I-4-3-32.Appeals Council Review Required — Analyst Recommends Action on Court Remanded Case

Last Update: 9/13/05 (Transmittal I-4-15)

A. General Considerations

If the analyst believes that the AC should remand the case to an ALJ and one of the situations in section I-4-3-30 requiring AC review is present, the analyst must first ensure that the HO can work the case when it receives it, as indicated in section I-4-3-31. The analyst must then determine whether to prepare a standard language remand order or a modified order.

In general, if the AC must review the case because of a circuit court remand, only slight modifications to the first line of the standard language order may be needed to reflect a circuit court remand rather than a district court remand (see I-4-3-101). If the case is one of “first impression,” a standard order may be appropriate; however, before sending the case to the AC, the analyst must: (1) confirm with the OGC office responsible for the case that SSA is not contemplating an appeal or a motion to reconsider and (2) document the appeals file with a report of contact. If, as a result of the RVR process, the court remanded on the Commissioner's motion or on the basis of a joint stipulation between the parties, a special order, briefly explaining the reason for remand (e.g., the hearing decision did not evaluate pain, a treating physician's opinion, etc.), will usually be required because the court order will normally indicate only that the Commissioner's or joint motion for remand is granted.

B. Guidelines for Preparing Modified Remand Orders

If a modified remand order is needed, the analyst must use the standard order as a guide for developing specialized language as follows:

  1. Do not refer to the RVR process or discuss memoranda between OHA and OGC. Any documents relating to the RVR process are considered privileged attorney-client communications. These documents must remain in the appeals file and will not be forwarded to the hearing office or made exhibits.

  2. Set forth clearly and concisely the reasons for the remand and the instructions for further action. Use clear and concise language that is specific enough to help the ALJ.

  3. Specify what evidence is needed and why. Because a specific kind of consultative examination, a particular type of specialist, or a particular medical diagnostic test may not be available in the HO's local service area, the remand order should provide a degree of flexibility by including an “if available” proviso.

  4. Focus attention on the decision under review, rather than on the ALJ who wrote it. Do not dwell on the court's findings of ALJ “failures” or “errors” in such a way that could possibly undermine the ALJ's authority in future dealings with the claimant and the representative.

  5. Refer to the claimant in the third person; e.g., as “the claimant,” rather than in the second person.

  6. Use the active voice.

  7. To the extent possible, use words which are simple, precise, and legally correct.

  8. Omit surplus words.

  9. Do not use in-house jargon or acronyms (see I-4-3-110).

  10. Do not designate a specific ALJ to conduct the further proceedings on remand. The Hearing Office Chief ALJ will assign the AC remand to an ALJ, generally the ALJ who issued the decision or dismissal.

EXCEPTION 1:

This policy will not apply when the Council directs that the case be assigned to a different ALJ, e.g., the AC or court determines that the claimant did not receive a full and fair hearing. If this situation occurs, the analyst must modify the remand order to specify that the case is being remanded to a different ALJ.

EXCEPTION 2:

This policy also does not apply when the AC previously remanded a case to the same ALJ. In those cases, the following language will be incorporated into the remand order:

As this case was previously remanded to the same Administrative Law Judge, the Appeals Council directs that upon remand, this case be assigned to another Administrative Law Judge.

C. Preparing the Analysis

The analyst must prepare a brief analysis explaining why the case requires AC review and, if appropriate, why a specialized AC remand order is needed.

If the court's remand order is brief, no further analysis may be needed. If the order is lengthy, the analyst may prepare a brief summary or underline certain portions of the appeals file copy of the court remand for the AC's benefit. (The CF or CAR copy of the court remand order which goes to the HO must not be annotated or marked.)

D. Standard Language, De Novo and Class Action Orders Not Requiring AC Review

The analyst must prepare the AC remand order by making an appropriate selection from among the alternatives shown on the computer menu of available macros. However, if the basic remand order must be customized to suit the particular circumstances and facts in the individual case, the case must be routed to the AC for approval of the modified remand order.

E. Standard Language Order Requiring AC Review

The analyst must prepare the remand order, as explained above, to the AAJ having geographic jurisdiction over the claimant's residence (see I-4-3-103 or I-4-3-104, for a current list of geographic assignments).

F. Modified Language Orders

The analyst must prepare the remand order, as above, including a detailed discussion of the basis for remand, the facts in the case and the action to be undertaken on remand by the ALJ to definitively address and resolve all issues in the case.