I-4-4-100.Exhibit - Memorandum dated June 20, 1997 Concerning Recording Audit Requirements

Last Update: 9/13/05 (Transmittal I-4-15)

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SOCIAL SECURITY

MEMORANDUM

Refer To: TAHB

Date: June 20, 1997

To: See Below

From: Acting Deputy Chairman Appeals Council

Subject: Cassette Audit Requirements — ACTION

The purpose of this memorandum is to restate the cassette audit requirements with respect to expert witness testimony and announce another temporary change in audit requirements. The procedures set forth below apply to request for review, own motion and reopening situations. These temporary measures are precipitated by the increased workloads in the Office of Appellate Operations and concerns about the need to expedite processing cases at the Appeals Council level.

EXPERT TESTIMONY

The present instructions in HALLEX I-3-1-52 B. provide that analysts must audit all expert witness testimony. Because our experience under this procedure suggests that the accuracy of hearing decision summaries of expert witness testimony is usually substantiated by analyst audit, in March 1995 we began temporarily to follow an expert witness cassette audit requirement geared to the individual facts and situation of the claim being reviewed. Within the parameters of the following guidelines, analysts were and continue to be authorized to exercise discretion in determining when expert witness testimony must be audited.

A full audit of the expert witness testimony is still required when the claimant or representative raises a specific contention regarding expert witness testimony or the Administrative Law Judge's treatment of that testimony. Similarly, audit is still necessary when the decision rationale contains no discussion of the expert witness testimony or the discussion provided is not sufficient to deter­mine a specific aspect(s) of such testimony. When reviewing appeals from pro se claimants, analysts must consider the claimant's ability to articulate contentions (e.g., literacy, level of education, or presence of a mental impairment which may affect the claimant's ability to pursue his or her claim) in determining whether to audit the expert witness testimony. Of course, an Administrative Appeals Judge or Appeals Officer may still request an audit in any case in which he or she considers it necessary.

OWN MOTION OR REOPENING TO REMAND

Under the present cassette audit requirements described in HALLEX I-3-1-52 A., analysts must audit the entire hearing tape in unappealed cases and protest cases when recommending that the Appeals Council take review on its own motion to remand. The current requirements to audit the entire hearing tape in these cases is being temporarily supplanted with one patterned after that described above for expert testimony. Effective immediately, when the Appeals Council decided to take review on its own motion or reopen a hearing decision and the Council proposes to remand the case, the analyst must audit the hearing tape(s) to the extent necessary to advise the Council whether the hearing proceedings raise any issues (s) with respect to the proposed remand.

Of course, an Administrative Appeals Judge may still request an entire audit in any case in which he or she considers it necessary.

ENTIRE AUDIT

This temporary instruction does not alter the remaining cassette audit requirements described in HALLEX I-3-1-52 A. Analysts must still audit the entire hearing tape:

  • in unappealed cases and protest cases when recommending that the Appeals Council take review on its own motion to issue a less favorable decision;

  • in request for review cases involving an allegation of bias or an unfair hearing;

  • in request for review cases when recommending that the Appeals Council grant review to issue a less that fully favorable decision.

SPOT AUDIT

Analysts should continue to perform a spot audit to insure that the oral hearing record is audible when preparing a recommendation to grant review and remand (HALLEX I-3-1-99, Exhibit).

These instructions supersede the cassette audit instructions contained in earlier memorandum dated April 11, 1994 and March 16, 1995, and my NOTE dated June 27, 1996.

Review notices have been revised to more accurately reflect our consideration of hearing testi­mony or, where appropriate, our anticipated review of hearing testimony. The updated hardcopies of the following notices are attached:

Temporary REV 20

Paragraph 7

Temporary REV 21

Paragraphs 4A, 6A and 7

Temporary REV 30

Paragraph 7

Temporary REV 31

Paragraphs 4, 6 and 7

Temporary REV 32

Paragraph 10

The revised macros have been loaded. Questions and suggestions regarding the text should be addressed to the Appeals Council Text Committee. Questions regarding operation of the macros should be address to your COSA.

/s/

Andrew E. Wakshul

Addressees:

Administrative Appeals Judges

Appeals Officers

Program Review Branch Chiefs

Hearing and Appeals Analysts