I-3-6-3.Request for Appearance
Last Update: 9/08/05 (Transmittal I-3-36)
A. Title II, Title XVI, Title XVIII (Entitlement Cases)
When the Appeals Council grants a request for review or reviews an ALJ decision or order of dismissal on its own motion and gives prior notice of this action, the Council notifies the claimant and representative that they may request an appearance to present oral argument.
The Appeals Council may grant or deny a request for an appearance. It will grant a request for an appearance if it determines that:
a significant question of law or policy is presented; or
oral argument would benefit the Appeals Council in rendering a sound decision in the case.
2. Analyst Recommends Fully Favorable Decision
If, after receiving a request for an appearance in response to a grant review notice, the analyst believes the record supports a fully favorable decision, the analyst will draft the decision. The decision will address the request for an appearance as follows: “The claimant requested an appearance before the Appeals Council to present oral argument. Because the decision of the Council is fully favorable, an appearance would serve no useful purpose.”
3. Recommendation to Deny Request for Appearance
If the record is complete and there is no question of law or policy on which oral argument would be beneficial to the Appeals Council in reaching a proper decision, the analyst will draft a letter notifying the claimant and representative that the Council denies the request. The letter will explain the basis for the action and furnish an opportunity to present arguments in writing. (See the Appeals Text Guide.)
After the Appeals Council approves and releases the letter, the OAO branch support staff will diary the case for 45 days awaiting written arguments from the claimant.
a. Claimant or Representative Submits Written Statement and/or Additional Evidence: Fully Favorable Decision Recommended
If the analyst believes that the record now supports a fully favorable decision, the analyst will draft the decision for the consideration of the Appeals Council. The decision will refer to the request for an appearance, its denial by the Council, and the receipt of the written statement and/or additional evidence. The statement and any evidence submitted by the claimant shall be introduced into the record in the usual manner.
b. Claimant or Representative Submits Written Statement and/or Additional Evidence: Less than Fully Favorable Decision Recommended
If the analyst recommends either a partially favorable or denial decision, the decision must contain language stating that the claimant's request for an appearance was not granted because the Appeals Council concluded that no significant question of law or policy was presented and that oral argument would not be beneficial in rendering a proper decision. The statement and any additional evidence submitted by the claimant will be introduced into the record in the usual manner.
c. Claimant or Representative Do Not Respond
After the diary period expires, the analyst will draft an appropriate decision for the Appeals Council's consideration. If any argument or additional evidence is received after the Council issues its decision, the analyst will handle the material in accordance with the reopening and revision procedures. (See I-3-9.)
4. Recommendation to Grant Request for Appearance
If the record of the case is complete and the claimant has requested an appearance, the analyst may conclude that a significant question of law or policy is presented and/or oral argument would be beneficial to reach a proper decision. The analyst will prepare a memorandum updating any prior analysis of the case, as necessary, and recommend granting the request for an appearance.
a. Appeals Council Does Not Agree with Recommendation
If the Appeals Council concludes that an appearance is not warranted, it will return the case to the analyst for further action as in I-3-6-3 A.3. above (denial of request for appearance).
b. Appeals Council Agrees with Recommendation
If the Appeals Council agrees with the recommendation to grant the request for an appearance, the “A” AAJ will refer the case to the office of the Deputy Chair for designation of the appearance panel and location of the appearance.
Location of Appearance Before Appeals Council
The Appeals Council will designate a location for the appearance considering convenience to the claimant and administrative feasibility (see 20 CFR 422.205(b)). SSA will reimburse the claimant and representative, if any, for travel to and from the appearance site. SSA will not reimburse expenses of witnesses because the purpose of the appearance is for oral argument, not for testimony.
Composition of the Appearance Panel
20 CFR 422.205(b) specifies (1) that appearances will be conducted by a panel of not less than three AAJs of the Appeals Council designated in the manner prescribed by the Chair or Deputy Chair, and (2) that concurrence of a majority will constitute the Appeals Council decision. The Chair of the Appeals Council may designate an ALJ to serve as an AAJ of the Appeals Council panel. The Chair will not designate an ALJ who was previously involved in the case under review. (See section 422.205(f)).
The Chair or Deputy Chair will designate the AAJs to serve on the appearance panel based on the circumstances of each case. If an AAJ of the panel cannot attend, the Chair or Deputy Chair will designate a new AAJ to serve.
Scheduling the Appearance
After the panel AAJs and the location for the appearance have been designated, the Appeals Program Officer will make arrangements for the appearance at the designated site, and ensure a recorder is available.
The Appeals Program Officer will forward information about the appearance and the files to the office of the AAJ serving as chair of the panel. The panel chair's support staff 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 support staff 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 Support Staff 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 support staff 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.