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  • HALLEX - Severe.net
    No Party Wishes to Continue the Appeal Complete Form 4572 and explain in narrative form why it appears the claimant understands the effect of the request Prepare an Appeals Council Dismissal Order See Appeals Text Guide 6 80 40 HALLEX I 3 404 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 Dismissals Chapter I 3 400 June 30 1994 Current through June 1997 I 3 404 PARTY WHO REQUESTED REVIEW DIES A General The Appeals Council may dismiss a request for review if the party who files the request dies and certain other conditions are met B Operating Procedure 1 Title II Title XVIII and Black Lung The Appeals Council may dismiss a request for review if the party who filed the request dies while the request is pending and the Council has no information to show that another person may be adversely affected by the ALJ decision or dismissal The Appeals Council will not dismiss the request for review if a substitute party shows that he or she may be adversely affected by the ALJ decision 2 Title XVI a Dismissal Rules The Appeals Council may dismiss a request for review when the supplemental security income SSI applicant or recipient dies if there is no eligible spouse there is no other surviving spouse or parent who could receive an underpayment and who wishes to pursue the request and the applicant or recipient did not authorize interim assistance reimbursement IAR to a State pursuant to section 1631 g of the Act b Substitute Party An eligible spouse or other surviving spouse or parent who shows that he or she may potentially qualify to receive an underpayment due the deceased applicant or recipient may pursue the request as a substitute party See section 1631 b of the Act regarding who may qualify to receive an underpayment c Interim Assistance Reimbursement IAR Authorization A State or a political subdivision may not pursue the claim of a deceased applicant or recipient as a substitute party However even if there is no qualified substitute party the Appeals Council may not dismiss a request for review if there is an IAR authorization in effect but will either grant or deny the request for review d Medicaid Determinations After Death Medicaid eligibility determinations often flow from SSI eligibility determinations When the Social Security Administration is not required to issue an SSI eligibility determination or decision Medicaid determinations appeals and payments are the responsibility of the State Even if there are unpaid medical expenses the Appeals Council will dismiss a request for review if there is no information showing the existence of a person who may pursue the SSI claim as a substitute party and there is no IAR in effect If a survivor who is not a qualified substitute party as specified above wishes to pursue Medicaid eligibility the survivor must contact the appropriate agency of the State which administers the Medicaid program C Preparing Recommendation to the Appeals Council 1 A Proper Substitute Party Wishes to Continue the Appeal or IAR Was In Effect Consider the case on its merits See Chapter I 3 100 Workup of Case by Analyst 2 No Proper Substitute Party Wishes to Continue the Appeal and NO IAR Was In Effect Complete forms HA 52 and HA 52A Explain in narrative form that there is no adversely affected individual title II XVIII and black lung For title XVI cases explain in narrative form that there is no party who could qualify to receive an underpayment and no indication of an IAR agreement in effect Prepare an Appeals Council Dismissal Order See Appeals Text Guide 6 80 42 to 6 80 44 3 Substitute Party Development If the analyst learns that the party who filed a request for review has died and cannot determine either from the notice of death or from any information in the claim file whether there is a substitute party the analyst will contact the representative if any for information on possible substitute parties or if there is no representative prepare a memo to the servicing field office and a draft appointment form see Appeals Text Guide 6 90 23 and 6 90 24 COR 23 and COR 24 HALLEX I 3 405 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 Dismissals Chapter I 3 400 June 30 1994 Current through June 1997 I 3 405 NO RIGHT TO REQUEST REVIEW A General The Appeals Council may dismiss when a request for review is filed by a person who is not a proper party a request for review is filed before a hearing decision dismissal is issued a request for review form is erroneously prepared and when the issue raised is unappealable B Operating Procedure 1 No Proper Party The Appeals Council may dismiss a request for review if the individual filing the request is not a proper party or does not otherwise have a right to request review In most cases a proper party is the person who received the hearing decision or dismissal however persons whose rights may be adversely affected by a decision may be parties to the case and thus have the right to file a request for review 20 CFR 404 932 and 416 1432 Also the following persons may file a request for review on behalf of a party a duly appointed representative of a person who has a right to request review an individual who may file an application for and pursue a claim on behalf of a minor child a mentally incompetent individual or one who is physically unable to sign his or her own request Note that a minor child or a person who is mentally incapable of filing on his or her own behalf is a party to the

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  • HALLEX - Severe.net
    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

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  • HALLEX - Severe.net
