I-1-10-55.Appeals Council - Processing a Voluntary Remand with a Subsequent Claim(s)

Last Update: 7/7/17 (Transmittal I-1-89)

When the Appeals Council (AC) is processing a voluntary remand, the analyst will determine whether the claimant has filed a subsequent claim(s). For instructions on identifying subsequent claims, see Hearings, Appeals and Litigation Law (HALLEX) manual I-1-10-15. For more information on voluntary remands, see HALLEX I-4-5.

NOTE:

The instructions in subsections A through F, below, do not apply to fraud redeterminations. Generally, the AC will not consolidate or direct an administrative law judge (ALJ) to consolidate a fraud redetermination made under section(s) 205(u) and/or 1631(e)(7) of the Social Security Act with another claim(s), because there is no “common issue” between the fraud redetermination and the other claim. See HALLEX I-1-3-25 C.4.c.

A. Subsequent Claim(s) Pending at Initial, Reconsideration or Hearing Level, or Denied at Initial or Reconsideration Level

When the AC processes a voluntary remand and a subsequent claim(s) is pending at the initial, reconsideration or hearing level, or has been denied at the initial or reconsideration level, the AC remand order will direct consolidation of the claims if the subsequent claim(s) involves a common issue. For how we define a common issue, see Program Operations Manual System (POMS) DI 12045.010 and DI 12045.015.

The AC will add the following language to the remand order:

The claimant filed [a/an paper/electronic] subsequent claim(s) for [Title II and/or Title XVI disability] benefits on [date]. The Appeals Council's action with respect to the current [paper/electronic] claim(s) renders the subsequent claim(s) duplicate. Therefore, the Administrative Law Judge will consolidate the claim files, associate the evidence, and issue a new decision on the consolidated claims (20 CFR [404.952 and/or 416.1452], and HALLEX I-1-10-10).

B. Subsequent Claim(s) Denied at Hearing Level

When the AC processes a voluntary remand after an ALJ has issued an unfavorable decision in the subsequent claim(s), and the claims involve a common issue, the AC remand order will address the subsequent claim(s) depending on the timeframes discussed below.

1. If Within 60 Days of ALJ Decision and No Request for Review Filed

Under 20 CFR 404.969 and 416.1469, the AC may review a hearing decision on its own motion within 60 days after the date of the hearing decision. For more information about the AC's own motion review procedures, including when an interim notice may not be required, see HALLEX I-3-6.

When processing a voluntary remand, if the 60 days for own motion review have not lapsed and the claimant has not filed a request for review on the subsequent claim(s), the AC will use its own motion authority to consolidate the prior and subsequent claim(s) based on the “broad policy or procedural issue that may affect the general public interest” provision of 20 CFR 404.970 and 416.1470.

NOTE:

Because the AC must take own motion review within 60 days after the case is adjudicated at the hearing level, the analyst must ensure that the case is routed to the “A” member administrative appeals judge (AAJ) in a timely manner. After the “A” member AAJ approves the action document, the case will go to the “B” member AAJ for consideration.

2. If Beyond 60 Days but Within Timeframes for Reopening and No Request for Review Filed

When processing a voluntary remand and if the claimant did not request review of the unfavorable ALJ decision and the 60 days for own motion review of the subsequent claim(s) have lapsed, the AC must have a reason to reopen the subsequent hearing decision under 20 CFR 404.988 and 416.1488. The AC may reopen a subsequent unfavorable ALJ decision:

  • Within 12 months of the date of the notice of the initial determination for any reason (see HALLEX I-3-9-30);

  • Within four years (title II) or two years (title XVI) of the date of the notice of the initial determination if the Social Security Administration (SSA) finds good cause (see HALLEX I-3-9-40);

  • At any time for fraud or similar fault (see HALLEX I-3-10-7); and

  • At any time in title II cases for the reasons set forth in 20 CFR 404.988(c) (see HALLEX I-3-9-60).

Information about computing the time period for reopening is found in HALLEX I-3-9-20.

a. No Basis to Reopen Subsequent Decision

When processing a voluntary remand and if there is no basis to reopen the subsequent unfavorable ALJ decision, the AC remand will acknowledge the subsequent claim(s) and, when the claim(s) is within the timeframes for reopening (20 CFR 404.988 and 416.1488), will direct the ALJ to consider the subsequent unfavorable ALJ decision consistent with the reopening regulations when deciding the prior claim remanded by the court.

