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HALLEX I-3-800

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-800 TABLE OF CONTENTS

> I-3-801 General

> I-3-802 Scope of Decision

> I-3-803 Content of an Appeals Council Decision

> I-3-804 Appending PRTF to Decision--Mental Impairment

> I-3-805 Decisional Language Which Might be Detrimental to the Claimant's Health

> I-3-806 Use of Medical Analysis in Appeals Council Decision

> I-3-811 Preparation of Decision

> I-3-812 Guidelines for Rationale in Title II and Title XVI Initial Entitlement Decisions

> I-3-813 Typing and Proofreading

> I-3-820 Administrative Appeals Judge's Actions

> I-3-821 Release of Decision

> I-3-822 Release of Files--Fully or Partially Favorable Decision

> I-3-823 Release of Files--Separating Concurrent Files

> I-3-824 Release of Files--Unfavorable Decision

> I-3-830 Effect of Appeals Council Decision

> I-3-840 Decision Returned Unclaimed

> I-3-850 Recommending Appeals Council Decision as a Social Security Ruling



HALLEX I-3-801

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-801 GENERAL

Citations: > 20 CFR 404.967, 404.969, 404.970, 404.979, 404.981, 410.695, 410.697, 416.1467, 416.1469, 416.1470, 416.1479, and 416.1481 > 42 CFR 498.88 and 498.90

When the Appeals Council makes its decision, the Council will consider all the evidence of record and any additional evidence it received, subject to the regulatory limitations on considering additional evidence as defined in > 20 CFR 416.1470(b), and > 416.1476(b). The Appeals Council may affirm, modify or reverse an ALJ decision or it may adopt, modify or reject a recommended decision. See section > I-3-106 for a discussion of ALJ recommended decisions.

An Appeals Council decision must be legally sufficient and defensible. To accomplish this, the rationale must support the ultimate conclusion and fully explain why the Appeals Council reached its conclusion.

The primary audience for a decision is the claimant. Therefore, the analyst should use language that the claimant can understand, whether or not the claimant has a representative.

At least two Administrative Appeals Judges (AAJs) of the Appeals Council must sign a decision. The Appeals Council will mail a copy of its decision to all parties at their last known address.



HALLEX I-3-802

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-802 SCOPE OF DECISION

The primary purpose of the Appeals Council decision is to dispose of all issues. If the ALJ did not consider all elements of eligibility or entitlement or if new material facts come to the Appeals Council's attention, the scope of the Appeals Council's decision may extend beyond the scope of the ALJ's decision.



HALLEX I-3-803

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-803 CONTENT OF AN APPEALS COUNCIL DECISION (REVISED 04/93)

Appeals Council decisions have four basic parts.

The first part sets out why the case is before the Appeals Council; that is, the procedural history of the case. This provides jurisdiction, the issue(s) to be resolved, and the ultimate conclusion on the case. The decision must state the issues as specifically as possible. After setting forth the issue(s), the Appeals Council will state its ultimate conclusion because this is the reader's primary interest. Stating the ultimate conclusion in the opening section focuses the reader's attention on the rationale section which follows.

The second part contains the rationale for the decision. In the rationale, the Appeals Council must:

-- Discuss and resolve each issue in the case. See section > I-3-812 for more specific guidelines when writing the rationale in a disability case.

-- Discuss the weight it assigned to evidence in resolving conflicts in the record, stating which evidence is more persuasive and why.

-- Address subjective complaints and assess credibility when they are factors in the decision.

-- Cite the applicable sections of the statute and regulations, Social Security Rulings, and, as necessary, circuit court law.

-- In all favorable title XVI disability decisions involving drug addiction and alcoholism (DA/A), provide complete supporting rationale as to whether DA/A is a contributing factor material to the finding of disability. If the Appeals Council finds that DA/A is a contributing factor material to the finding of disability, the rationale paragraph must state that the claimant is a medically determined drug addict or alcoholic pursuant to > 20 CFR 416.935. (See SSR > 82-60, Titles II and XVI: Evaluation of Drug Addiction and Alcoholism.)

The third part consists of the findings, which are usually reflected as a list of numbered statements of about one sentence each. The list of findings forms a brief summary of the issues which have been resolved and thoroughly explained in the rationale (second part) of the decision. In all favorable title XVI disability decisions involving DA/A as a contributing factor material to the finding of disability, the Appeals Council must make a specific enumerated finding to that effect, stating that the claimant is a medically determined drug addict or alcoholic pursuant to > 20 CFR 416.935.