    the appearance and the files to the office of the AAJ serving as chair of the panel The panel chair s appeals technician will prepare and send a letter to the claimant and representative advising them of the date time and place set for the appearance The Appeals Council will send the notification at least 20 days before the date of the scheduled appearance The appeals technician will then return the case to the appropriate branch which will establish a diary for call up 13 days prior to the scheduled date of the appearance unless special circumstances require otherwise 5 Responsibilities and Actions of the Analyst and Appeals Technician Before the Appearance Additional Evidence Received If the claimant or representative submits additional evidence after the Appeals Council has scheduled an appearance the analyst will prepare a memorandum to the panel chair summarizing this evidence and updating the prior analysis of the case The analyst will hand carry the memorandum and the case to the panel chair with prominent notation Appearance Set Date in red at the top of the memorandum No Additional Evidence Received The analyst will return the case to the panel chair 12 calendar days before the appearance date with copies of all case analyses and memoranda for each AAJ of the panel The analyst will also prepare a list with a copy for each AAJ of the panel the individual who will record the proceedings and the claimant or representative identifying any new documentary evidence to be admitted including any new evidence submitted by the claimant or representative after the issuance of the ALJ s decision The panel chair s appeals technician will distribute these materials to the designated AAJs of the appearance panel The panel AAJs will advise the analyst whether to attend the appearance 6 Conduct of the Proceedings in Which the Party Appears to Present Oral Arguments Before the Appeals Council The panel chair receives relevant evidence into the record and takes the lead in questioning The other AAJs may ask questions as they desire The claimant or the representative may argue the merits of the case The recorder makes a record of the proceedings The panel will decide whether to prepare a transcript After the appearance the panel will reach a conclusion Concurrence of a majority of the panel will constitute the Appeals Council decision The agreeing panel AAJs present at the appearance must sign the decision The name of an AAJ who does not agree with the panel s action will not appear on the decision B Cases that Affect Participation in the Medicare Program 42 CFR 498 1 General Health Insurance HI cases involving participation in the Medicare program have several unique features which distinguish them from other types of cases The appeals are adversarial in nature with party status afforded to the practitioner supplier or facility as well as either the Health Care Financing Administration or the Office of the Inspector General Also pursuant to 42 CFR 498 83 the Appeals Council must grant a request for review filed by the affected party When the Appeals Council grants a request for review the Council advises the parties that they may request an appearance before the Appeals Council to present evidence or oral argument If one or both of the parties request an appearance the Appeals Council will schedule the appearance 2 Composition of Appeals Council Panel The regulations require that if the Appeals Council grants a request for review in a case involving program participation the review will be conducted by a panel of at least two AAJs of the Council as well as an ad hoc Member from the U S Public Health Service 42 CFR 498 83 d The three AAJs of the panel stand as equals in the deliberations and decision 3 Procedures The following procedures apply to consideration of a case involving program participation a The HI analyst will simultaneously forward copies of all analyses to each AAJ of the panel b The analyst must invite each panel AAJ to any discussions involving substantive matters As the ad hoc Member is not located at OHA Headquarters the ad hoc Member may choose to be informed of such deliberations by telephone or written report and offer comments or suggestions afterward c All requests for an analyst to attend a meeting should be directed through the HI branch chief 4 Appearance The procedures regarding an appearance in a case involving participation in the Medicare program are essentially the same as in all other cases See I 3 603 A HALLEX I 3 650 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 Grant Review and Own Motion Chapter I 3 600 November 15 1994 Current through June 1997 I 3 650 OWN MOTION REVIEW GENERAL Citations 20 CFR 404 969 416 1469 42 CFR 405 701 and 405 724 A General The Appeals Council may review an ALJ s decision or order of dismissal on its own motion within 60 days after the date of notice of the ALJ s action The Council may review a decision on its own motion for the same reasons it may grant a request for review See I 3 301 ff The Council will not ordinarily review a case on its own motion when the end result would remain unchanged unless there is a compelling reason to do so B Cases Considered for Own Motion Review The Appeals Council considers for own motion review a random sample of unappealed title II disability decisions and dismissals and decisions referred by effectuating components The Office of Disability and International Operations refers a national random sample of favorable ALJ title II disability decisions to OAO After analyzing the case an analyst may approve effectuation of the decision or refer the case to the Appeals Council recommending own motion review OHA also selects a random sample of unappealed affirmations and

