I-3-5-40.Preparation of a Denial Notice

Last Update: 9/08/05 (Transmittal I-3-36)

A. General

The general format for denial notices is set forth in the Appeals Text Guide. That section provides guidance on the consideration of additional evidence, response to contentions and inclusion of appropriate court review paragraphs.

B. Drafting a Denial Notice

The analyst must prepare the notice. The analyst must identify:

  • the name and current address of the claimant and representative, if any;

  • the proper denial shell;

  • the appropriate stored paragraph(s) to be inserted, if any;

  • any variable fill-ins;

  • any original rationale or discussion to be inserted;

  • any modifications to be made to the standard material;

  • any documents which are to be enclosed with the notice; and

  • any translation or Spanish notice instructions.

NOTE:

In the denial notice, do not make substantive findings or changes in the hearing decision (e.g., insured status or residual functional capacity). Make only “ministerial” corrections (e.g., of a typographical error, incorrect date or exhibit number). Exercise great care to avoid any appearance of making a substitute finding or otherwise revising the Administrative Law Judge's decision in any way in the denial notice. The Appeals Council should cite pertinent rationale provided by the Administrative Law Judge and can elaborate on that rationale; however, the Council may not supply completely missing rationale or alter any findings or conclusions. In short, the Appeals Council may not amend, modify or change anything of substance in the Administrative Law Judge's decision except by granting the request for review and issuing a decision.

C. Special Situations

1. Notice for Spanish-speaking Persons

Identify the need to communicate in Spanish according to the criteria in I-3-1-60 B. and C. If the file demonstrates a need for Spanish communication, the analyst must prepare the Spanish informational notice in denial of request for review cases. Transmit all English denial notices by Spanish language notice. It informs the claimant that the notice of Appeals Council action on the request for review is enclosed, that the Council has concluded there is no basis for review, and that the claimant has the right to commence a civil action in cases involving an ALJ decision.

Prepare an appropriate notice of denial of a request for review of an ALJ's decision in English in accordance with usual procedures. The Spanish notice will be attached as a cover to the English notice and both notices will be mailed to the claimant and the representative, if applicable.

The Spanish notice contains the claimant's name, claim number(s) and a date (i.e., a date stamp indicating the release date). It contains no salutations or signatures.

The appropriate Spanish notice must be used to transmit a denial of a request for review of an ALJ's dismissal because there is no right to commence a civil action under the Social Security Act (the Act). See the Appeals Text Guide for selection of the appropriate Spanish cover notice in this situation.

NOTE:

In the 11th Circuit, the claimant has a right to a civil action in dismissal situations under Acquiescence Ruling (AR) 99-4 (11). See Appeals Text Guide for the appropriate notice in such situations.

2. Claimant Resides in Foreign Country

  1. Section 205(g) of the Act provides that a civil action may be brought “in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the District Court of the United States for the District of Columbia.” Therefore, when a claimant resides in a foreign country, the court review paragraph must be modified to inform such individual that a civil action may be commenced in the U.S. District Court for the District of Columbia, or, if applicable, in the judicial district of the United States where the claimant has his or her principal place of business.

  2. Because U.S. District Courts serve Puerto Rico, Guam, the Northern Mariana Islands, and the Virgin Islands, individuals living in these jurisdictions are not considered “foreign residents” for the purpose of judicial review and are provided the regular court review paragraph.

  3. If a claimant resides in a foreign country, the usual court review paragraph should be replaced with a stored paragraph. (See Appeals Text Guide.)

  4. The analyst will also note on the route slip “AIR MAIL—FOREIGN CLAIM” whenever the notice is to be sent to a claimant residing in a foreign country.

D. Typing and Proofreading

The analyst will type and proofread the notice. If it is accurate, forward the file with the denial notice and recommendation to the Appeals Council for approval.

E. Administrative Appeals Judge's / Appeals Officer's Actions

  1. The AAJ or AO will review the proposed action which the analyst prepared.

  2. The AAJ may return the case to the analyst for further analysis, revision, or preparation of a different action.

    NOTE:

    If the Administrative Appeals Judge wishes to take a different action which requires the signature of two AAJs, the AAJ will obtain the concurrence of the “B” AAJ before returning the case to the analyst.

  3. If the AO disagrees with the recommendation, the case will require the concurrence of the AAJ before returning the case to the analyst.

  4. In denial situations, if the AAJ or AO approves the recommendation, the AAJ or AO will sign the denial notice and initial and date the analysis.

  5. The Appeals Council support staff will release the denial notice to the claimant and a copy to the representative, if any, and return the claim file to the OAO branch for retention in the branch mini-dockets.