Subject: Appeals Council Interpretations
The Appeals Council Interpretation (ACI) at HALLEX II-5-3-3 was issued in December 1988 and contains language used by the adjudicator to demonstrate awareness of the shifting burden requirement at step five of the sequential evaluation process. On August 26, 2003, the Social Security Administration (SSA) issued final regulations clarifying the nature of its burden of proof at step five. The Federal Register at 68 FR 51155, states: “Although you generally bear the burden of proving disability throughout the sequential evaluation process, there is a limited shift in the burden of proof to us 'only if the sequential evaluation process proceeds to the fifth step.'” Based on this clarification of policy, the Appeals Council is revising the shifting burden language in HALLEX II-5-3-3 to incorporate the limited shifting burden language that appears in the Federal Register.
The ACI at HALLEX II-5-3-5 was issued in January 1992 and discusses the two case examples then contained in Section 201.00(h) of Appendix 2 to Subpart P of the Regulations. On August 28, 2001, SSA issued final regulations revising section 201.00(h). The Federal Register at 68 FR 45164 states: “We are also deleting, without replacement, the two case examples that were in prior section 201.00(h).” The FR goes on to state: “We are deleting the examples because they are no longer needed and our adjudicative experience has shown that they can be unclear and have been misinterpreted.” Based on this revision to section 201.00(h) of Appendix 2, the Appeals Council is deleting HALLEX II-5-3-5.
This transmittal updates both the title and text in HALLEX II-5-3-3. The title has been revised to: Express Written Acknowledgement of the Limited Shifting of the Burden at the Last Step of the Sequential Evaluation Process. The sample statement for adjudicators to use in discussing the shifting burden has been revised in keeping with the clarification of the limited shifting burden contained in 68 FR 51155.
This transmittal also removes HALLEX II-5-3-5 (Examples in Section 201.00(h) of Appendix 2) without replacement.
Date: December 14, 2005