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    the period at issue that is likely to affect ability to function B Consultative Examinations CEs and Medical Tests The analyst should recommend a remand to obtain a CE s and or medical test s when additional evidence is necessary to establish the nature severity and or duration of the claimant s impairment s and such evidence does not appear to be available from the claimant s medical sources See Appeals Text Guide 6 20 20 to 6 20 23 and stored paragraph from section 6 20 29 as appropriate Examples 1 The onset of disability occurred less than 12 months ago and the impairment could prevent the claimant from engaging in SGA for at least 12 months but there is no prognosis by an examining physician 2 The evidence indicates a significant psychiatric impairment but the claimant s medical sources could not provide data on the effect of the impairment on the claimant s ability to function in a work setting C Medical Development M Attachments If a case is referred to the Medical Support Staff MSS and the MSS identifies specific additional tests or studies to request they will revise the standard M attachment accordingly and sign the form Place this form in the claims file to assist the ALJ in requesting the development The MSS will not include analysis or judgments on the form The analyst should annotate the route slip Form HA 505 as follows Please see the revised M attachment for additional tests recommended by our MSS Note that MSS narrative comments are advisory in nature and for the use of the Appeals Council only Do not prepare them for formal entry into the record and do not send them to the ALJ Do not refer to the MSS narrative comments in the remand order unless the Council requests it D Limits on Specific CE Requests In most circumstances the Appeals Council s remand order does not direct that a particular type of specialist perform a consultative examination or that a particular medical diagnostic test be performed because the desired specialist or test may not be available in the hearing office s service area Remand orders requiring consultative examinations or tests should describe the purpose of the examination test not the specific sub specialties or diagnostic tests If there is some compelling reason for such instructions qualify the order by specifically stating if available or if possible If directing an ALJ to obtain a CE or test request only that development essential to a proper decision on the claim e g do not order a complete CE if the only development needed is X rays NOTE Do not direct the ALJ to obtain diagnostic tests or procedures that involve significant risk to the claimant such as myelograms arteriograms or cardiac catheterizations Similarly avoid instructing the ALJ to obtain a consultative psychiatric examination which would limit the ALJ s flexibility to obtain a mental status examination by a psychologist in areas where there is a scarcity of psychiatrists see SP 23 and SP 24 in section 6 20 29 of the Appeals Text Guide HALLEX I 3 712 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 Remands Chapter I 3 700 June 30 1994 Current through June 1997 I 3 712 REMAND FOR MEDICAL EXPERT TESTIMONY Citations 20 CFR 404 1525 and 404 1526 416 925 and 416 926 The Appeals Council may remand a case to an ALJ when it determines that the testimony of a Medical Expert ME is necessary to decide the case ME testimony may help the ALJ resolve conflicts in the medical evidence of record or determine the significance of clinical or laboratory findings Hearing offices maintain a roster of MEs physicians and psychologists who are available to provide impartial expert advice or medical opinion at an ALJ s request Under the concept of medical equivalence a physician designated by the Secretary is required to decide whether the medical findings of an individual s impairment s although not specifically described by any listed set of medical criteria in the Listing of Impairments are at least medically equal to one of the listed sets As appropriate the ALJ or Appeals Council will solicit the judgment of an ME to determine whether the medical findings symptoms signs and laboratory findings are of at least equivalent clinical significance to the findings required for a listed impairment Testimony of an ME may also be necessary to assess the claimant s functional limitations in determining equivalence The Appeals Council may remand a case to obtain medical expert testimony alone or in conjunction with other necessary development The Appeals Council may also remand a case for medical expert testimony if in response to proffer of MSS comments the claimant or representative requests to cross examine the MSS physician and demonstrates that written interrogatories will not suffice HALLEX I 3 713 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 Remands Chapter I 3 700 June 30 1994 Current through June 1997 I 3 713 REMAND FOR VOCATIONAL EVIDENCE In disability cases the Appeals Council may remand to obtain vocational evidence including the testimony of a Vocational Expert VE at a hearing VE testimony or other vocational evidence may be necessary with respect to issues such as how a particular job is usually performed whether the claimant acquired any skills in past relevant work and if so whether the claimant can use such skills in a significant number of skilled or semi skilled occupations which the claimant has the residual functional capacity to perform based upon hypothetical situations the ALJ describes what jobs the claimant can perform the incidence in the national economy of such jobs and whether for individuals age 55 or over such jobs require any vocational adjustment whether limitations and restrictions resulting from the claimant s exertional or nonexertional