I-5-3-18.Elimination of Decision Review Board (DRB) and Related Hearing Level Processing Changes

Table of Contents
I Purpose
II Background
III Hearing Office Procedures
IV Decision Review Board (DRB) and Office of Appellate Operations (OAO) Procedures
V Inquiries
VI Attachments-Notices

Issued: June 9, 2011

I. Purpose

This Temporary Instruction (TI) provides guidance for eliminating review by the Decision Review Board (DRB) and related hearing level processing changes in the Boston Region (comprised of the States of Maine, New Hampshire, Vermont, Rhode Island, Massachusetts, and Connecticut).

II. Background

On March 31, 2006, the Commissioner of Social Security published the final rules for the creation of the Disability Service Improvement (DSI) process (20 CFR Part 405), which became effective August 1, 2006. Beginning on March 23, 2008, the Commissioner of Social Security suspended processing new claims through the second step of the DSI process (review by a Federal Reviewing Official), but retained the hearings and DRB provisions of Part 405. 73 FR 2411, revised at 73 FR 10381. On December 4, 2009, the Commissioner of Social Security published a notice of proposed rulemaking which, among other things, eliminated the DRB. The final rule eliminating the DRB was published on May 3, 2011, and the change is effective on June 13, 2011 (76 FR 24802), which the guidance in this transmittal will refer to as the “effective date.”

Beginning on the effective date, the DRB is eliminated, and the Boston Region will use most of the same rules and procedures followed by the rest of the country at the Appeals Council (AC) level under 20 CFR Part 404 and Part 416. Like the rest of the country, appellate review at the AC level will be the final step in the administrative review process in the Boston region. The final rules apply to all new disability claims and to all cases pending in the administrative review process, including cases remanded by courts.

III. Hearing Office Procedures

As of the effective date, cases at the hearing level will continue processing under 20 CFR Part 405. However, due to the elimination of the DRB, there will be some minor processing changes at the hearing level. Most significantly, hearing office decisions or dismissals will now explain the finality of the decision, and provide instructions to appeal to the AC if a party disagrees with the decision or dismissal. Additionally, certain attorney advisors in the Boston region will have the authority to issue fully favorable decisions on the record under 20 CFR 405.342, as other attorney advisors do in the rest of the country under 20 CFR Part 404 and Part 416.

A. Identifying and Notifying claimants affected by the change

We will notify claimants whose appeal rights may be affected because their requests for hearing were dismissed before the effective date but their time to appeal has not yet expired.

The Office of the Chief Administrative Law Judge (OCALJ) will run a workload list of all dismissals issued 35 days, 30 days plus 5 days for receipt of notice, prior to the effective date in order to notify these individuals. A copy of the notice (Attachment 1) will be associated with the claimant's folder.

OCALJ will also run a workload list of all denials of requests to vacate a dismissal issued 65 days, 60 days plus 5 days for receipt of notice, prior to the effective date in order to notify these individuals. A copy of the notice (Attachment 1) will be associated with the claimant's folder.

B. Dismissals

When an ALJ dismissed a request for hearing prior to the effective date, the claimant had the right to ask the ALJ in writing to vacate the dismissal within 30 days of receipt of the dismissal (20 CFR 405.382). The claimant had 60 days from receipt of the ALJ's ruling on the request to vacate to ask the Decision Review Board (DRB) to vacate the dismissal (20 CFR 405.427).

Elimination of the DRB requires that we make changes to the way a claimant can appeal a dismissal of a request for hearing. On or after the effective date, if an ALJ dismisses a request for hearing, the claimant has the right to request, within 60 days after receiving notice of dismissal, that the ALJ or the Appeals Council (AC) vacate the dismissal (20 CFR 405.381 and 405.383).

To protect those individuals whose appeal rights may be affected after the rules change, OCALJ will run a workload list of all dismissals issued 35 days prior to the effective date and all denials of requests to vacate a dismissal 65 days prior to the effective date. After identifying the cases, the following actions will be taken, as necessary:

  1. Notice of Dismissal issued on or after the effective date: Process the case under new rule 20 CFR 405.381, including notifying claimant of right to appeal to the AC.

  2. The claimant has not requested the ALJ vacate the Dismissal but 30-day DSI appeal time has not yet expired: Send a notice to the claimant allowing 60 days from the date of receipt of the dismissal notice to appeal to the AC.

