I-2-2-40.Administrative Law Judge Referrals for Possible Policy or Procedural Issues
Last Update: 1/19/16 (Transmittal I-2-165)
A. Requesting Policy or Procedural Advice
In most situations, reference to the Social Security Act (Act), regulations, rulings, the Hearings, Appeals and Litigation Law (HALLEX) manual, or the Program Operations Manual System (POMS) will resolve policy or procedural issues that arise during the adjudication process. On rare occasions, an administrative law judge (ALJ) may observe a novel or unusual situation in which he or she needs further guidance to evaluate an issue(s) fully. On other occasions, hearing office (HO) staff or the Hearing Office Chief Administrative Law Judge (HOCALJ) may bring a novel or unusual situation to the ALJ's attention. An ALJ will generally refer issues for further guidance when:
The issue involves a broader impact on the hearing operation (e.g., the issue appears to be new but will likely arise in other situations); or
The ALJ is unable to resolve the issue without additional guidance.
To refer a policy or procedural issue(s), an ALJ will first discuss the issue(s) with the HOCALJ. If the HOCALJ agrees further advice is needed, the HOCALJ will forward the matter to the Office of Disability Adjudication and Review regional office (RO).
RO personnel will evaluate the policy or procedural issue(s) and determine whether referral to the Division of Field Procedures (DFP) in the Office of the Chief Administrative Law Judge (OCALJ) is appropriate. Generally, a referral from the RO is appropriate when the policy or procedural question is of such complexity or significance that additional guidance is required, or when it is likely that there is inconsistent application of a policy or procedure nationwide. If referral to DFP is appropriate, RO personnel will send the referral by email to ¦¦¦ODAR OCALJ DFP. DFP will decide the appropriate course of action based on the particular issue(s) and circumstances.
B. Requesting a Legal Opinion
An ALJ must request a legal opinion from the Office of the General Counsel (OGC) when the Social Security Administration (SSA) specifically instructs the ALJ to obtain such an opinion before adjudicating a case. For example, this scenario can arise when SSA encounters a novel or unusual policy or procedural issue that may impact litigation or is the subject of pending litigation.
In other rare and limited circumstances, an ALJ may find it necessary to request a legal opinion from OGC in order to resolve an adjudication matter. An ALJ may consider requesting an opinion from OGC when:
A particular factual situation requires interpretation or clarification of state, federal, or foreign law (e.g., constitutional, privacy, or disclosure issues);
The Act, regulations, rulings, HALLEX, POMS, or other agency guidance does not address the issue;
The interpretation will affect the outcome of the case and is essential to adjudicate the case; and
OGC has not already issued a legal precedent on the issue (see POMS PR-Title II Regional Chief Counsel Precedents and PS-Title XVI Regional Chief Counsel Precedents).
While OGC may provide a legal opinion regarding an interpretation or clarification of law, an ALJ will not ask OGC for guidance on how to adjudicate a particular claim.
Once the ALJ confirms OGC has not already addressed the issue, the ALJ will consult with the HOCALJ regarding whether obtaining a legal opinion is appropriate. If the HOCALJ agrees, the ALJ will prepare a written recommendation for the RO.
After reviewing the written recommendation, the HOCALJ will refer the matter to the RO. If the RO agrees that requesting a legal opinion is appropriate, the RO will refer the matter to the appropriate OGC Office of the Regional Chief Counsel (ORCC), with a courtesy copy to OCALJ at ¦¦¦ODAR OCALJ DFP. The ORCC will review the request per the instructions in POMS GN 01010.820.
When appropriate, the ORCC will issue a legal opinion and publish the opinion in POMS. See generally POMS PR – Title II Regional Chief Counsel Precedents and POMS PS – Title XVI Regional Chief Counsel Precedents.