impairment s substantially diminish the occupational base administratively noticed in Appendix 2 to Subpart P whether the claimant s remaining occupational base represents a significant number of jobs in the national economy and whether the claimant can perform a significant number of jobs administratively noticed in Appendix 2 to Subpart P HALLEX I 3 714 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 Remands Chapter I 3 700 June 30 1994 Current through June 1997 I 3 714 REMAND FOR OTHER REASONS The Appeals Council may remand for other reasons such as A Work Activity The Appeals Council may remand to develop work activity and determine whether the claimant engaged in SGA during the period he or she was found under a disability See Appeals Text Guide 6 20 40 B Waiver of Recovery of Overpayment The Appeals Council may remand to develop the issue of waiver of recovery of an overpayment when the issue was properly before the ALJ but was not resolved and the evidence is insufficient for the Appeals Council to resolve the issue C Insured Status The Appeals Council may remand to develop the issue of insured status See Appeals Text Guide 6 20 41 See I 3 114 regarding referral of cases to the Retirement and Survivors Staff when there is an earnings discrepancy which may affect insured status or the special disability insured status requirements are not met at any time D Circuit Law The Appeals Council may remand a case for compliance with circuit law See I 3 390 Exhibit 1 and the OHA Circuit Court Case Reporter HALLEX Part 1 of Vol II E State Plan The Appeals Council may remand a case for consideration of cessation of disability under a State plan in title XVI cases See Appeals Text Guide 6 20 42 F Lost or Inaudible Hearing Cassette When the Appeals Council is considering a request for review and finds that a hearing cassette is lost or inaudible it will grant the request for review and remand the case for another hearing The remand order will reflect any other reason s for remanding the case in addition to the issue of the lost or inaudible cassette EXCEPTION If the Appeals Council is prepared to issue a fully favorable decision it may do so rather than remand the case for another hearing G Claimant Objects to Decision Issued by ALJ Who Did Not Conduct the Hearing When the ALJ who conducted the hearing is unable to issue the decision because he or she leaves the Department of Health and Human Services dies etc another ALJ may issue the decision Refer to chapter I 2 840 for further discussion of when an ALJ who did not conduct the hearing may issue the decision If the claimant objects to this procedure and if the credibility of testimony or the demeanor of a witness is critical to the decision the Appeals Council may vacate the decision and remand the case to an ALJ for a supplemental hearing and a new decision The ALJ will base the decision on the evidence and oral testimony the ALJ receives in connection with the supplemental hearing as well as the evidence and testimony received in connection with the original hearing H Unfair Hearing Allegations When a claimant alleges that the hearing was unfair and the record supports the allegation see I 3 125 the Appeals Council will vacate the hearing decision and remand the case to an ALJ for a hearing and decision In the remand order the Appeals Council will specify all of the reasons for remanding the case including any reason s unrelated to the unfair hearing issue The order will also direct that the case be assigned to an ALJ other than the one who conducted the prior hearing When the Appeals Council determines that the record does not support an unfair hearing allegation but is remanding the case for another reason s the remand order will specify that the Council considered the claimant s allegation and concluded that the claimant received a fair hearing I Mental Impairment Cases The Appeals Council will remand those cases in which the ALJ has not considered 404 1520a and or 416 920a despite the clear presence of a medically determinable mental impairment When the ALJ has properly considered 404 1520a and or 416 920a but has not completed a PRTF required by the regulations the Appeals Council will not remand solely for completion of the PRTF If the Appeals Council agrees with the ALJ s conclusions and no further development or testimony is needed the Council will grant review for the purpose of preparing a PRTF in accordance with the ALJ s findings and issuing an affirming decision with the PRTF attached J Following Proffer of Additional Evidence The Appeals Council will remand for further proceedings when the claimant requests further consideration by an ALJ after the Appeals Council proffers additional evidence See Appeals Text Guide 6 20 43 K Relationship or Dependency The Appeals Council will remand a case when it is necessary to obtain evidence and or resolve discrepancies relating to an individual s relationship to and or dependency on the wage earner L Adversely Affected Individual The Appeals Council will remand a case to afford the right to a hearing to an adversely affected individual who was not made a party to the prior proceedings See 20 CFR 404 932 and 416 1432 M Income and Resources Issues The Appeals Council will remand a case when it is necessary to substantiate allegations and resolve discrepancies relating to grant amounts living arrangements income resources etc in SSI cases HALLEX I 3 720 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 Remands Chapter I 3 700 June 30 1994 Current through June 1997 I 3 720 REMAND AFTER APPEALS COUNCIL VACATES DISMISSAL OF REQUEST FOR HEARING A General When the Appeals Council vacates an ALJ s dismissal of a request for hearing under 20 CFR 404 960 416 1460 it will