I-4-4-13.OAO Branch Actions When Claimant Files Timely Exceptions

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

A. Case Assignment

All cases in which timely exceptions are filed will be assigned to a senior analyst in the Disability Program Branch, or RSI/SSI Branch, as appropriate. The OAO analyst reviews the court order or stipulation for remand, the entire case, the exceptions (and any new evidence submitted) to determine whether to recommend that the AC assume jurisdiction of the case. When reviewing the case, the analyst must first determine whether the ALJ complied with the court's order. The AC ordinarily will not assume jurisdiction if it concludes that the ALJ's decision fully complies with the court's and the AC's remand orders and that the deci­sion does not require modification, i.e., it is supported by substantial evidence, does not contain an error of law and the ALJ did not abuse his or her discretion.

B. Recommendation that AC Assume Jurisdiction and Issue a Decision or Remand Case to ALJ (see HALLEX I-4-4-101, Summary of AC Notice Requirements).

1. If recommending that the AC issue a decision, the analyst will prepare a case analysis explaining why the AC should assume jurisdiction (see I-4-4-102).

  1. If the recommendation involves a fully favorable AC decision, the analyst will also prepare the decision and route the case with the analysis and decision in accordance with the routing instructions contained in I-4-4-104.

  2. If the recommendation involves a partially favorable or unfavorable AC decision, the DPB or RSI/SSI staff will:

    • Prepare a notice (see notice in DGS Text, CREV 22 at II-6-9-1) to explain why the AC is taking jurisdiction, advise the claimant of the action the AC proposes to take and route the case with analysis and notice in accordance with the routing instructions contained in I-4-4-104.

    • After the AC releases the notice of proposed action, diary the CF to await the receipt of a brief or other written argument.

    • Act on the case at the completion of the diary or when the material is received, which­ever is earlier.

    • Prepare a supplemental analysis, if needed.

    • Prepare a decision and an appropriate sentence 4 or sentence 6 cover notice, or a remand order as the facts warrant, responding to any relevant arguments submitted; and because fully or partially favorable and unfavorable AC decisions are routed differently, the routing instructions in I-4-4-104 must be carefully followed so that all required actions on these cases can be completed on a timely basis.

NOTE:

Partially favorable AC decisions on sentence 6 cases may require special handling. If the civil action will be pursued, it will be necessary to route the files to the CCPRB for preparation of the supplemental CAR before the files are released to the effectuating component.

2. If recommending that the AC remand the case to an ALJ, the analyst will prepare a case analysis explaining why the AC should assume jurisdiction and why the case should be remanded (I-4-4-102).

  1. If the ALJ issued a favorable or partially favorable decision and the AC assumes jurisdiction to consider an issue(s) with respect to any favorable aspect of the decision which was not raised in the claimant's exceptions, the DPB or RSI/SSI staff will:

    • Prepare a notice (see notice in DGS Text, CREV 23 at II-6-9-2) to explain why the AC is taking jurisdiction, advise the claimant of the action the AC proposes to take and route the case and notice in accordance with I-4-4-104.

    • After the AC releases the notice of proposed action, diary the CF to await the receipt of a brief or other written argument.

    • Act on the case at the completion of the diary or when the material is received, which­ever is earlier.

    • Prepare a supplemental analysis, if needed.

    • Prepare a remand order (see sample in DGS Text, CREM 45 or 46) and the notice transmitting the remand (see DGS notice CREM 01 at II-6-7-1).

  2. If the ALJ decision was unfavorable (or the AC assumes jurisdiction to consider the unfavorable aspect of a partially favorable ALJ decision or an issue raised in the claimant's exceptions), prior notice is not required and a remand order (see sample in DGS Text, CREM 45 or CREM 46) and notice transmitting the remand (see DGS notice CREM 01 at II-6-7-1) should be prepared and routed in accordance with I-4-4-104. Prior notice may be sent, as in section a., at the AC's discretion..

NOTE:

Court remand case flags are prepared by CCPRB staff when the file is released to the HO.

C. Recommendation That AC Not Assume Jurisdiction

  1. If recommending that the AC not assume jurisdiction, the analyst will:

    1. Prepare a case analysis explaining why the AC should not assume jurisdiction (see I-4-4-102). The analyst must address all exceptions and explain why the exceptions do not warrant further action by the AC.

    2. Prepare a notice to advise the claimant that the AC has considered the exceptions and has decided not to assume jurisdiction (see notices in DGS Text, CDEN 21A or CDEN 21B at II-6-8-3 and II-6-8-4, respectively). The notice must include an adequate explanation as to why the excep­tions do not warrant a change in the ALJ's decision. Cite pertinent evidence in the record, testimony or rationale provided by the ALJ as it relates to the exceptions. Do not attempt to alter the ALJ's findings or conclusions in the notice. If additional evidence is submitted, it should be entered into the record using the same procedures as in request for review cases. The new evidence must be discussed and the notice must explain why it does not warrant any change in the hearing decision.

NOTE:

Branch Chiefs must review actions on all ALJ decisions after court remand.