I-2-1-85.Requesting Clarification of Appeals Council Remand Orders - Policy

1. ALJ Cannot Carry Out the Directive(s) Set Forth in the Remand Order

An ALJ may not be able to carry out the directive(s) set forth in the remand order in the following situations:

• The directive(s) violates law or agency policy, or carrying out the directive(s) may require the ALJ to violate law or agency policy;

• The directive(s), if followed, would cause inordinate delay in a claim or be unnecessarily burdensome; or

• The directive(s) is based on a factual or clerical error, and the error results in a directive(s) that cannot be carried out or a directive(s) that is unclear based on the actual facts.

The following are examples of valid clarification requests:

• The AC directs the ALJ to request a consultative examination to evaluate the claimant's mental impairments. The claimant is in a confinement facility for an extended period of time, and the facility will not allow a consultative examination while the claimant is confined.

• The AC directs the ALJ to obtain a hearing test and examination performed by a qualified otolaryngologist but there is no otolaryngologist in the area servicing the HO.

• The AC remand directs the ALJ to consider the findings of a prior ALJ decision, but the AC made an error and no prior ALJ decision was issued.

The following are examples of clarification requests that are not valid:

• The ALJ disagrees with the AC's finding that the claimant had “good cause” for failing to appear at the scheduled hearing.

• The remand order did not cite a regulatory basis for granting review.

• The AC does not explain why a medical expert is needed to resolve the reasons for remand.

• A Federal court issued the directive(s).

• The heading in an AC remand order erroneously indicates a concurrent claim in a title XVI only claim. However, the content of the order clearly references the ALJ decision by date, and the error in the heading does not preclude the ALJ from carrying out the AC directive(s).

• An ALJ previously received conflicting instructions in a remand order from the AC in a different case.

2. When the Directive(s) Appears to Be Rendered Moot

A change in circumstance or an error of fact may make a directive(s) obsolete in some instances. The following are examples of valid requests for clarification in these circumstances:

• The AC remands a case for a new hearing solely because the hearing recording cannot be located. The hearing recording is subsequently found and is determined to be audible, and a new hearing has not yet been held.

• The AC remands a case to determine the identity and Social Security number (SSN) of the wage earner on whose record the claimant may apply for benefits. On remand, the HO discovers a clerical error resulted in the entering of an incorrect digit in the SSN in the Case Processing and Management System (CPMS) and the HO corrected the error.

Additionally, when deciding whether to request expedited clarification because a missing claim(s) file or hearing recording has been located, HO staff will take into consideration the following:

• If the AC includes any other directive(s) in the remand order, the expedited clarification process may not be used.

• The definition of “missing” hearing recording includes “inaudible” hearing recordings. Therefore, if a case is remanded solely because the hearing recording is inaudible, but the recording is later found to be completely audible, the expedited clarification procedures may be used.

• It is not anticipated that the AC will remand an electronic case for a lost or missing claim(s) file. However, should this be the only reason for remand when a claim(s) file is electronic, HO staff may use the procedures in HALLEX I-2-1-87 to notify the Office of the Chief Administrative Law Judge (OCALJ). The referral will be handled on a case-by-case basis, and OCALJ will provide appropriate instructions to the HO.

• The AC will deny a request for clarification if the HO submits a compact disc (CD) copy of a recovered recording for an electronic claim(s) file because an electronic claim(s) file is incomplete without an official hearing recording uploaded to the Multimedia Files section in eView. If the recording is completely audible but the recovered digital recording cannot be uploaded to the electronic claim(s) file, the HO cannot use the expedited clarification process unless the claim(s) file is converted to paper. In situations where it is more appropriate to convert to a paper file than to hold a supplemental hearing, the HO can print out the entire claim(s) file, attach a CD copy of the recording, and send the entire paper claim(s) file with the CD to the AC (after following the instructions in HALLEX I-2-1-87). The HO must also ensure that CPMS and eView clearly indicate that the case has been converted to a paper claim(s) file.