I-1-10-50.Appeals Council - Processing a Court-Initiated Remand with a Subsequent Claim(s)

Last Update: 7/7/17 (Transmittal I-1-89)

When the Appeals Council (AC) processes a court-initiated remand, the analyst will determine whether the claimant has filed a subsequent claim(s). For instructions on identifying subsequent claim(s), see Hearings, Appeals and Litigation Law (HALLEX) manual I-1-10-15.

NOTE:

If a Federal court remands a claim(s) solely for payment of benefits, the Office of the General Counsel will usually send the claim(s) directly to the effectuating component rather than to the AC for a remand action. For more information that explains why no AC action is required, see Program Operations Manual System (POMS) GN 03106.036A.

A. Subsequent Claim(s) Pending at Initial, Reconsideration or Hearing Level, or Denied at Initial or Reconsideration Level

When the AC processes a court-initiated remand and a subsequent claim(s) is pending at the initial, reconsideration or hearing level, or was denied at the initial or reconsideration level, the AC remand order will direct consolidation of the claims if the subsequent claim(s) involves a common issue. For how we define a common issue, see POMS DI 12045.010 and DI 12045.015.

The AC will add the following language to the remand order:

The claimant filed [a/an paper/electronic] subsequent claim(s) for [Title II and/or Title XVI disability] benefits on [date]. The Appeals Council's action with respect to the present/current [paper/electronic] claim(s) renders the subsequent claim(s) duplicate. Therefore, the Administrative Law Judge will consolidate the claim(s) files, associate the evidence, and issue a new decision on the consolidated claims (20 CFR 404.952 [and/or 416.1452], and HALLEX I-1-10-10).

B. Subsequent Claim(s) Denied at Hearing Level

If the AC remands a prior claim to an administrative law judge (ALJ) based on a court remand, an ALJ has issued an unfavorable decision in the subsequent claim(s) and the claims involve a common issue, the AC remand order will address the subsequent claim(s) depending on the timeframes discussed below.

1. If Within 60 Days of ALJ Decision and No Request for Review Filed

The AC may review a hearing decision on its own motion within 60 days after the date of notice under 20 CFR 404.969 and 416.1469. For more information about the AC's own motion review procedures, see HALLEX I-3-6.

If the AC remands a prior claim to an ALJ based on a court remand, the 60 days for own motion review have not lapsed, and the claimant has not filed a request for review on the subsequent claim(s), the AC will use its own motion authority to consolidate the prior and subsequent claim(s) based on the “broad policy or procedural issue that may affect the general public interest” provision of 20 CFR 404.970 and 416.1470.

Prior to issuing the remand order, the AC will issue an interim notice.

NOTE:

Because the AC must take own motion review within 60 days after the case is adjudicated at the hearing level, the analyst must ensure that the case is routed to the “A” member administrative appeals judge (AAJ) in a timely manner. If the AAJ approves the action document, he or she will send the case to the “B” member AAJ for consideration.

2. If Beyond 60 Days But Within Timeframes for Reopening and No Request for Review Filed

If the AC remands a prior claim to an ALJ based on a court remand, and the subsequent claim(s) does not contain a request for review of the unfavorable ALJ decision, the AC must have a reason to reopen the subsequent hearing decision under 20 CFR 404.988 and 416.1488. The AC may reopen a subsequent unfavorable ALJ decision:

  • Within 12 months of the date of the notice of the initial determination for any reason (see HALLEX I-3-9-30);

  • Within four years (title II) or two years (title XVI) of the date of the notice of the initial determination if the Social Security Administration (SSA) finds good cause (see HALLEX I-3-9-40);

  • At any time for fraud or similar fault (see HALLEX I-3-10-7); and

  • At any time in title II cases for the reasons set forth in 20 CFR 404.988(c) (see HALLEX I-3-9-60).

Information about computing the time period for reopening is found in HALLEX I-3-9-20.

a. No Basis to Reopen Subsequent Decision

If there is no basis to reopen the subsequent unfavorable ALJ decision, the AC remand order for the prior claim will acknowledge the subsequent claim(s) and, when the claim(s) is within the timeframes for reopening (20 CFR 404.988 and 416.1488), will direct the ALJ to consider the subsequent unfavorable ALJ decision consistent with the reopening regulations when deciding the claim remanded by the court.

