) (action). Please notify the claimant of your action."

After the Appeals Council staff releases the denial notice and returns the claim file to the PRB, the PRB release clerk is responsible for stapling the HA-505, the additional evidence, and a copy of the Appeals Council's denial notice to the front of the claim file and forwarding it to the appropriate SSA component. Forward legal arguments or contentions relating to the merits of the case in the same manner as additional evidence, as described above, if a response is required. Any question as to whether a response is required should be resolved in favor of referring the arguments or contentions. The analyst must modify the remarks on the HA-505 as appropriate to show that a brief or other statements are being referred.



HALLEX I-3-582

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: Denial of Request for Review

Chapter: I-3-500

November 11, 1994

Current through June 1997

I-3-582 SOCIAL SECURITY RULINGS AND ACQUIESCENCE RULINGS

A. Social Security Rulings (SSRs)

SSRs are published under the authority of the Commissioner of Social Security. They make available to the public a series of precedential decisions relating to Federal old-age, survivors, disability, supplemental security income, and black lung programs. SSRs may be based on case decisions made at all administrative levels of adjudication, Federal court decisions, Commissioner's decisions, Office of the General Counsel opinions, and other policy interpretations of the law and regulations. SSRs are first published in the Federal Register. SSRs are effective upon publication, and the effective date is shown on the first page of each SSR. Although SSRs do not have the force and effect of the law and regulations, they are binding on all SSA components and are to be relied upon as precedents in adjudicating other cases (20 CFR 422.406(b)(1)). An SSR may be superseded, modified, or revoked by later legislation, regulations, court decisions, or rulings.

B. Social Security Acquiescence Rulings (ARs)

ARs are published under the authority of the Commissioner of Social Security. They are first published in the Federal Register and are effective upon publication. The effective date is shown on the first page of each AR.

ARs explain how SSA will apply United States Court of Appeals (circuit court) holdings which conflict with SSA's interpretation of a provision of the Social Security Act or regulations. SSA will apply the circuit court holding as explained in the AR to other cases in the same circuit where the issues involved are the same.

The regulations setting forth the Secretary's acquiescence policy and procedures (> 20 CFR 404.985 and > 416.1485) provide that claimants who receive determinations or decisions during the period of time between the date an adverse circuit court decision is issued and the date SSA publishes an AR in the Federal Register have the right, under the readjudication procedures provided in the regulations, to request application of the published ruling to the determination or decision in his or her case. The individual must first demonstrate that application of the ruling could change the prior determination or decision.

When a claimant or representative claims that a circuit court holding applies to the facts in the claimant's case, the Appeals Council must first determine whether an AR has been published, and then take the following actions:

1. AR Has Been Published

If an AR has been published, the Appeals Council must apply the ruling.

2. AR Has Not Been Published

If an AR has not been published, the Appeals Council must determine whether publication of an AR is under active consideration.

a. Publication of an AR Is Not Under Active Consideration

If an AR has not been published, and publication is not under active consideration, the Appeals Council will use the following or similar language to explain why the court's decision does not apply:

(The claimant/The claimant's representative) has stated that the _______ Circuit's recent decision in ______ v. _____ should be applied in this case and requires a finding that ________________. Pursuant to the regulations (> 20 CFR () 404.985 and/or 416.1485), if SSA determines that a circuit court holding conflicts with SSA's interpretation of a provision of the Social Security Act or regulations and the Government does not seek further review or is unsuccessful on further review, SSA will issue a Social Security Acquiescence Ruling (AR). If SSA has not issued an AR, it will apply its interpretation of the law and regulations.

SSA has not published an AR in ________. Accordingly, SSA's interpretation of the law and regulations applies.

b. Publication of an AR Is Under Active Consideration

If an AR has not been published, but publication is under active consideration, the Appeals Council will substitute the following or similar language for the language in the second paragraph in section a., above, to inform the claimant of his or her rights in the event that an AR is published later:

SSA has not published an AR in __________________. Accordingly, SSA's interpretation of the law and regulations applies.

ARs are generally effective on the date of publication in the Federal Register, and will apply to all determinations and decisions made by SSA within the same circuit on or after that date. If SSA publishes an AR at some future date, pursuant to > 20 CFR [] 404.985 [and/or] 416.1485, the claimant may request application of the published ruling to this case under the readjudication procedures provided in the regulations. The claimant must first demonstrate that application of the published ruling could change the decision.


NOTE: The Appeals Council should not delay its action(s) in a case to await publication of an AR unless the Division of Litigation Analysis and Implementation (DLAI) confirms that an AR will be published within a reasonably short period, e.g., SSA has sent the final AR to the Federal Register for printing and publication is expected within a week.

EXCEPTION: The above procedures do not apply to the claims of New York disability claimants who are covered by the court-approved settlement in Steiberger v. Sullivan. [See the June 19, 1992 negotiated settlement (as modified on July 29, 1992); the court-approved Manual of Second Circuit Disability Decisions; the July 2, 1992 teletype from the Director, Litigation Staff, Office of the Deputy Commissioner for Programs; and the Circuit Court Case Reporter (Volume II, Part 1 of HALLEX).]



HALLEX I-3-585

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: Denial of Request for Review

Chapter: I-3-500

November 11, 1994

Current through June 1997

I-3-585 NOTICE OF DENIAL -- ALJ DISMISSED IN PART

1. An Administrative Law Judge may find that res judicata applies to some, but not all, issues in a case. In this instance, the Administrative Law Judge will issue a decision which dismisses the appropriate issues and disposes of the other issues in the usual manner.

2. If the Appeals Council denies the request for review of a combined decision/dismissal, notice of the Appeals Council's action must make it clear which issues are subject to court review and which are not. Standardized denial notices for this situation are contained in 6-10-30A to 6-10-32B of the Appeals Text Guide.



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