generally remand the case to an ALJ for necessary action on the request for hearing B How Case Comes Before the Appeals Council 1 The claimant may request review of an ALJ s dismissal action 20 CFR 404 967 416 1467 2 The Appeals Council may assume jurisdiction on its own motion within 60 days after the notice of dismissal is mailed 20 CFR 404 969 416 1469 Example ALJ dismissed on the basis that no reconsidered determination had been made and the Appeals Council receives information that a reconsidered determination had in fact been made 3 The claimant within 60 days after the date of receipt of the dismissal notice may request the Appeals Council or the ALJ to vacate the dismissal 20 CFR 404 960 416 1460 C Appeals Council Staff Actions General 1 The Appeals Council must take formal action on requests for review of an ALJ s dismissal and requests that the Council vacate an ALJ s dismissal The effect of either type of request is the same The Council will either 1 deny the request or 2 grant the request vacate the dismissal and remand the case to the ALJ If the claimant requested the ALJ to vacate the dismissal and did not file a similar request or a request for review with the Council Appeals Council staff will return the case to the ALJ at the ALJ s request 2 The analyst will recommend vacating the ALJ s dismissal if the evidence including any current evidence or statements submitted shows that the dismissal action is not proper and that the claimant should receive a hearing on the basis of the original request for hearing HALLEX I 3 730 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 Remands Chapter I 3 700 June 30 1994 Current through June 1997 I 3 730 PREPARATION OF ANALYSIS 1 Complete Form HA 52 and Form HA 52A in disability cases 2 Explain why review is warranted under the regulations and what specific actions the ALJ must take NOTE It is not necessary to repeat in the analysis information which is clearly specified in the proposed remand order HALLEX I 3 740 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 Remands Chapter I 3 700 June 30 1994 Current through June 1997 I 3 740 PREPARATION OF REMAND ORDER A A remand order serves two purposes 1 The Appeals Council remand order instructs the ALJ what action s to take and why the action s is necessary and 2 The remand order also communicates information to the claimant Therefore in addition to providing precise comprehensive and accurate information and instructions to the ALJ it is also necessary to draft language from the claimant s perspective B Refer to chapter 6 20 of the Appeals Text Guide for remand order shells and stored paragraphs to complete or modify as necessary to reflect the facts of each individual case C The analyst will draft the insert language following these rules 1 Focus attention on the decision or dismissal under review rather than on the ALJ who wrote it Do not dwell on the ALJ s failures or errors in such a way that could possibly undermine his or her authority in future dealings with the claimant and the representative 2 Refer to the claimant in the third person e g as the claimant rather than in the second person as the Appeals Council does in denial notices 3 Use the active voice 4 To the extent possible use words which are simple and precise 5 Omit surplus words 6 Use legally correct terms 7 To the extent possible do not use in house jargon 8 Set forth clearly and concisely the reasons for the remand and the instructions for further action Avoid rationale language that broadly suggests what is required but is not specific enough to help the ALJ 9 Specify what evidence is needed and why 10 Cite pertinent conflicts in the record 11 Follow current instructions on pertinent circuit case law If the hearing decision did not adequately respond to issues which are of particular concern in that circuit see I 3 307 and I 3 390 Exhibit 1 the analyst must so specify in the remand order and include the excerpt from the circuit court decision exactly as it appears in I 3 390 Exhibit 1 12 Identify the new and material evidence which the claimant submitted to the Appeals Council and which is a basis for the remand In addition remember that correct spelling and grammar are important to all readers D Appeals Council remands will direct that to the extent practicable the Hearing Office Chief ALJ assign the remand to the ALJ who issued the decision or dismissal see I 2 155 EXCEPTION This policy will not apply when the Council directs that the case be assigned to a different ALJ e g it is determined that the claimant did not receive a full and fair hearing or it is a second remand E If the Appeals Council does not order that a hearing be held the remand order will require the ALJ to offer the claimant an opportunity to appear at a hearing even when the claimant initially waived an oral hearing EXCEPTION In title II disability claims in which the period at issue expired before the date of the hearing decision the claimant need not be offered the opportunity for a hearing unless

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    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