If there is no basis to reopen, the analyst should use the following language in the AC remand order:

The claimant filed [a] subsequent claim(s) for [Title II and/or Title XVI] disability benefits on [date], which [was/were] denied by hearing decision issued on [date]. The Administrative Law Judge will consider that decision, if necessary, consistent with applicable reopening regulations, when deciding the claim(s) remanded by the court.

b. Basis for Reopening Subsequent Decision Exists

When processing a voluntary remand, if there is a basis to reopen the subsequent unfavorable ALJ decision and the subsequent claim(s) is within the timeframes for reopening (20 CFR 404.988 and 416.1488), the AC will direct consolidation of the claims. Prior to issuing the remand order, the AC will issue an interim notice in the subsequent claim(s).

NOTE:

The AC remand order will direct consolidation of the claims if the subsequent claim(s) involves a common issue (i.e., shares an overlapping period of time). The interim notice will explain to the claimant that the AC proposes to direct consolidation of the claims. For how we define a common issue, see POMS DI 12045.010 and DI 12045.015.

The AC will add the following language to the remand order:

The claimant filed [electronic/ paper] subsequent claim(s) for [Title II and/or Title XVI disability] benefits on [date]. The Appeals Council's action with respect to the current [paper/electronic] claim(s) renders the subsequent claim(s) duplicate. Therefore, the Administrative Law Judge will consolidate the claim files, associate the evidence, and issue a new decision on the consolidated claims (20 CFR [404.952 and/or 416.1452], and HALLEX I-1-10-10).

3. If Beyond Timeframes for Reopening and No Request for Review Filed

When the AC processes a voluntary remand after the timeframes for reopening the unfavorable ALJ decision on the subsequent claim have lapsed, the AC will remand the prior claim acknowledging the decision on the subsequent claim(s) and directing the ALJ to consider that decision, if necessary, consistent with applicable reopening regulations, when deciding the prior claim remanded by the court. In such situations, the ALJ may reopen and revise a subsequent claim(s) if additional development indicates that the conditions for reopening are met under 20 CFR 404.988 and 416.1488.

The analyst should use the following language in the AC remand order:

The claimant filed [a] subsequent claim(s) for [Title II and/or Title XVI] disability benefits on [date], which [was/were] denied by hearing decision issued on [date]. The Administrative Law Judge will consider that decision, if necessary, consistent with applicable reopening regulations, when deciding the claim(s) remanded by the court.

C. Subsequent Claim(s) Pending at AC Level

When the AC processes a voluntary remand while there is a request for review of an ALJ decision on a subsequent claim(s) pending before the AC, the AC may act on the request for review and the voluntary remand at the same time. If there is a common issue, an Office of Appellate Operations (OAO) Court Case Preparation and Review Branch (CCPRB) will process both claims, which will include making all necessary entries regarding the claims in the Appeals Review Processing System and closing them out.

1. AC Remands Prior Claim Based on Voluntary Remand and Grants Review in Subsequent Claim(s)

When the AC grants review of the subsequent claim(s), it will coordinate the action with the voluntary remand. The AC will direct consolidation with the prior claim because the subsequent claim(s) is duplicate or involves an overlapping time period. The AC will issue a single remand order that explains the basis for the voluntary remand and the basis for granting review in the subsequent claim(s). The remand order will also explain the actions the ALJ needs to take on remand.

In such instances, the analyst should use the following language in the AC remand order:

The claimant filed [a] subsequent claim(s) for [Title II and/or Title XVI] disability benefits on [date], which [was/were] denied by hearing decision issued [date]. The Administrative Law Judge will consider that decision, if necessary, consistent with applicable reopening regulations, when deciding the claim(s) remanded by the court.

2. AC Remands Prior Claim Based on Voluntary Remand and Denies Review in Subsequent Claim(s)

In unusual circumstances where there is a clear reason not to direct consolidation of the claims (for example, such claims involve a different title with no common issue) and it is not required by the voluntary remand, the AC may find it appropriate to remand a prior claim based on the voluntary remand but deny review on a subsequent claim(s) pending before the AC. In these circumstances, the AC will:

  • Acknowledge the subsequent claim(s) in the voluntary remand order and direct the ALJ to only consider the period at issue in the prior claim; and

  • Issue a standard denial notice on the subsequent claim(s), stating that the prior claim is being addressed in a separate notice.

The analyst should use the following language in the AC remand order:

The claimant filed [a] subsequent claim(s) for [Title II and/or Title XVI] disability benefits on [date], which [was/were] denied by hearing decision issued [date]. This remand order does not involve the period at issue in the subsequent claim(s).