  3. The claimant requested review, and the ALJ vacated the dismissal prior to the effective date: Continue processing the case at the hearing level under 20 CFR Part 405.

  4. The claimant requested review, but the ALJ has not acted on the request prior to the effective date: Notify the claimant the request will be forwarded to the AC for review (See Attachment 1). Close out the case in the Case Processing Management System (CPMS) using dismissal code ADDI, and transfer the case to the AC.

    NOTE:

    Do not enter requests to vacate a DSI dismissal received after the effective date into CPMS. Forward the request to the AC for action.

  5. The ALJ denied the request to vacate the dismissal, and the notice informed the claimant he or she could ask the DRB to review the dismissal under 20 CFR 405.381: Send a notice to the claimant allowing 60 days from the date of receipt of the dismissal notice to appeal to the AC.

C. Other notable issues

1. Attorney Advisor decisions

On or after the effective date, certain attorney advisors may conduct prehearing proceedings and issue fully favorable decisions on the record under 20 CFR 405.342.

2. Decisions

After the elimination of the DRB, the hearing level decision is a final decision, subject to certain conditions including request for review or re-opening provisions under 20 CFR Part 405.

3. Appeal of Decision After Effective Dates

In all decision notices issued after the effective date, the decision will explain the finality of the decision and provide the right to appeal to the AC within 60 days after receipt of notice of the decision if the claimant disagrees with the decision.

IV. Decision Review Board (DRB) and Office of Appellate Operations (OAO) Procedures

A. Cases pending with the Decision Review Board

  1. On the effective date, the DRB will stop processing cases. The DRB staff will work with the Office of Disability Systems (ODS) to ensure that all dismissed hearing level cases and all unfavorable and partially favorable Disability Service Improvement (DSI) hearing level cases pending at the DRB are identified, and have an Appeals Review Processing System (ARPS) record established in DRB Branch 40 (X0B).

  2. Once the DRB has established all appropriate DSI cases in ARPS, it will close all pending DRB cases using the Special Dismissal (SPDI) disposition code. At the same time, the DRB will establish a request for review workload in ARPS via the Electronic Disability Collect System (EDCS) case establishment process using the date of the ALJ's decision as the request for review date. The DRB will add the case characteristic code [DRBE] to the ARPS records to facilitate later identification. Initially, the cases will remain pending in DRB Branch 40 (X0B).

  3. The DRB staff will identify and compile a list of all cases involving partially favorable ALJ decisions. The DRB staff will send that list to the Office of Central Operations and the Boston Region, who will handle effectuation of those cases.

  4. ODS will provide to the central printing contractor a list of all request for review workload cases pending in DRB Branch 40 (X0B) in which ALJs issued unfavorable or partially favorable DSI decisions. This list will include the names and addresses of the claimants and their representatives.

  5. The contractor will produce and send an automated notice (Attachment 2) to each claimant and representative that will explain the elimination of the DRB regulations and notify the claimant and representative that jurisdiction of the case is being transferred to the AC where the case will be handled as if the claimant had requested review of the ALJ's decision. The automated notice will:

    • inform the claimant and representative that he or she can request withdrawal of the deemed request for review and that such a request must be made in writing;

    • advise the claimant who does not wish to request withdrawal that he or she may submit a statement about the facts and the law of the case;

    • notify the claimant that with limited exceptions, the Appeals Council will take its action based on the same evidence that was before the ALJ;

    • provide the claimant and representative with a 30-day time period in which to submit additional material or notify the Appeals Council in writing that he or she wishes to withdraw the deemed request for review; and

    • include a barcode that will allow the claimant or the representative to submit the additional material or a request to withdraw the appeal electronically.

  6. The contractor will upload the notice to the claimant's electronic folder.

  7. The DRB staff will send a manual notice (Attachment 3) in cases that were pending with the DRB on the claimant's request to vacate the ALJ's dismissal. The notice will provide the claimant and representative with a 30-day time period in which to submit additional material. A barcode that will allow the claimant or the representative to submit additional material electronically will be enclosed with the notice.

  8. The DRB staff will ensure that a copy of the notice is placed or scanned into the claims folder.

  9. At the end of the 30-day time frame provided for requesting withdrawal of the deemed request for review or submitting additional material, the DRB staff will permanently transfer all pending cases, in ARPS, to Division 5 in the Office of Appellate Operations (OAO).

  10. Division 5 will give these cases priority handling, processing them as requests for review in accordance with the rules in 20 CFR Parts 404, 405, and 416.

