I-2-1-85.Requesting Clarification of Appeals Council Remand Orders - Policy
Last Update: 3/2/15 (Transmittal I-2-134)
An administrative law judge (ALJ) may seek clarification of an Appeals Council (AC) remand order only when:
The ALJ cannot carry out the directive(s) set forth in the remand order; or
The directive(s) in the remand order appears to have been rendered moot.
ALJs may not seek clarification of AC remand orders under any other circumstances.
There are two types of clarification requests: expedited clarification requests and formal clarification requests. Expedited clarification requests are used when the sole reason for remand is a missing claim(s) file or a missing hearing recording, or both, and the claim(s) file or hearing recording is subsequently found. Processing instructions for requesting expedited clarification are included in Hearings, Appeals and Litigation Law (HALLEX) manual I-2-1-87. Formal clarification requests apply to all other circumstances that meet one of the two criteria noted above. Processing instructions for requesting formal clarification are located in HALLEX I-2-1-86.
If the AC accepts a clarification request, it will vacate its remand order and issue a new action. However, the AC will not vacate a remand order after an ALJ holds a new hearing. Therefore, if an ALJ intends to request clarification from the AC, he or she must submit the request before conducting a hearing (and whenever possible, before scheduling a hearing).
In some cases, the criteria for clarification may not be present but feedback to the AC may be appropriate. If the AC remand order itself is unclear, may demonstrate inconsistent application of policy by the AC, or, while technically correct, contains insignificant errors that would not likely result in a Federal court remand, the ALJ can refer the case through the AC feedback initiative, as explained in HALLEX I-2-1-88.
B. Communicating with the AC
ALJs (and any assisting hearing office (HO) staff) who want to request clarification of an AC remand order must communicate with the AC only as set forth in HALLEX I-2-1-86 or I-2-1-87. HOs and ALJs may not directly contact AC adjudicators regarding specific cases, regardless of whether the case is pending at the AC or at the HO.
C. When Clarification May Be Appropriate
1. ALJ Cannot Carry Out the Directive(s) Set Forth in the Remand Order
An ALJ may not be able to carry out the directive(s) set forth in the remand order in the following situations:
The directive(s) violates law or agency policy, or carrying out the directive(s) may require the ALJ to violate law or agency policy;
The directive(s), if followed, would cause inordinate delay in a claim or be unnecessarily burdensome; or
The directive(s) is based on a factual or clerical error, and the error results in a directive(s) that cannot be carried out or a directive(s) that is unclear based on the actual facts.
The following are examples of valid clarification requests:
The AC directs the ALJ to request a consultative examination to evaluate the claimant's mental impairments. The claimant is in a confinement facility for an extended period of time, and the facility will not allow a consultative examination while the claimant is confined.
The AC directs the ALJ to obtain a hearing test and examination performed by a qualified otolaryngologist but there is no otolaryngologist in the area servicing the HO.
The AC remand directs the ALJ to consider the findings of a prior ALJ decision, but the AC made an error and no prior ALJ decision was issued.
ALJs may only request clarification based on a clerical or factual error in the AC remand order if the error is substantive and directly related to a specific directive(s). Disagreement with an aspect of the remand order does not constitute a factual error.
The following are examples of clarification requests that are not valid:
The ALJ disagrees with the AC's finding that the claimant had “good cause” for failing to appear at the scheduled hearing.
The remand order did not cite a regulatory basis for granting review.
The AC does not explain why a medical expert is needed to resolve the reasons for remand.
A Federal court issued the directive(s).
The heading in an AC remand order erroneously indicates a concurrent claim in a title XVI only claim. However, the content of the order clearly references the ALJ decision by date, and the error in the heading does not preclude the ALJ from carrying out the AC directive(s).
An ALJ previously received conflicting instructions in a remand order from the AC in a different case.
If the AC appears to be issuing conflicting instructions on a specific issue, an ALJ should refer the matter through the AC feedback initiative, citing specific examples of conflicting instructions. See HALLEX I-2-1-88.
2. When the Directive(s) Appears to Be Rendered Moot
A change in circumstance or an error of fact may make a directive(s) obsolete in some instances. The following are examples of valid requests for clarification in these circumstances:
The AC remands a case for a new hearing solely because the hearing recording cannot be located. The hearing recording is subsequently found and is determined to be audible, and a new hearing has not yet been held.
The AC remands a case to determine the identity and Social Security number (SSN) of the wage earner on whose record the claimant may apply for benefits. On remand, the HO discovers a clerical error resulted in the entering of an incorrect digit in the SSN in the Case Processing and Management System (CPMS) and the HO corrected the error.
Additionally, when deciding whether to request expedited clarification because a missing claim(s) file or hearing recording has been located, HO staff will take into consideration the following:
If the AC includes any other directive(s) in the remand order, the expedited clarification process may not be used.
The definition of “missing” hearing recording includes “inaudible” hearing recordings. Therefore, if a case is remanded solely because the hearing recording is inaudible, but the recording is later found to be completely audible, the expedited clarification procedures may be used.
It is not anticipated that the AC will remand an electronic case for a lost or missing claim(s) file. However, should this be the only reason for remand when a claim(s) file is electronic, HO staff may use the procedures in HALLEX I-2-1-87 to notify the Office of the Chief Administrative Law Judge (OCALJ). The referral will be handled on a case-by-case basis, and OCALJ will provide appropriate instructions to the HO.
The AC will deny a request for clarification if the HO submits a compact disc (CD) copy of a recovered recording for an electronic claim(s) file because an electronic claim(s) file is incomplete without an official hearing recording uploaded to the Multimedia Files section in eView. If the recording is completely audible but the recovered digital recording cannot be uploaded to the electronic claim(s) file, the HO cannot use the expedited clarification process unless the claim(s) file is converted to paper. In situations where it is more appropriate to convert to a paper file than to hold a supplemental hearing, the HO can print out the entire claim(s) file, attach a CD copy of the recording, and send the entire paper claim(s) file with the CD to the AC (after following the instructions in HALLEX I-2-1-87). The HO must also ensure that CPMS and eView clearly indicate that the case has been converted to a paper claim(s) file.