When there is no basis to reopen, the analyst will use the following language in the AC remand order:

The claimant filed [a] subsequent claim(s) for [Title II and/or Title XVI] disability benefits on [date], which [was/were] denied by hearing decision issued on [date]. The Administrative Law Judge will consider that decision if necessary, consistent with applicable reopening regulations, when deciding the claim(s) remanded by the court.

b. Basis for Reopening Subsequent Decision Exists

If there is a basis to reopen the subsequent unfavorable ALJ decision and the subsequent claim(s) is within the timeframes for reopening (20 CFR 404.988 and 416.1488), the AC will direct consolidation of the claims. Prior to issuing the remand order, the AC will issue an interim notice.

NOTE:

The AC remand order will direct consolidation of the claims if the subsequent claim(s) involves a common issue. For how we define a common issue, see POMS DI 12045.010 and DI 12045.015.

The AC will add the following language to the remand order:

The claimant filed [a/an paper/electronic] subsequent claim(s) for [Title II and/or Title XVI disability] benefits on [date]. The Appeals Council's action with respect to the present/current [paper/electronic] claim(s) renders the subsequent claim(s) duplicate. Therefore, the Administrative Law Judge will consolidate the claim files, associate the evidence, and issue a new decision on the consolidated claims (20 CFR 404.952 [and/or 416.1452], and HALLEX I-1-10-10).

3. If Beyond Timeframes for Reopening and No Request for Review Filed

When the timeframes for reopening the subsequent claim have lapsed, the AC will remand the prior claim acknowledging the decision on the subsequent claim(s) and directing the ALJ to consider that decision if necessary, consistent with applicable reopening regulations, when deciding the prior claim remanded by the court. In such situations, the ALJ may reopen and revise a subsequent claim(s) if additional development indicates that the conditions for reopening are met under 20 CFR 404.988 and 416.1488.

The analyst should use the following language in the AC remand order:

The claimant filed [a] subsequent claim(s) for [Title II and/or Title XVI] disability benefits on [date], which [was/were] denied by hearing decision issued on [date]. The Administrative Law Judge will consider that decision if necessary, consistent with applicable reopening regulations, when deciding the claim(s) remanded by the court.

C. Subsequent Claim(s) Pending at AC Level

If a request for review of the ALJ decision on the subsequent claim(s) is pending before the AC, the AC will act on the request for review and court remand at the same time. An Office of Appellate Operations (OAO) Disability Program Branch (DPB) will process both claims.

When the AC actions are ready for release, DPB clerical staff will take all necessary steps to close the request for review case. After the request for review case is closed, DPB clerical staff will notify the Court Case Preparation and Review Branch (CCPRB) chief so that the CCPRB can take all necessary actions on the court remand record.

1. AC Remands Prior Claim Based on Court Remand and Grants Review in Subsequent Claim(s)

When the AC grants review of the subsequent claim(s), the AC will generally direct consolidation with the prior claim because the subsequent claim(s) is duplicate or involves an overlapping time period. The AC will issue a single remand order that explains the basis for the court remand in the prior claim and the basis for granting review in the subsequent claim(s). The remand order will also explain what actions the ALJ needs to take on remand.

2. AC Remands Prior Claim Based on Court Remand and Denies Review in Subsequent Claim(s)

In unusual circumstances where there is a clear reason not to consolidate with the prior claim (for example, such claims involve a different title with no common issue) and it is not required by the court remand order, the AC may find it appropriate to remand a prior claim based on the court remand order but deny review on the subsequent claim(s) pending before the AC. In these circumstances, the AC will:

  • Acknowledge the subsequent claim(s) in the remand order and direct the ALJ to only consider the period at issue in the prior claim; and

  • Issue a standard denial notice on the subsequent claim(s), stating that the prior claim is being addressed in a separate notice.

The analyst should use the following language in the AC remand order:

The claimant filed [a] subsequent claim(s) for [Title II and/or Title XVI] disability benefits on [date], which [was/were] denied by hearing decision issued [date]. This remand order does not involve the period at issue in the subsequent claim(s).

D. AC Denies Review in Subsequent Claim(s) - No Pending Civil Action

If the AC denied the claimant's request for review of an ALJ decision on the subsequent claim(s) and the claimant has not appealed to the Federal court, the AC will vacate the denial of the request for review on the subsequent claim(s) if it involves a common issue (i.e., shares an overlapping period of time).

The AC will grant review on the subsequent claim(s) to consolidate it with the prior claim. Prior to issuing a remand order, the AC will issue an interim notice. When the deadline for submitting additional evidence and written statements expires, the AC will:

  • consider written statements, and

  • review any submitted additional evidence pursuant to 20 CFR 404.970 and 416.1470.