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    be alive or 4 the claim was denied because the claimant could not prove that the wage earner died and death is later established by reason of an unexplained absence from his or her residence for a period of 7 years or 5 the Railroad Retirement Board has awarded duplicate benefits on the same earnings record or 6 the determination or decision either denies the person on whose earnings record the claim is based gratuitous wage credits for military or naval service because another Federal agency other than the Department of Veterans Affairs has erroneously certified that it has awarded benefits based on the service or credits the earnings record of the person on which the claim is based with gratuitous wage credits and another Federal agency other than the Department of Veterans Affairs certifies that it has awarded benefits based on the period of service for which the wage credits were granted or 7 the claimant was denied for lack of insured status but earnings for the appropriate period of time were later credited to the claimant s earnings record or 8 the determination or decision is fully or partially unfavorable but only to correct a clerical error or an error that appears on the face of the evidence see section I 3 904 above or 9 a claimant is found entitled to monthly benefits or to a lump sum death payment based on the earnings of a deceased person and it is later established that the claimant was convicted by a court of competent jurisdiction of a felony or an act in the nature of a felony for intentionally causing the deceased person s death or 10 the determination or decision either denies the person on whose earnings record the claim is based deemed wages for internment during World War II because of an erroneous finding that a benefit based upon the internment has been determined by an agency of the United States to be payable under another Federal law or under a system established by that agency or awards the person on whose earnings record the claim is based deemed wages for internment during World War II and a benefit based upon the internment is determined by an agency of the United States to be payable under another Federal law or under a system established by that agency or 11 the determination is incorrect because the claimant was convicted of a crime that affected his or her right to receive benefits or his or her entitlement to a period of disability or the claimant s conviction of a crime that affected his or her right to receive benefits or his or her entitlement to a period of disability is overturned B Title XVI The Appeals Council may reopen a determination or decision which is otherwise final at any time when such determination or decision was obtained by fraud or similar fault C Title XI and Parts A and B of Title XVIII The Appeals Council may reopen a determination or decision which is otherwise final at any time if 1 the determination or decision is unfavorable in whole or in part to the party and there was clerical error or error on the face of the evidence on which the determination or decision is based or 2 the determination or decision was procured by fraud or similar fault of the beneficiary or some other person HALLEX I 3 907 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 Post Adjudicative Actions Chapter I 3 900 June 30 1994 Current through June 1997 I 3 907 ADMINISTRATIVE LAW JUDGE S JURISDICTION TO REOPEN AND REVISE A DETERMINATION OR DECISION A General When a case is properly before an ALJ in connection with a current application or otherwise the ALJ has jurisdiction to reopen and revise a prior final and binding determination When a case is properly before an ALJ and the conditions exist for reopening a prior ALJ s decision the ALJ may reopen and revise the ALJ decision on his or her own motion or upon request of a party to the hearing B When an ALJ may Reopen The ALJ has jurisdiction to reopen a prior ALJ decision his or her own decision or another ALJ s decision under any of the following circumstances no party filed a request for review with respect to the prior ALJ decision or the Appeals Council did not review the prior ALJ decision on its own motion or a party filed a request for review with respect to the prior ALJ decision but the Appeals Council dismissed the request for review for a reason other than the death of the claimant or a party filed a request for review with respect to the prior ALJ decision but the Appeals Council denied the request for review and the prior ALJ decision became final and binding NOTE If the Appeals Council denied the request for review and the claimant submits additional evidence to the ALJ within the 60 day period for filing a civil action the ALJ must refer the material to the Appeals Council for its consideration Usually additional evidence is before the ALJ in connection with a second application Because the 60 day period for filing a civil action following the Appeals Council s denial of the request for review on the first application would have expired in this case the ALJ has jurisdiction to reopen and revise the prior ALJ decision The ALJ cannot reopen and revise a prior ALJ decision solely on the basis of the evidence which the Appeals Council had considered at the time it denied the request for review of the ALJ decision on the first application A Federal court s affirmation of the prior decision does not affect the ALJ s jurisdiction to reopen and revise the prior decision C ALJ Lacks Jurisdiction to Reopen Although an ALJ may not have jurisdiction to reopen a prior decision in order to find entitlement on a prior application the ALJ may on the basis of new and material evidence make new findings of fact with respect to the previously adjudicated period and find entitlement on the basis of the current application HALLEX I 3 908 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 Post Adjudicative Actions Chapter I 3 900 June 30 1994 Current through June 1997 I 3 908 APPEALS COUNCIL S JURISDICTION TO REOPEN AND REVISE A DETERMINATION OR DECISION When a case is properly before the Appeals Council and the conditions for reopening exist the Appeals Council has jurisdiction to reopen any decision issued by the Appeals Council or an ALJ The Appeals Council has jurisdiction to reopen the following any Appeals Council decision or any ALJ decision if