I-2-8-13.Use of Proposed Language Supplied by Claimants and Representatives in Preparation of Fully Favorable Decisions
Last Update: 8/7/09 (Transmittal I-2-78)
A. Office of Disability Adjudication and Review (ODAR) Policy
ODAR makes available to all claimants and claimant representatives uniform procedures and guidelines on the submission of proposed decisional language. Use of these procedures is based on the voluntary participation of the claimant or claimant representative, who may submit proposed decisional rationale and proposed findings of fact and conclusions of law in any case and at any time in the hearing process beginning with the filing of the request for hearing and extending through any post hearing time limit set by the Administrative Law Judge (ALJ). Unrepresented claimants may submit proposed decisional language on their own behalf or may use the assistance of an advocate for this purpose.
SSA has also issued regulations which permit the ALJ to issue bench decisions. In this process, ALJs make verbal findings of fact and conclusions of law on the record, and also use a checksheet which is made an exhibit in the administrative record. Claimants and representatives may submit a proposed checksheet that contains proposed decisional rationales and proposed findings of fact and conclusions of law in any case which is proper for a bench decision. (See 20 CFR §§ 404.953(b), 416.1453(b); I-5-1-17.)
I-2-8-98 contains an informational flyer which briefly describes the process and ODAR's requirements for submitting decisional language or proposed checksheets to be utilized in the ALJ issuance of bench decisions. The flyer may be duplicated and mailed to claimants and representatives to ensure that they are apprised of ODAR's policy on submitting decisional language or proposed checksheets. It should also be made available to claimants and representatives along with other bulletins, booklets and notices routinely displayed in each HO's waiting room.
Representatives are not to be required to submit proposed narrative rationale, findings of fact, or conclusions of law for use in a decision or for use in the proposed oral bench decision checksheet. ODAR policy permits ALJ use of proposed decisional language or proposed checksheets submitted voluntarily by claimant representatives as part of their on-going representational responsibilities but these submissions should follow the format in the Findings Integrated Template (FIT) initiative described in I-2-8-98.
B. Guidelines for Applying ODAR Policy
Making use of narrative rationales, findings of fact, conclusions of law, or checksheets submitted by a claimant or representative is permitted when the findings of fact and conclusions of law are the product of the conscientious and independent judgment of the ALJ, and the written rationale supports the findings and decision. In the case of a bench decision, the verbal rationale and checksheet must support the verbal findings of fact and conclusions of law. The actual decision in the matter remains that of the ALJ. The ALJ must ensure that the rationale, findings and conclusions are accurately reflected in the final written decision.
In order to receive maximum benefit from the use of these practices:
HOs should encourage claimants and representatives, who wish to do so, to provide proposed decisional language in FIT format (see I-2-8-98 Exhibit).
Finding DAA a contributing factor material to the determination of disability precludes a fully favorable decision.
SSA makes the FIT template available to claimants and representatives wishing to submit proposed language.
In those cases where claimants or representatives submit proposed decisional language on CDs, appropriate measures must be taken to protect the HO computer systems from potential damage caused by the use of nongovernmental software (e.g., exposure to computer viruses) and ensure the protection of personally identifiable information.
Any practice of using language from claimants or representatives in the preparation of ALJ decisions must be implemented within the following guidelines:
The process is voluntary for both the claimant or the representative and the ALJ. An ALJ may not order any claimant or representative to submit a proposed decision. Moreover, an ALJ is not required to use language from a claimant or representative, or provide reasons for not using such language, in a decision in any case.
The proposed decisional language may be received at any time and at any stage of the proceeding, beginning with the filing of the request for hearing and extending through any post hearing time limit set by the ALJ.
The final ALJ decision, in which language proposed by a claimant or representative is used, must comport with ODAR's existing instructions with respect to format and legally sufficient rationale and findings.
Any practice of using language from claimants or representatives in the preparation of a proposed checksheet to be used in conjunction with the issuance of an oral bench decision must adhere to the guidelines set forth in I-5-1-17.