  11. Subject to 20 CFR 405.401(c), the record is closed as of the date of the ALJ's decision. The Appeals Council will base its action on the same evidence that was before the ALJ, unless any additional evidence submitted relates to the period on or before the date of the hearing decision, and only if the claimant shows that there is a reasonable probability that the evidence, alone or when considered with the other evidence of record, would change the outcome of the decision, and:

    • the Social Security Administration's action misled the claimant;

    • the claimant had a physical, mental, educational, or linguistic limitation(s) that prevented him or her from submitting the evidence earlier; or

    • some other unusual, unexpected, or unavoidable circumstance beyond the claimant's control prevented him or her from submitting the evidence earlier.

  12. Pursuant to 20 CFR 405.601, the time frames for reopening for good cause under CFR 404.988(b) and 416.1488(b) are six months from the date of the final decision. “New and material evidence” under 20 CFR 404.989(a)(1) and 416.1489(a)(1) will not provide a basis for finding good cause to reopen a final decision issued after a hearing in cases processed under DSI regulations.

NOTE:

Hearings processed under DSI regulations require 75-day advance notice of hearing (20 CFR 405.316). The claimant must object to the time or place of the hearing no later than 30 days after receiving notice of the hearing (20 CFR 405.317). With limited exceptions, the ALJ may decline to consider evidence submitted later than five business days before the date of the scheduled hearing (20 CFR 405.331). A subpoena request must be made at least 10 days before the hearing date (20 CFR 405.332).

B. Cases pending with the DSI Court Case Preparation and Review Branches (CCPRB)

  1. On the effective date the DRB will permanently transfer all cases pending in CCPRB 5 to the CCPRB with jurisdiction. The DRB will add the case characteristic code [DRBE] to the ARPs records. CCPRB staff will receive these cases in ARPS, then they will be processed by the AC in accordance with the rules in 20 CFR Parts 404, 405, and 416.

  2. If possible, the specific DSI code that allows preparation of an electronic certified administrative record (eCAR) without establishing a Federal Court level record in EDCS should remain intact for these cases.

  3. Any cases adjudicated under the DSI provisions and remanded by a court on or after the effective date, will be received into ARPS by the CCPRB with jurisdiction and then processed by the AC in accordance with rules in 20 CFR Parts 404, 405, and 416.

V. Inquiries

Office of Appellate Operations personnel should direct any questions to the designated former Division Director for the Decision Review Board at (703) 605-7333. Hearing office personnel should direct all program-related and technical questions to the appropriate regional office (RO) support staff. RO support staff may refer questions or unresolved issues to their headquarters contacts in the Office of the Chief Administrative Law Judge.

VI. Attachments-Notices

Attachment 1. Notice to Claimant Whose Request for Hearing has been Dismissed

[Claimant's name]

[Address]

Dear Mr./Ms./Mrs. [DSI Claimant]:

You filed a request for a hearing before an administrative law judge (ALJ). An ALJ dismissed your request. We want to tell you about some changes to our hearing process that might affect you if you do not agree with the dismissal.

[*Conditional: Claim dismissed and Claimant has not requested the ALJ vacate the dismissal.*]

We used to process some cases under the Disability Service Improvement process, or “DSI.” The DSI rules applied only to disability claims filed in our Boston region. The Boston region is comprised of the States of Maine, New Hampshire, Vermont, Rhode Island, Massachusetts and Connecticut. We recently made some changes to improve how we handle claims. For you this means that, as of June 13, 2011, some of the information we sent to you in your earlier notice of dismissal has changed.

If You Want to Appeal

We told you in your earlier notice that if you did not agree with the dismissal, you could file an appeal. We told you that you must send a written request to the ALJ to vacate, or set aside, the dismissal within 30 days after receiving the notice. As of June 13, 2011, we no longer require you to ask the ALJ to vacate the dismissal before you appeal the decision. Instead, if you do not agree with the dismissal, you should submit your appeal to the Appeals Council within 60 days from the date you received the notice of dismissal.

[*Conditional: ALJ denied the request to vacate the dismissal prior to effective date but time limit to appeal to DRB has not yet expired.*]

We used to process some cases under the Disability Service Improvement process, or “DSI.” The DSI rules applied only to disability claims filed in our Boston region. The Boston region is comprised of the States of Maine, New Hampshire, Vermont, Rhode Island, Massachusetts and Connecticut. We recently made some changes to improve how we handle claims. For you this means that, as of June 13, 2011, some of the information we sent to you in an earlier notice has changed.

