I-2-1-85.Clarification of Appeals Council Remand Orders
Last Update: 1/14/13 (Transmittal I-2-87)
An administrative law judge (ALJ) may seek clarification of an Appeals Council (AC) remand order only when the ALJ cannot carry out the directive(s) set forth in the order, or the directive(s) appears to have been rendered moot. ALJs may not seek clarification of AC remand orders under any other circumstances.
There are two types of clarification requests: expedited clarification requests and formal clarification requests. Expedited clarification requests are used only when the sole reason for remand is a missing claims folder or missing hearing recording, or both, and the folder or recording is subsequently found. Formal clarification requests apply in all other circumstances.
The AC will not vacate a remand order after a new hearing has been held.
B. When Clarification May Be Appropriate
Clarification may be appropriate when the ALJ cannot carry out the directive(s) set forth in the order.
The following circumstances may fall into this category:
The directive(s) violates law or agency policy, or carrying out the directive(s) may require the ALJ to violate law or agency policy.
An ALJ may not request clarification for this reason when a federal court issued the directive(s).
An ALJ may not request clarification in one case based on possible conflicting instructions from the AC in another case. However, if it appears the AC is regularly issuing conflicting instructions on a specific policy issue, an ALJ should notify the Regional Chief Administrative Law Judge (RCALJ) of the issue via email, briefly summarizing the issue, and providing specific case examples. The RCALJ will not consider referrals without specific examples.
If the issue merits further consideration, the RCALJ will refer the issue to the Division of Field Procedures in the Office of the Chief Administrative Law Judge (OCALJ). As warranted, OCALJ will refer the issue to the Office of Appellate Operations (OAO).
The directive(s), if followed, would cause inordinate delay in a claim or be unnecessarily burdensome.
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.
An ALJ may not request clarification merely because a remand order has a factual or clerical error. Disagreement with an aspect of the remand order does not constitute a factual error. The error must be substantive and directly related to a specific directive(s). For example, a substantive factual or clerical error directly related to a specific directive exists when the sole basis for the AC remand is for the ALJ to consider the findings of a prior ALJ decision, but no prior ALJ decision was issued.
Beginning July 24, 2012, ALJs may use the remand feedback initiative to refer AC remands that can be processed, but are unclear, questionably policy compliant, or, while technically correct, contain insignificant errors that would not likely result in a federal court remand.
The following are examples of valid clarification requests under this provision:
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 confinement 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. There is no otolaryngologist in the area servicing the hearing office (HO).
The following are examples of clarification requests that are not valid under this provision:
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.
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).
Clarification may be appropriate when the directive(s) appears to have been rendered moot.
In some instances, a change in circumstance or an error of fact may make a directive(s) obsolete. The following are examples of valid requests for clarification under this provision:
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 hearing office discovers a clerical error resulted in an incorrect digit in the SSN when it was entered into the Case Management and Processing System (CPMS). The hearing office has now corrected the error.
C. Procedure to Request Formal Clarification
There are two distinct steps in requesting formal clarification. First, an ALJ must obtain the necessary approvals. Second, if the necessary approvals are obtained, the ALJ may then request clarification of a remand order from the AC.
An ALJ obtains approval as follows:
In writing (via email or fax), the ALJ or designated HO staff requests concurrence from the RCALJ as soon as possible after receiving the AC remand order and the claim file(s).
ALJs and HO staff should not directly contact the Administrative Appeals Judges who signed and issued the remand order.
If the RCALJ agrees the clarification request is valid, the RCALJ, or a Regional Office (RO) staff designated by the RCALJ, will request concurrence, in writing, from the Chief Administrative Law Judge (CALJ) as soon as possible after receiving the ALJ's request. The RCALJ may submit the request to the Director of the Division of Field Procedures (DFP) in OCALJ in writing via fax at (703) 605-8501, or email at ¦¦¦ODAR OCALJ DFP.
If the RCALJ does not agree a clarification request is valid, the RCALJ will inform the ALJ of the decision in writing (via fax or email) as soon as possible so the hearing can proceed.
The CALJ will approve or disapprove the clarification request and inform the RCALJ or designee of the decision in writing via email as soon as possible after the Director of DFP received the RCALJ's request for concurrence. After OCALJ informs the RCALJ or designee of the decision, the RCALJ or designee will inform the ALJ of the decision in writing by email or fax.
Once approval is obtained, the ALJ or designated HO staff may request clarification from the AC by taking the following actions:
Prepare a written request to the AC that includes the claimant's full name, Social Security number, and the following statement at the beginning of the clarification request, “The Chief Administrative Law Judge has approved this request for clarification of an Appeals Council remand order.”
The AC will not accept clarification requests that have not been approved by the CALJ.
In written correspondence, notify the claimant and any representative of the clarification request. File this documentation in the paper claim file or upload the notification in the certified electronic folder (CEF) before sending the request to the AC.
The AC generally will not accept clarification requests without corresponding documentation that the claimant and representative, if any, have been notified of the request.
Send the approved clarification request to the AC via email at ¦¦¦ODAR OAO, with the subject line “Formal Motion for Clarification,” followed by the claimant's last name. The email should include any prior emails from the offices of the RCALJ and CALJ.