The fourth part is the decisional paragraph. The decisional paragraph must contain a summary of the ultimate conclusion, reference to the appropriate sections of the Social Security Act and sufficient information for other components of SSA to effectuate the decision. In title II disability cases the decisional paragraph must also reflect the date when the claimant's period of disability commenced. In all favorable title XVI disability decisions involving DA/A, if the Appeals Council finds that DA/A is a contributing factor material to the finding of disability, the DA/A decisional paragraph that deals with treatment and representative payee provisions must be included (see Appeals Text Guide 6-40-11).



HALLEX I-3-804

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-804 APPENDING PRTF TO DECISION--MENTAL IMPAIRMENT

When the Appeals Council issues a decision in a mental impairment case, the "A" and "B" AAJs must sign the Psychiatric Review Technique Form (PRTF). The Appeals Council appends the PRTF to the decision. Although it supplements and explains the decision, the rationale and findings must explain and support the Council's decision.



HALLEX I-3-805

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-805 DECISIONAL LANGUAGE WHICH MIGHT BE DETRIMENTAL TO THE CLAIMANT'S HEALTH

Analysts should give special attention to writing decisions in cases which contain evidence with language potentially detrimental to the claimant's health; e.g., when the claimant has a terminal illness or a mental impairment.

If it appears that disclosure or discussion of the claimant's condition could be detrimental or injurious to a represented claimant's health, the Appeals Council may send a copy of the decision to the representative and not send a copy to the claimant. In this situation, the Council will inform the claimant that it has sent a copy of the decision to the representative. The Council will advise the representative to exercise discretion in deciding whether to show the claimant the decision or, in the alternative, to notify the claimant of the general content of the decision.

When the claimant is unrepresented, the Appeals Council will ensure that the decision does not contain language which could be detrimental to the claimant's health.



HALLEX I-3-806

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-806 USE OF MEDICAL ANALYSIS IN APPEALS COUNCIL DECISION

When the Appeals Council relies on Medical Support Staff (MSS) comments to make a decision, the Appeals Council must enter the MSS analysis into the record as an exhibit. In such a case, the MSS analysis is a statement of medical equivalence by a physician designated by the Secretary. If the decision is less than fully favorable, the Appeals Council must proffer the MSS report to the claimant or representative for comment before entering it into the record.

When the Appeals Council obtains an MSS opinion but does not rely on it to reach its decision, the Council does not make the MSS analysis a part of the record. The opinion is then considered to be a staff analysis and is retained in the appeals file.



HALLEX I-3-811

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-811 PREPARATION OF DECISION

Refer to chapter 6-40 of the Appeals Text Guide for decisional shells, sets of enumerated findings, and stored paragraphs. Complete or modify them as necessary to properly reflect the facts of each individual case.



HALLEX I-3-812

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-812 GUIDELINES FOR RATIONALE IN TITLE II AND TITLE XVI INITIAL ENTITLEMENT DECISIONS (REVISED 04/93)

A. General

Initial claims for disability under the Social Security Act are evaluated following a sequence set forth in > 20 CFR 404.1520 and 416.920. The purpose of this section is to provide a basic checklist of issues that arise in an initial disability case and to illustrate how these issues form the essential building blocks of the decision. As each issue is resolved, another arises, until eventually the ultimate issue is reached. A conclusion on the ultimate issue of disability at any step of the sequential evaluation will be defensible only if all of the subsidiary issues are resolved.

B. Sequential Evaluation in Initial Disability Decision

1. Step 1--Substantial Gainful Activity

Very few cases which reach the hearing level contain clear and convincing evidence that the claimant is engaging in substantial gainful activity. To determine whether a claimant is engaging in substantial gainful activity, address and resolve such issues as:

-- the amount of earnings;

-- impairment-related work expenses; and

-- work performed in a sheltered environment.

2. Step 2--Severe Impairment

At step two, determining whether a severe impairment exists requires an analysis of:

-- the diagnosis or diagnoses;

-- the limitations alleged;

-- the limitations established; and

-- whether the diagnosed impairment(s) significantly limits the claimant's ability to perform basic work activities.

If the evidence clearly establishes a severe impairment, a detailed rationale or analysis of the medical findings at this point is not necessary. However, a finding of "no severe impairment" represents a decision on the ultimate issue of disability. In that case, the objective medical evidence as well as any opinion evidence and subjective complaints must be analyzed and any conflicts in the evidence resolved. In doing so, the decision must clearly discuss:

-- the evidence (documentary or oral testimony) which supports the ultimate conclusion of "not severe;"

-- any conflicting evidence and its probative weight; and

-- any opinions, especially from a treating source about the severity or nature of any limitations, and their probative value.