If You Want to Appeal

We told you earlier that if you did not agree with the dismissal, you could file an appeal by asking the ALJ to vacate, or set aside, the dismissal within 30 days. You submitted this request, and the ALJ decided not to set aside the dismissal. You were told you had 60 days to appeal to the Decision Review Board. As of June 13, 2011, the Decision Review Board will no longer review these appeals. Instead, if you disagree with the ALJ's dismissal, you should submit your appeal to the Appeals Council within 60 days from the date you received the notice of the ALJ's decision not to set aside the dismissal.

[*Conditional: Claim dismissed and Claimant has requested the ALJ vacate the dismissal, but no action yet taken by the ALJ.*]

At the hearing level, we process some cases under the Disability Service Improvement process, or “DSI.” The DSI rules applied only to disability claims filed in our Boston region. The Boston region is comprised of the States of Maine, New Hampshire, Vermont, Rhode Island, Massachusetts and Connecticut. We recently made some changes in the DSI process to improve how we handle claims. For you this means that, as of June 13, 2011, some of the information we sent to you in your earlier notice of dismissal has changed.

We told you in our notice that if you disagreed with the dismissal and wanted to appeal, you must submit a written request to the ALJ within 30 days. We also told you that if the ALJ did not vacate, or set aside, the dismissal, we would give you an additional 60 days to ask the Decision Review Board to review the dismissal. As of June 13, 2011, we no longer require you to ask the ALJ to vacate the dismissal before appealing the decision. Instead, the Appeals Council will review these requests.

This means that although you requested the ALJ review the dismissal, the ALJ has not yet made a decision, and we will send your request to the Appeals Council. The Appeals Council will send you a decision about the dismissal of your request for hearing.

If You Have Any Questions

If you have any questions, please call, [HO Phone number], or write this office. For your convenience, our address is on the first page of this notice.

[Assigned ALJ name]

Administrative Law Judge

cc:     [Claimant's representative]

          [address]

Attachment 2. AMENDED NOTICE OF DECISON

[Claimant's name]

[Address]

We previously sent you a Notice of Decision with the administrative law judge's (ALJ) decision on your claim(s). That notice read, in part:

The Decision Review Board has selected your claim for review. Therefore, my decision is not the final decision of the Social Security Administration and cannot be appealed at this time. The Board must complete its action on your claim within 90 days from the date you receive this notice. If the Board does not act within this time, my decision will become the final decision of the Social Security Administration and, at that time, you will have the right to file a civil action. 20 CFR 405.420.

Based on recent rule changes, we transferred review of your claim(s) to the Appeals Council. The Appeals Council will treat your case as if you had filed a request for review of the hearing decision on the date of the notice advising you that the Decision Review Board (DRB) selected your case for review. We call this a “deemed” request for review.

What Appeals Council Review May Mean in Your Case

The rules the Appeals Council uses to decide whether to review a case appear in Title 20 of the Code of Federal Regulations.

A review places the entire record of your case before the Appeals Council. This means we will consider all of the ALJ's decision, even the parts with which you agree. We may review your case for any reason listed in our regulations.

The Appeals Council will consider all the issues and may:

  • Deny the deemed request for review, which means that the ALJ's decision is the final decision of the Commissioner;

  • Issue a new decision;

  • Send your claim(s) back to an ALJ for a new decision; or

  • Dismiss the deemed request for review, which means that the ALJ's decision is the final decision of the Commissioner.

[Option 1—claimant is represented]

What the Appeals Council Will Consider

With limited exceptions provided in 20 CFR 405.401(c), the Appeals Council will make its decision based on the same evidence that was before the ALJ. However, you may send a statement about the facts and the law in your case to us.

Please ask your representative to send any statements you want us to consider. Your representative must use the large barcode provided with his or her copy of the notice.

We will give you 30 days from the date you receive this letter to send a written statement you want the Appeals Council to consider. After 30 days, the Council will take its action based on the evidence contained in your record. If you are unable to submit a written statement before the end of the 30 days, you may ask the Appeals Council for an extension of time before the end of the 30 days.

[Option 2: claimant is not represented]

What the Appeals Council Will Consider

With limited exceptions provided in 20 CFR 405.401(c), the Appeals Council will make its decision based on the same evidence that was before the ALJ. However, you may send a statement about the facts and the law in your case to us.