the case is properly before the Appeals Council on the basis of a subsequent application own motion review or otherwise or a party filed a request for review with respect to the prior ALJ decision but the Appeals Council dismissed the request for review because of the death of the claimant or a party filed a request for review with respect to the prior ALJ decision the Appeals Council denied the request for review and the Council is now considering evidence or other material constituting a request for reopening and revision submitted by the claimant or on the claimant s behalf within 60 days after the Appeals Council denied the request for review any initial determination or reconsidered determination if the case is properly before the Appeals Council on the basis of a subsequent application own motion review or otherwise HALLEX I 3 910 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 Post Adjudicative Actions Chapter I 3 900 June 30 1994 Current through June 1997 I 3 910 PROTEST CASES REVISED 06 94 A General As noted in section I 3 140 if 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 Restrictions on Reopening Reopening is restricted as follows 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 When a protest is received in a First or Eleventh Circuit case after the 60 day own motion period has expired return the case to the protesting component with a brief memorandum stating that the Appeals Council cannot consider the reopening issue pursuant to McCuin or Butterworth as appropriate C Consideration of Reopening Current Decision If after review of the record and a complete tape audit a recommendation for reopening by the Appeals Council is appropriate the analyst must prepare for the Appeals Council s consideration Forms HA 52 and HA 52A Disability Case Fact Sheet and Disability Case Analysis and Recommendation and a reopening notice to the claimant representative advising them of the reasons for reopening and of their rights If the Appeals Council assumes jurisdiction the Council will proffer the protest memorandum to the claimant and representative see I 3 140 Workup of Case by Analyst Bureau Protest Cases Consideration of Own Motion Review and I 3 654 Proffer of Protest Memorandum D Reopening Current Decision not Warranted If after review of the record and a complete tape audit a recommendation for reopening by the Appeals Council is not appropriate the analyst must prepare for the Appeals Council s consideration Forms HA 52 and HA 52A Disability Case Fact Sheet and Disability Case Analysis and Recommendation and a draft response to the protesting component for the signature of the AAJ E Protest Requests Reopening a Prior Determination or Decision When the protest memorandum asks the Appeals Council to consider reopening a prior determination or decision the analyst will review the case to the extent necessary to determine that reopening is permitted under the rules of administrative finality and 1 if the prior decision was issued by the Appeals Council prepare an appropriate recommendation for Council action 2 if the prior decision was issued by an ALJ or an initial or reconsidered determination is to be reopened prepare an appropriate referral to the ALJ who issued the current hearing decision on the case The Appeals Council does not take jurisdiction in these cases The referral will advise the ALJ to forward the file to the effectuating component if the ALJ reopens the prior decision or determination or to return the file to OAO if the ALJ does not reopen F Protest Replies See section I 3 140 F for information regarding protest replies HALLEX I 3 920 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 Post Adjudicative Actions Chapter I 3 900 June 30 1994 Current through June 1997 I 3 920 RECEIPT OF MATERIAL CONSTITUTING A REQUEST FOR REOPENING Upon receipt in the Docket and Files Branch DFB of material e g a letter medical report or other document constituting a request to reopen an ALJ or Appeals Council decision DFB will forward the material and the claim file to the appropriate OAO branch for necessary action If the ALJ has jurisdiction to consider the reopening question and the material constituting a request to reopen the hearing decision was sent directly to OHA Headquarters the analyst will forward the material to the ALJ to consider the reopening question If the ALJ had initially received the material and has jurisdiction to consider the reopening question but had erroneously forwarded the material to OHA Headquarters the analyst will return the material to the ALJ to consider the reopening question Section I 3 921 contains the guides for completing the overprinted Form HA 505 Transmittal by Office of Hearings and Appeals used to forward or return material to the ALJ to consider the reopening question If the ALJ 1 construed the material as being a request for review 2 prepared a Form HA 520 Request for Review and 3 forwarded the material to OHA Headquarters the Appeals Council will consider the request for review and request for reopening HALLEX I 3 921 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 Post Adjudicative Actions Chapter I 3 900 June 30 1994 Current through June 1997 I 3 921 FORWARDING OR RETURNING MATERIAL TO AN ALJ TO CONSIDER REOPENING An analyst must use the appropriate overprinted form HA 505 to forward material or when the material had been improperly forwarded by the ALJ to OHA Headquarters return material to an ALJ to consider the question of reopening If the claim file is not already in OHA it need not be obtained The ALJ will determine whether to obtain the file In completing the form HA 505 show the name and location of the ALJ to whom the material is being sent and check the appropriate block or blocks to