I-3-7-40.Preparation of Remand Order
Last Update: 10/24/14 (Transmittal I-3-79)
A remand order serves two purposes:
The Appeals Council (AC) remand order instructs the administrative law judge (ALJ) what action(s) to take and why the action(s) is necessary; and
The remand order communicates information to the claimant.
Therefore, in addition to providing precise, comprehensive, and accurate information and instructions to the ALJ, it is also necessary to draft language from the claimant's perspective.
B. Drafting Remand Orders
Templates for remand orders and stored paragraphs are available in the Document Generation System (DGS). These templates and paragraphs can be modified as necessary to reflect the facts of each individual case.
In title XVI and concurrent title II/title XVI remand cases involving medical cessation under 20 CFR 404.1597a and 416.996, DGS contains a payment status request with transmittal documents to send to the servicing field office (FO) as well as a transmittal to send to the hearing office (HO) with the remand order that notifies each of potential payment continuation (see Program Operations Manual System (POMS) DI 12027.065). The analyst will complete these documents when preparing the remand order in DGS. For electronic cases, the analyst should add a remark in eView in the Alerts and Messages section, stating “Potential Continued Disability Payments Pending Readjudication,” and follow the Appeals Council Electronic Signature and Central Print Training and Resource Guide, Appendix 1, for an e-Sign workaround.
In title II only medical cessation cases under 20 CFR 404.1597a, the HO has responsibility for notifying the servicing FO of potential payment continuation upon receipt of the AC remand (see POMS DI 12027.060). However, the AC must notify the HO of the potential payment continuation. For paper claims files, the analyst should use DGS to prepare a “Misc 505 Transmittal” addressed to the hearing office director and indicating that the case is a “Potential Benefit Continuation Case.” For electronic claims files, the analyst should add a remark in the Alerts and Messages section, stating “Potential Continued Disability Payments Pending Readjudication.”
1. Rules for drafting remand orders
Analysts will draft remand orders following these rules:
Focus attention on the decision or dismissal under review, rather than on the ALJ who wrote it. Do not dwell on the ALJ's “failures” or “errors” in such a way that could possibly undermine his or her authority in future dealings with the claimant and the representative.
Refer to the claimant in the third person, e.g., as “the claimant,” rather than in the second person, as the AC does in denial notices.
Use the active voice, if possible.
Use words that are simple and precise, if possible.
Omit surplus words.
Use legally correct terms.
Do not use agency jargon, if possible.
Set forth the reasons for the remand and the instructions for further action clearly and concisely. Avoid rationale language that broadly suggests what is required but is not specific enough to help the ALJ.
Specify what evidence is needed and why.
Cite pertinent conflicts in the record.
Follow current instructions on pertinent circuit case law. If the hearing decision did not adequately respond to issues that are of particular concern in that circuit, the analyst must specify those relevant issues in the remand order.
Identify any new and material evidence submitted by the claimant to the AC and that is a basis for the remand.
Remember that correct spelling and grammar are important to all readers. Proofread the remand order before forwarding it to the AC for review.
2. Additional Considerations
AC ordinarily assigns remand orders to the same ALJ who issued the decision or dismissal (see Hearing, Appeals and Litigation Law manual I-2-1-55).
This policy will not apply when the AC directs assignment of the case to a different ALJ, for example the AC finds an abuse of discretion or the case would be remanded a second time to the same ALJ.
In specific circumstances, the AC remand order will direct the ALJ to hold a new hearing. Even if the AC does not direct the ALJ to hold a new hearing on remand, the AC remand order must direct the ALJ to offer the claimant an opportunity to appear at a new hearing whether or not the claimant previously waived an oral hearing.
In title II disability claims in which the period at issue expired before the date of the hearing decision (e.g., insured status expired in a disabled worker claim or the claimant reached age 22 in a childhood disability claim), the remand need not instruct the ALJ to offer the claimant the opportunity for a hearing unless the ALJ finds that the facts warrant it.
Forward the file with the recommendation and remand order package (e.g., remand order, cover letter, and route slip) to the AC for approval.