I-1-10-60.Appeals Council - Processing Written Exceptions to Administrative Law Judge Final Decision Following Court Remand with a Subsequent Claim(s)

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

When the Appeals Council (AC) processes written exceptions to a final administrative law judge (ALJ) decision following court remand (referred to as a Final Decision after Court Remand or Fin Dec), the analyst will determine whether the claimant has filed a subsequent claim(s). For instructions on identifying subsequent claim(s), see Hearings, Appeals and Litigation Law (HALLEX) manual I-1-10-15.

NOTE:

The instructions in subsections A and B, below, do not apply to fraud redeterminations. Generally, the AC will not consolidate or direct an 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 or Denied

1. AC Declines Jurisdiction

When a subsequent claim(s) is pending or has been denied and the analyst recommends that the AC decline jurisdiction of a Fin Dec, the AC notice declining jurisdiction will acknowledge the subsequent claim(s) and inform the claimant that the AC's action pertains only to the Fin Dec.

The analyst should use the following language in the AC notice:

This notice is only about the Administrative Law Judge's decision dated [date], on the claim(s) you filed on [date]. That decision is the final decision in your case following court remand. This notice is not about any other claim(s) for benefits that you have filed.

2. AC Assumes Jurisdiction

If the AC assumes jurisdiction of the Fin Dec and remands the case, the AC remand order will inform the claimant when the AC directs consolidation of the claims.

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

Most commonly, if the AC assumes jurisdiction of a Fin Dec 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 claims may involve a common issue. For how we define a common issue, see Program Operations Manual System (POMS) DI 12045.010 and DI 12045.015. When a common issue is involved, the AC will direct consolidation and remand the claims by adding 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

If the AC assumes jurisdiction of a Fin Dec and an ALJ has issued an unfavorable decision in the subsequent claim(s), the AC remand order will address the subsequent claim(s) if the subsequent claim(s) involves a common issue depending on the timeframes discussed below. For how we define a common issue, see POMS DI 12045.010 and DI 12045.015.

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

The AC may review a hearing decision on its own motion within 60 days after the date of notice under 20 CFR 404.969 and 416.1469.

If the AC assumes jurisdiction of a Fin Dec, 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.

To determine whether an interim notice is required prior to assuming jurisdiction, see HALLEX I-4-8-25 and I-4-8-70.

For information about own motion review, see HALLEX I-3-6.

NOTE:

Because the AC must take own motion review within 60 days after the hearing office's action, 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 signature.

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

If the AC assumes jurisdiction of a Fin Dec and the subsequent claim(s) does not contain a request for review of the unfavorable ALJ decision, 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.

(1) No Basis to Reopen Subsequent Decision

If there is no basis to reopen the subsequent unfavorable ALJ decision, the AC remand order assuming jurisdiction of a Fin Dec 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 Fin Dec.

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.

(2) Basis for Reopening Subsequent Decision Exists

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 assuming jurisdiction, the AC will issue an interim notice.

NOTE:

The AC remand order assuming jurisdiction will direct consolidation of the claims if the subsequent claim(s) involves a common issue (i.e., shares an overlapping period of time). 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 [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).

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

When the timeframes for reopening the subsequent claim have lapsed and the AC assumes jurisdiction of a Fin Dec, the AC will acknowledge the decision on the subsequent claim(s) and direct the ALJ to consider that decision, if necessary, consistent with applicable reopening regulations. 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 404.987 and 416.987.

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

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. Subsequent Claim Allowed

If a subsequent claim was allowed, the analyst will review the file for information concerning the subsequent allowance.

The analyst will make a recommendation to the AC as to whether the evidence in both records supports the outcomes in both the prior claim and subsequent allowance.

NOTE:

When the subsequent claim(s) file is paper, Office of Appellate Operations staff will request the file before the analyst makes a recommendation on the subsequent allowance.

If the subsequent allowance is supported, the AC may 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 order, if necessary, assuming jurisdiction of the Fin Dec, affirming the allowance, and limiting the scope of the remand to the appropriate remaining period to be adjudicated; or

  • Issue a remand order, assuming jurisdiction of the Fin Dec based on the merits of the case, affirming the allowance, and limiting the scope of the 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 Fin Dec 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 will either:

  • Decline jurisdiction based on the merits of the Fin Dec and address the allowance by stating:

    The Appeals Council considered the fact that since the date of the Administrative Law Judge's decision, you were found to be under a disability beginning on [date], based on the claim(s) you filed on [date]; however, the Council found that this information does not warrant a change in the Administrative Law Judge's decision.

  • Assume jurisdiction based on the merits of the Fin Dec and address the allowance by stating:

    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].