3. Step 3--Meet or Equal Listings

At step three, decisions stating that a listing is not met or equalled must provide rationale regarding:

-- the listing(s) being considered; and

-- why the claimant's impairment(s) does or does not meet or equal the requirements of the listing.

If a medical expert testified at the hearing, this testimony must be cited.

4. Step 4--Past Relevant Work

The first critical issue at step 4 is the determination of residual functional capacity (RFC). Some consideration of limit(s) on function was implicit at step two in deciding severity, but the record must now undergo more rigorous analysis. The decision must refer to specific exhibits or testimony and discuss:

-- the established impairment(s);

-- the alleged impairments which cannot be established by the objective medical evidence;

-- the functional limitations of the impairment(s) and what medical findings support that determination;

-- conflicts in the record which must be resolved with specific reasons given for rejecting or giving little weight to opinions and diagnoses from treating sources;

-- any subjective testimony about limitations and the extent to which it is credible;

-- the physical and mental abilities of the claimant considering all factors, including limitations resulting from impairments which in themselves are not considered severe; and

-- any other nonexertional limitations.

The resulting RFC, expressed in terms of specific retained capacities, must then be compared to the specific requirements, both exertional and nonexertional, of the claimant's past relevant work.

Whether work performed in the past is relevant may be a major issue in itself. A decision must address:

-- the duration of the past work experience;

-- when the work was last performed; and

-- whether or not the job requirements and skills are relatively unchanged.

5. Step 5--Other Work

If the claimant is unable to perform past relevant work, other vocational issues become paramount. Some, such as age and education, may be easily resolved. However, in determining the level of skills the claimant may have or whether they are transferable, expert testimony may have been necessary. Expert testimony may also have been needed to elicit evidence on the availability of jobs. At this point the decision should have resolved all of the medical issues so that the remaining step involves a comparison of the RFC and vocational profile with the rules in Appendix 2 to Subpart P. A decision on the ultimate issue at step five must cite the evidence and carefully discuss:

-- what skills, if any, the claimant acquired from past work experience;

-- whether or not any skills are transferable to other work;

-- the range of work at any exertional level which is suitable for the claimant; and

-- whether a significant number of jobs are available within the suitable range of work.


NOTE: When a title II and/or title XVI disability issue case is decided at the fifth, and final step of the sequential evaluation process, include the following statement, or an equivalent statement, explicitly acknowledging that the burden of showing that the claimant can perform other work shifts to the Secretary:

Once a claimant has established that he or she has no past relevant work or cannot perform his or her past relevant work because of his or her impairments, the burden shifts to the Secretary to show that there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with his or her medically determinable impairments, functional limitations, age, education and work experience.

Acknowledgement of the shifting burden is addressed in Appeals Council Interpretation (ACI) > II-5-303.

This list of issues is not exhaustive; rather it provides a basic checklist of issues to be addressed. Also, the list illustrates the basic point of decision writing--that each decision on the ultimate issue requires the resolution of subsidiary issues if it is to be supported and withstand judicial scrutiny. Analysts must consult and cite any statute, regulation, Social Security Ruling, Acquiescence Ruling or circuit court law which provides more comprehensive coverage of issues and how they are to be resolved.

The analyst must ensure that those issues which have been significant to the appropriate circuit court on appeal are properly handled (see > I-3-307). If the case involves one of these issues, the decisional rationale must demonstrate that the Appeals Council has properly considered the issue according to circuit law. The Council will include the excerpt from the circuit court decision as it appears in the reference list (see > I-3-390, Exhibit 1).

C. Cases Involving Drug Addiction and/or Alcoholism

In all favorable title XVI disability decisions involving DA/A, the Appeals Council must provide complete supporting rationale as to whether DA/A is a contributing factor material to the finding of disability (see section > I-3-803).

D. Other Types of Cases

Cases other than initial disability claims, such as continuing disability review, health insurance claims and retirement and survivors claims, present a different set of subsidiary and ultimate issues. However, the basic principles of decision writing are equally applicable. The issues are identified and form the outline of the decision. The evidence and applicable law and regulations are then used to resolve each issue until an ultimate conclusion is reached.



HALLEX I-3-813

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-813 TYPING AND PROOFREADING (REVISED 9/92)

A. Forward the case for typing.

B. Proofread the typed material. If it is completely accurate, forward the file with the decision (and initial or supplemental analysis, when appropriate) to the Appeals Council.