indicate whether the claim file is being sent Check the block marked EVIDENCE if appropriate and or OTHER and identify the material being forwarded Prepare a copy of the form HA 505 for the appeals file if any HALLEX I 3 930 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 Post Adjudicative Actions Chapter I 3 900 June 30 1994 Current through June 1997 I 3 930 PROCEDURE WHEN THE APPEALS COUNCIL CONSIDERS REOPENING When the Appeals Council is to consider a request for reopening the analyst must review the material to see whether reopening and revision are warranted The analyst must request the claim file and or appeals file if not already on hand The analyst will take one of the following actions 1 If further development is needed to determine whether reopening and revision are warranted the analyst will recommend such development to the A and B AAJs 2 If the analyst believes that reopening and revision are warranted the analyst will prepare an appropriate recommendation and draft decision etc When forwarding a reopening recommendation to the Appeals Council the analyst must clearly show on the route slip the date by which reopening must be initiated 3 If the analyst believes that reopening and revision are not warranted and the material was submitted to OHA Headquarters by the claimant or representative the analyst will prepare a letter to the claimant with copy to the representative if any over the signature of the A AAJ responding to any questions contained in the correspondence and explaining why the additional material does not warrant a change in the prior decision see sample paragraphs below The letter must be prepared in final and routed for review to the A AAJ Upon approval the A AAJ s appeals technician will release it The analyst must prepare a similar letter to the claimant if the material was submitted by some other source and the claimant was aware of its submission If the claimant was not aware of its submission the analyst will not prepare a letter to the claimant but instead will prepare a memorandum for the file form HA 521 documenting that the material submitted does not warrant reopening and revision The files must be routed to the A AAJ for approval Use the following or similar language in the letter sent to the claimant and the representative if any when reopening and revision is not warranted a The Appeals Council has carefully studied the medical report of October 1 1988 signed by Dr Jay The information contained in this report is essentially the same as that appearing in an earlier report by Dr Kay which is already a part of the record in your case For this reason the additional evidence does not warrant a change in the Appeals Council s decision of August 4 1988 which stands as the final decision of the Secretary b The Appeals Council has carefully studied the report of your recent hospitalization from June 15 to June 21 1988 You had requested the Mayo Clinic to submit the report in support of your claim for disability benefits The evidence was not previously a part of the record in your case and shows that you have an arthritic impairment However the record as supplemented by this report does not show that this impairment was present on or before March 31 1985 when you last met the special earnings requirement of the law Therefore the hospital report does not warrant a change in the Appeals Council s decision of April 25 1988 which stands as the final decision of the Secretary HALLEX I 3 931 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 Post Adjudicative Actions Chapter I 3 900 June 30 1994 Current through June 1997 I 3 931 REOPENING AND REVISING PRIOR DECISION BEFORE FORWARDING CURRENT DECISION FOR EFFECTUATION An analyst may review a favorable hearing decision in accordance with procedures for review of unappealed cases before sending it to the appropriate component for effectuation If the analyst believes that the regulations warrant reopening and revising a prior hearing

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  • HALLEX I-4-001
    OCA The chapters in Division 4 generally correspond to the sequence of events in the processing of cases in which a civil action has been filed For example new court cases are discussed in chapter I 4 100 supplemental reviews in chapter I 4 200 remands in chapter I 4 300 etc In addition there are separate chapters on class actions chapter I 4 600 and actions which may occur

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    of Hearings and Appeals OHA actions on cases in which a civil action has been filed These actions include acting on new court cases conducting supplemental reviews of pending court cases acting on remand orders from the court and recommending whether to seek an appeal when a federal court makes a decision adverse to the Secretary The types of cases include claims for benefits filed under titles II XVI and XVIII of the Social Security Act as amended and title IV of the Federal Mine Safety and Health Act of 1977 as amended claims for individual enrollment to participate under Parts A or B of title XVIII of the Act and claims by hospitals skilled nursing facilities and independent laboratories seeking certification or continued certification under title XVIII of the Social Security Act OCA provides professional and technical advice to the Associate Commissioner the Appeals Council the Chief Administrative Law Judge and other OHA officials in all cases in which a civil action has been filed OCA is also responsible for formulating implementing and evaluating OHA s litigation management strategy and is the focal point for representing that strategy to other Social Security Administration and the Department of Health and

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