D. AC Denies Review in Subsequent Claim(s) - No Pending Civil Action

When the AC processes a voluntary remand after it has denied the claimant's request for review of an ALJ decision on the subsequent claim(s) and the claimant has not appealed to the Federal court, the AC will vacate the denial of the request for review if it involves a common issue (i.e., shares an overlapping period of time).

The AC will grant review on the subsequent claim(s) to consolidate it with the prior claim. The AC will issue a single remand order that addresses the voluntary remand in the prior claim and the basis for granting review in the subsequent claim(s). The AC will grant review in the subsequent claim(s) under the “broad policy or procedural issue” provision pursuant to 20 CFR 404.970 and 416.1470. The remand order will also explain what actions the ALJ needs to take on remand.

In addressing the prior claim resulting from the voluntary remand, the remand order will state that:

The Appeals Council vacates the final decision of the Commissioner of Social Security and remands this case to an Administrative Law Judge for resolution of the following issues: …

In addressing the subsequent claim(s), the order will state:

The Appeals Council grants the request for review under the broad policy or procedural issue provision of the Social Security Administration regulations (20 CFR [404.970 and/or 416.1470]). Under the authority of 20 CFR [404.977 and/or 416.1477], the Appeals Council vacates the hearing decision and remands this case for further proceedings consistent with the order of the court.

NOTE 1:

The AC should not grant review on the subsequent claim(s) under the other provisions of 20 CFR 404.970 and 416.1470 since the AC had previously denied the request for review, indicating that the subsequent ALJ decision was supported by substantial evidence, did not contain an error of law, etc.

NOTE 2:

Division of Civil Actions staff should ensure that a civil action has not been filed by searching the Public Access to Court Electronic Records database.

E. AC Denies Review in Subsequent Claim(s) – Pending Civil Action

This subsection applies when the AC processes a voluntary remand and (1) it has already denied the request for review of the ALJ decision on the subsequent claim(s); (2) the claimant has filed a civil action on the subsequent claim(s), which is pending in Federal court; and (3) the prior and subsequent claims involve a common issue. In this circumstance, the AC will request remand from the Office of the General Counsel for consolidation under the “broad policy or procedural issue” provision of 20 CFR 404.970 and 416.1470. The CCPRB will work these cases.

For information about seeking remand of a pending court case, see HALLEX I-4-5-10.

Once the AC obtains jurisdiction over the subsequent claim(s), it will issue a single remand order that addresses the voluntary remand in the prior claim and directs consolidation with the subsequent claim(s) under the “broad policy or procedural issue” provision pursuant to 20 CFR 404.970 and 416.1470. The remand order will also explain what actions the ALJ needs to take on remand.

F. Subsequent Claim Allowed

When the AC processes a voluntary remand from a prior claim after the subsequent claim has been allowed, the analyst will review the file for information concerning the subsequent allowance.

The analyst's recommendation to the AC will discuss and provide reason(s) for whether the AC should: 1) affirm the allowance, 2) reopen the allowance, or 3) neither affirm nor reopen the allowance.

NOTE:

When the subsequent claim is paper, OAO staff will request the file before the analyst makes a recommendation on the subsequent allowance.

If the subsequent allowance is supported, the AC will either:

  • Issue a fully favorable decision that affirms the subsequent allowance or references but does not disturb the subsequent allowance;

  • Propose a partially favorable decision (by establishing an earlier onset date based on the evidence in the subsequent claim) and a partial remand of the prior claim, if necessary, affirming the allowance and limiting the scope of the voluntary remand to the appropriate remaining period to be adjudicated; or

  • Issue a remand order, affirming the allowance and limiting the scope of the voluntary remand to the appropriate remaining period to be adjudicated.

If the subsequent allowance is not supported, the AC will decide whether to reopen the subsequent allowance when it acts on the voluntary remand under 20 CFR 404.988 and 416.1488.

If the AC determines that reopening is appropriate, the AC will issue an interim notice advising the claimant that it is reopening the subsequent allowance and remanding the subsequent claim to an ALJ for further proceedings and consolidation with the prior claim.

If it is unclear whether the subsequent allowance is supported and there is no basis to reopen the subsequent allowance, the AC remand order will neither affirm nor reopen the allowance and will limit the scope of the remand to the appropriate remaining period to be adjudicated.

The AC will add the following language to the remand order:

The Appeals Council neither affirms nor reopens the [State agency determination/decision], which continues to be binding. This means that the [determination/decision] will be subject to reopening and revision if additional development indicates that the conditions for reopening are met (20 CFR [404.987 and/or 416.1487]). Unless the [determination/decision] is reopened and revised in accordance with applicable regulations, the period before the Administrative Law Judge will be limited to that period prior to [date of established onset].