If the AC determines that remand is still the appropriate course of action, it will issue a single remand order that addresses the court remand in the prior claim and the basis for granting review in the subsequent claim(s). The AC will grant review on the subsequent claim(s) under the “broad policy or procedural issue” provision pursuant to 20 CFR 404.970 and 416.1470. The remand order will also explain what actions the ALJ needs to take on remand.

In addressing the prior claim, the remand order will state:

The Appeals Council vacates the final decision of the Commissioner of Social Security and remands this case to an Administrative Law Judge for further proceedings consistent with the order of the court.

In addressing the subsequent claim(s), the order will state:

The Appeals Council grants the request for review under the broad policy or procedural issue provision of the Social Security Administration regulations (20 CFR 404.970 [and/or 416.1470]). Under the authority of 20 CFR 404.977 [and/or 416.1477], the Appeals Council vacates the hearing decision and remands this case for further proceedings consistent with the order of the court.

NOTE 1:

When the court remand does not result from a voluntary remand, to avoid any confusion with the directives of the court, the remand order should not discuss the court's rationale.

NOTE 2:

The AC should not grant review on the subsequent claim(s) under the other provisions of 20 CFR 404.970 and 416.1470 since the AC had previously denied the request for review, indicating that the subsequent ALJ decision was supported by substantial evidence, did not contain an error of law, etc.

NOTE 3:

Division of Civil Actions staff should ensure that a civil action has not been filed by searching the Public Access to Court Electronic Records database.

E. AC Denies Review in Subsequent Claim(s) – Pending Civil Action

If the AC denied the claimant's request for review of the ALJ decision on the subsequent claim(s), the subsequent claim(s) involves a common issue (i.e., shares an overlapping period of time) and the claimant has filed a civil action, which is currently pending in Federal court, the AC will request remand through the Office of the General Counsel for consolidation with the prior claim(s). The CCPRBs will work these cases.

For information about seeking remand of a pending court case, see HALLEX I-4-5-10.

Once the AC obtains jurisdiction over the subsequent claim(s), absent unusual circumstances (e.g., favorable decision warranted), it will issue a single remand order that addresses the court remand in the prior claim and directs consolidation with the subsequent claim(s). The remand order will also explain what actions the ALJ needs to take on remand.

F. Subsequent Claim(s) Allowed

If a subsequent claim(s) was allowed at any administrative level prior to the court remand, the analyst will review the file for information concerning the subsequent allowance. The analyst will make a recommendation to the AC as to whether the evidence in both records supports the outcomes in both the prior claim and subsequent allowance.

NOTE:

When the subsequent claim(s) file is paper, OAO staff will request the file before the analyst makes a recommendation on the subsequent allowance.

If the subsequent allowance is supported, the AC will take one of the following actions with respect to the prior claim:

  • Issue a fully favorable decision that affirms the subsequent allowance or references but does not disturb the subsequent allowance;

  • Propose a partially favorable decision (by establishing an earlier onset date based on the evidence in the subsequent claim) and a partial remand of the prior claim based on the court order, if necessary, affirming the allowance and limiting the scope of the remand to the appropriate remaining period to be adjudicated; or

  • Issue a remand order, affirming the allowance and limiting the scope of the remand to the appropriate remaining period to be adjudicated.

If the subsequent allowance is not supported, the AC will decide whether to reopen the subsequent allowance when it acts on the court remand under 20 CFR 404.988 and 416.1488.

If the AC determines that reopening is appropriate, the AC will issue an interim notice advising the claimant that it is reopening the subsequent allowance and remanding the subsequent claim to an ALJ for further proceedings and consolidation with the prior claim.

If it is unclear whether the subsequent allowance is supported and there is no basis to reopen the subsequent allowance, the AC remand order will neither affirm nor reopen the allowance and limit the scope of the remand to the appropriate remaining period to be adjudicated.

The AC will add the following language to the remand order:

The Appeals Council neither affirms nor reopens the [State agency determination/decision], which continues to be binding. This means that the [determination/decision] will be subject to reopening and revision if additional development indicates that the conditions for reopening are met (20 CFR 404.987 [and/or 416.1487]). Unless the [determination/decision] is reopened and revised in accordance with applicable regulations, the period before the Administrative Law Judge will be limited to that period prior to [date of established onset].