In paper cases, the email should clearly state the case is paper. An email response from OAO is required before a paper file may be sent to the AC. If the HO has not received any response to the email within 3 weeks, a follow-up email may be sent to ¦¦¦ODAR OAO, with “Second Request” added to the subject line.
If the AC indicates the paper file should be sent, attach a copy of the AC's email to the front of the paper file and mail the file to:Executive Director, Appeals Council
Office of Disability Adjudication and Review
Attn: Formal Motion for Clarification
5107 Leesburg Pike, Suite 1400
Falls Church, VA 22041-3255
A request for the paper file does not necessarily mean the AC will approve the clarification request.
The AC will respond to the ALJ in writing as soon as possible after receiving the clarification request. Depending on the circumstances, the AC may attach a response in an email to the ALJ, RCALJ, and OCALJ, but will send paper copies of the response via regular mail to the claimant and representative.
D. Procedure to Request Expedited Clarification
An ALJ may request expedited clarification when the sole reason for remand is: (1) a lost or missing claims folder, a missing recording, or both, and (2) the folder or recording is subsequently found.
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 following procedures may be used.
If a remand order for these reasons also includes any other reason for remand, expedited clarification is not appropriate.
In these limited circumstances, request expedited clarification using the following procedures:
For paper cases, the Hearing Office Director (HOD), Group Supervisor (GS), or other HO management official will determine that all exhibits are in the original file and are marked. When the recording of the hearing is located, the HOD, GS, or other HO management official must ensure the recording is completely audible.
In a CEF case, HO staff must ensure the digital recording of the hearing is uploaded to the CEF and the CEF recording is completely audible.
The AC will decline a motion for clarification if the HO submits a CD copy of a recovered recording for a CEF. A CEF is incomplete without an official hearing recording uploaded to the Multimedia Files section. If the recording is completely audible but the recovered digital recording cannot be uploaded to the CEF, the HO cannot use the expedited clarification process unless the 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 claims file, attach a CD copy of the recording, and send the entire paper claims file with the CD to the AC (after following the remaining instructions below).
It is not anticipated that claims will be remanded for a lost or missing claims folder in a fully electronic case. However, should this be the only reason for remand in a CEF, HO staff may use the procedures noted below to notify OCALJ. These referrals will be handled on a case-by-case basis, and appropriate instructions will be given to the HO.
If the claim was remanded from a federal court, the HO must also obtain a written statement from the attorney who represented the claimant in federal court, or from the claimant, if he or she was unrepresented (pro se) in court. This written statement will indicate that the representative or claimant agrees the AC remand should be vacated because the lost file or the lost hearing recording was found. A sample statement is included in section E below. If the attorney, or claimant appearing pro se, does not agree, the expedited clarification process cannot be used and a new hearing must be provided.
Once step 1 or 2 is completed (and 3, when applicable), the HOD, GS, or other HO management official should submit the expedited clarification request to OCALJ via fax or email, addressed to the Branch Chief of the Field Practices Branch (FPB), Division of Field Procedures. Faxed requests should be sent to (703) 605-8501, and email requests to ¦¦¦ODAR OCALJ DFP.
The request must include both:
A statement indicating it is an expedited request for clarification in which the sole issue on remand is a lost file, lost recording of the hearing, or both. In all cases, paper or CEF, the statement must certify the file is complete, the exhibits are marked, and the hearing recording is completely audible; and
A copy of the AC remand order.
On receipt, OCALJ will evaluate the request to determine if it is appropriate for expedited clarification, and will issue a memorandum via email to the HO, agreeing or disagreeing with the request.
If OCALJ agrees with the request and a CEF is involved, the HO will email a copy of the memorandum to ¦¦¦ODAR OAO, with subject line “Expedited Clarification.” Do not include the claimant's SSN in the subject line.
If OCALJ agrees with the request and a paper claim file is involved, the HO will send a copy of the memorandum, with the claims file, to:Executive Director, Appeals Council
Office of Disability Adjudication and Review
Attn: Expedited Motion for Clarification
5107 Leesburg Pike, Suite 1400
Falls Church, Virginia 22041-3255
If OCALJ disagrees with the request, the HO will proceed with the hearing.
In all cases, the HO must receive notification from the AC that the remand order is vacated before the HO can clear the remand from its docket. If it has been more than 30 days since the HO sent the request (and paper file, as applicable) to the AC, the HO may request a status update by sending an email request to ¦¦¦ODAR OAO, subject line “Follow Up- Expedited Clarification.” Do not include the claimant's SSN in the subject line.
The email must include:
the claimant's name and SSN,
the date of the prior request or, in paper cases, the date the paper folder was sent to OAO,
a copy of the emailed OCALJ memorandum approving the request,
a request for status, and
the name of the HO contact person.
E. Expedited Clarification- Sample Statement when a Claim is Remanded by a Federal Court
STATEMENT BY REPRESENTATIVE OR CLAIMANT
AGREEING TO VACATION OF APPEALS COUNCIL REMAND ORDER
I am the attorney of record/claimant (circle one) in the above entitled civil action. An order of remand was entered because the claim folder/hearing recording (circle one or both) could not be located and a certified administrative record could not be prepared. The claim folder/hearing recording (circle one or both) was subsequently located.
I agree to the vacation of the Appeals Council's Order of Remand.
Representative or Claimant Signature
Representative or Claimant Name (Typed or printed)
Representative or Claimant Address