I-4-2-10.Assembly of Procedural Material for the Certified Administrative Record

Last Update: 6/26/23 (Transmittal I-4-93)

A. General

The procedural section of the administrative record consists of documents that reflect the administrative law judge's (ALJ) and the Appeals Council's (AC) treatment and consideration of the claimant's case. It includes documents relating to procedural due process as well as the final outcome.

The court legal assistant will review the case file to determine if any non-exhibited material should be included in the procedural section of the certified administrative record (CAR).

NOTE:

When performing the procedural review, the court legal assistant may discover additional evidence that the AC has not yet considered, or may see a case where the claimant is requesting judicial review of the AC 's dismissal action. In these situations, Court Case Preparation and Review Branch (CCPRB) staff will assign the case to an analyst to review the record in light of the additional evidence, and/or to determine whether the AC's dismissal action is defensible. The court legal assistant cannot finalize the CAR until the analyst completes the review and the AC takes any additional action. See Hearings, Appeals and Litigation Law (HALLEX) manual I-4-1-15 D.

B. Non-Exhibited Material Normally Included in the Procedural Section

When reviewing the non-exhibited material, the court legal assistant must consider material that is normally included in the procedural section. The court legal assistant will include the non-exhibited materials listed below in the procedural section of the CAR.

1. Forms or Requests

  • Appointment of representative;

  • Request for hearing;

  • Reply card from claimant acknowledging receipt of notice of hearing;

  • Request for review of hearing decision (or AC own motion review letter — usually made an AC exhibit);

  • Request for extension of time to submit additional evidence;

  • Request from claimant to examine the exhibits or for copies of the exhibits (and the response);

  • Request for reopening;

  • Claimant's request for extension of time to file a civil action; and

  • Reports of contact regarding waiver of hearing or failure to attend a hearing.

2. Notices

  • Notice of hearing;

  • Amended notice of hearing; and

  • Notice of supplemental hearing.

3. Waivers

  • Waiver of advance notice of hearing;

  • Waiver of claimant/representative's right to examine additional evidence; and

  • Waiver of claimant's right to be represented at a hearing.

4. Qualifications

  • Medical expert's professional qualifications; and

  • Vocational expert's professional qualifications.

5. Orders/Decisions

  • ALJ order establishing good cause for untimely filing;

  • ALJ decision;

  • AC order remanding case to an ALJ;

  • AC or ALJ response to a request for reopening;

  • AC order admitting additional evidence into the record;

  • AC action or decision; and

  • AC order or letter extending the time to file a civil action.

6. Correspondence from Between the Date of the Request for Hearing and the AC's Last Action on the Request for Review

  • Letter(s) between the ALJ or AC and the claimant or the claimant's representative;

  • Letter(s) from the claimant or the claimant's representative erroneously addressed — e.g., sent to another component but intended for the ALJ or the AC;

  • Letter(s) written on behalf of the claimant, such as from the spouse;

  • Letter(s) from a Member of Congress, if the member is acting as representative for the claimant or submitting new evidence on behalf of the claimant;

  • Cover letter(s) for briefs, memoranda, or depositions submitted by the claimant's representative (such letters are usually considered part of the document they forward and are referenced in the index);

  • Letter(s) from the Social Security Administration (SSA) to the claimant concerning payment or cessation of payment;

  • Letter(s) to the vocational expert or medical expert who appeared at the hearing;

  • Letter(s) to or from medical sources or facilities, if a copy was furnished to the claimant or the claimant's representative; and

  • Subpoena(s) to witness(es) and the witness's response, if available.

7. Additional Evidence Discovered Either in the File or in Newly Associated Correspondence

  • Additional evidence that was received at the initial, reconsideration, or hearing level but was not exhibited (see HALLEX I-4-4-25); and

  • Additional evidence that was received at the AC level before the AC's last action on the request for review (see 20 CFR 404.976(b) and 416.1476(b) and HALLEX I-4-4-25).

C. Non-Exhibited Material Not Normally Included in the Procedural Section

In reviewing the non-exhibited material, the court legal assistant must consider material that is not normally included in the procedural section. The following documents from the non-exhibited material should not be associated with the file:

  • Congressional correspondence (unless the Member of Congress acts as representative for the claimant or submits new evidence);

  • Correspondence with the Commissioner of Social Security;

  • Representative fee petitions or correspondence solely regarding representative fees, waiver of fees, etc.;

  • Disability Determination Service correspondence (unless SSA sent a copy to the claimant or the claimant's representative);

  • Envelope transmitting correspondence (unless it is essential to establish a mailing date);

  • Internal memoranda, reports of contact(s) other than those listed in subsection B.1. above, worksheets, or memoranda for the file;

  • Documents inadvertently added to the file that are associated with a subsequent claim; and

  • Additional evidence received after the AC denied the request for review, dismissed the request for review, issued a decision, or declined to assume jurisdiction because this evidence was not submitted while the claim was pending before the agency.

NOTE:

The court legal assistant will resolve any question of whether to include an item by consulting with the branch chief.

D. Assembling the Procedural Documents

For the procedural documents in the CAR, the court legal assistant will:

  • Assemble and index documents in reverse chronological order;

  • List documents that the ALJ or AC enters as exhibits on the index to the administrative record with a cross-reference to each exhibit; and

  • Use the best copy of any material.

E. A Limited Certified Administrative Record

For cases in which the AC issued a dismissal order, the court legal assistant will prepare a limited CAR. The limited CAR must include anything that relates to the procedural history of the case (e.g., the timeliness of the request for review) to ensure that the Federal court will be able to determine whether the AC's dismissal action was justified.

The limited CAR will include the following documents, if available:

  • Application for Disability Insurance Benefits and/or Supplemental Security Income

  • Notice of Initial Determination;

  • Request for Reconsideration;

  • Notice of Reconsideration;

  • Request for Hearing;

  • Statements and correspondence regarding good cause;

  • Any returned mail or notifications of an address change;

  • Correspondence between the hearing office and claimant or appointed representative, if any;

  • Transcript of oral hearing, if an oral hearing was held;

  • ALJ Decision or Order of Dismissal;

  • Request for Review of ALJ Decision or Order of Dismissal;

  • Any additional statements or correspondence relating to good cause;

  • AC notice on the request for review; and

  • Correspondence between the AC and the claimant or appointed representative, if any, subsequent to the AC denial of review.

The court legal assistant will assemble and index documents in reverse chronological order; list documents identified above on the index to the limited CAR with a cross-reference to each document; and use the best copy of any material.

Additionally, the court legal assistant will prepare a certification page and modify the language to state that the documents “constitute a full and accurate transcript of the proceedings relating to the dismissal in this case.”