Please send any statements you want us to consider in the enclosed envelope. Put the Social Security Number shown at the top of this letter on anything you send.

We will give you 30 days from the date you receive this letter to send a written statement you want the Appeals Council to consider. After 30 days, the Council will take its action based on the evidence contained in your record. If you are unable to submit a written statement before the end of the 30 days, you may ask the Appeals Council for an extension of time before the end of the 30 days.

You May Request that the Appeals Council Dismiss the Deemed Request for Review

You may ask the Appeals Council to dismiss the deemed request for review. You must submit this request in writing before the Appeals Council acts on the request for review. We will wait at least 30 days from the date of this notice to give you a chance to make this request. If we grant your request, the ALJ's decision will be the final decision of the Commissioner.

If You Do Not Request that the Council Dismiss the Deemed Request for Review

If you do not ask the Appeals Council to dismiss the deemed request for review of the hearing decision, we will take action as described in our regulations.

What Happens Next

We will wait 30 days before taking any action on the deemed request for review of the hearing decision, unless before that time you ask us to dismiss the request for review. The Appeals Council will then proceed with its action based on the evidence contained in the record before it.

New Application

You have the right to file a new application at any time, but filing a new application is not the same as appealing the hearing decision. If you ask the Appeals Council to dismiss the deemed request for review of the hearing decision and you file a new application for benefits instead, you might lose some benefits, or not qualify for any benefits. We could also use the ALJ's decision to deny a new application for benefits, if the facts and issues are the same.

If You Have Any Questions

If you have any questions, you may call or write us. The telephone number and address are shown at the top of this letter. If you do call, please have this notice with you.

 

Signature of Patricia A. Jonas

 

Patricia A. Jonas

 

Executive Director,

 

Office of Appellate Operations

Attachment 3. Notice to Claimant Whose Request to Vacate the Administrative Law Judge's Dismissal is Pending at the Decision Review Board

[Claimant's name]

[Address]

Rules That Affect Your Claim Have Changed

We have changed the rules that apply to appeals of administrative law judge (ALJ) decisions and dismissals on disability claims filed in the States of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. In the sections below, we explain how this change affects your request for review with the Decision Review Board.

What We Plan to Do

When the rules changed, your request to vacate, or set aside, the ALJ's dismissal was pending before the Decision Review Board. The rules change eliminated the Decision Review Board. Therefore, we transferred your request to the Appeals Council, which has the authority under the new rules to review the ALJ's action.

What Appeals Council Review May Mean in Your Case

The rules the Appeals Council uses to decide whether to review a case appear in Title 20 of the Code of Federal Regulations. We will grant your request for review of the ALJ's dismissal if one of the reasons for review listed in our regulations exists.

The Appeals Council will consider whether the ALJ should have dismissed your request for a hearing. We will review the entire record of your case, and may choose to review the order of dismissal for reasons not stated in your request.

The Appeals Council may:

  • Deny your request for review of the dismissal;

  • Remand your case to an ALJ;

  • Issue a decision; or

  • Dismiss your request for review of the dismissal.

What the Appeals Council Will Consider

With limited exceptions provided in 20 CFR 405.401(c), the Appeals Council will make its decision based on the same evidence that was before the ALJ. However, you may send a statement about the facts and the law in your case to us.

Please send any statements you want us to consider to the address or FAX number below:

ADDRESS:

Appeals Council
Office of Disability Adjudication and Review
ATTN: Branch [#],Suite [#]
5107 Leesburg Pike
Falls Church, VA 22041-3255

FAX:

[FAX #], Attn: Branch [#].

Put the Social Security Number shown at the top of this letter on anything you send.

If you send us anything by fax, do not send duplicates by mail. That may delay processing your claim.

What Happens Next

We will give you 30 days from the date you receive this letter to send any additional evidence or a written statement relating to the dismissal of your case that you want the Appeals Council to consider. If you are unable to submit your evidence or a written statement before the end of the 30 days, you may ask the Appeals Council for an extension of time before the end of the 30 days. The Appeals Council will take its action based on the evidence contained in your record.

If You Have Any Questions

If you have any questions, you may call or write the Appeals Council. Our telephone number and address are shown at the top of this letter. If you call, please have this notice and the ALJ's order denying your request to vacate the dismissal with you.

 

Signature of Patricia A. Jonas

 

Patricia A. Jonas

 

Executive Director,

 

Office of Appellate Operations