C. If the claimant has requested correspondence in Spanish or the file indicates there is a need to communicate with the claimant in Spanish, the analyst must annotate the route slip to advise the appeals technician to send a Spanish language translation of Form HA-L6-U6 or HA-L61-U6 with the English version.

D. If the claimant resides in a foreign country, the analyst must annotate the route slip to advise the appeals technician to modify the covering letter regarding where a civil action may be filed.

1. The route slip should state that the claimant resides in a foreign country and whether or not the claimant has a principal place of business within a judicial district of the United States.

2. Residents of Puerto Rico, Guam, the Northern Mariana Islands and the Virgin Islands are considered United States residents.



HALLEX I-3-820

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-820 APPEALS COUNCIL ADMINISTRATIVE APPEALS JUDGE'S ACTIONS

The AAJ will review the proposed decision and the initial or supplemental analysis. The AAJ may return the case to the analyst for further analysis, revision, or to prepare a different action. If the AAJ approves the recommendation, the AAJ will sign the decision and forward the case to the "B" AAJ for consideration.



HALLEX I-3-821

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-821 RELEASE OF DECISION

Following approval and signature by the two AAJs, the appeals technician will mail copies of the decision with covering notice to the claimant and representative.



HALLEX I-3-822

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-822 RELEASE OF FILES--FULLY OR PARTIALLY FAVORABLE DECISION (REVISED 09/92)

A. The Appeals Council support staff will forward the claim file and decision for effectuation. Refer to > I-4-399, Exhibit CC for destination codes and addresses.

B. If concurrent titles II and XVI claims are involved, the analyst must ensure that separate files are prepared and contain the material needed for each claim. (See > I-3-823, Release of Files--Separating Concurrent Files.)

In addition, if the claimant has filed concurrent titles II and XVI claims; the claimant lives in Delaware, New Jersey, Pennsylvania, or the Virgin Islands; and the Appeals Council decision is favorable, annotate "Mazza Case" in the remarks section of the HA-505 transmittal. See Acquiescence Ruling > 92-1(3), Mazza v. Secretary of Health and Human Services.

C. If the claimant has a representative, the appeals technician will enclose Form SSA-1560-U4, "Petition to Obtain Approval of a Fee for Representing a Claimant Before the Social Security Administration," with the representative's copies of the transmittal letter and decision, unless there is an approved fee agreement in file. (See Temporary Instruction No. 5-109, section VI, Appeals Council Procedures--Fee Agreement.)

D. If the claimant is represented, the analyst must annotate the route slip to advise the appeals technician to forward the appeals file to the Attorney Fee Branch after release of the Appeals Council decision. The appeals file must contain:

1. a copy of the Appeals Council decision;

2. a copy of the ALJ's decision;

3. OAO's recommendation (original);

4. Medical Support Staff comments (original);

5. Administrative Appeals Judge comments (original);

6. copies of Appeals Council level correspondence to the claimant or representative; and

7. copies of Appeals Council level correspondence regarding development.



HALLEX I-3-824

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-824 RELEASE OF FILES--UNFAVORABLE DECISION

The Appeals Council support staff will return the claim and appeals files to the branch mini-docket where they will be held for the scheduled retention period.



HALLEX I-3-830

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-830 EFFECT OF APPEALS COUNCIL DECISION

The Appeals Council's decision is binding on all parties unless it is reversed or modified as the result of a civil action filed within the prescribed 60-day period (or any extension thereof) or unless it is reopened and revised.



HALLEX I-3-840

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-840 DECISION RETURNED UNCLAIMED

When a claimant's copy of the Appeals Council decision is returned "unclaimed" or "undeliverable," follow the procedures in section > I-3-541.



HALLEX I-3-850

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: Appeals Council Decisions

Chapter: I-3-800

June 30, 1994

Current through June 1997

I-3-850 RECOMMENDING APPEALS COUNCIL DECISION AS A SOCIAL SECURITY RULING

A. Analysts as well as AAJs are encouraged to identify Appeals Council decisions for consideration as potential rulings. The decision must be well reasoned and well written, and have value as a precedent or explain the application of existing policy in a thoughtful, informative way.

B. If an Appeals Council decision is to be submitted as a potential ruling, after expiration of the appeals period the analyst must forward copies of the ALJ and Appeals Council decisions through the branch chief, Assistant Deputy Director, Deputy Director for Operations, and Deputy Chair of the Appeals Council, to the Division of Policy, Planning and Evaluation via a route slip with a memorandum explaining briefly why the decision should be considered as a ruling.

C. An AAJ may send the case to the analyst to take the actions described in B. above or may refer the decision directly to the Deputy Chair.



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