I-3-2-50.Administrative Law Judge Recommended Decisions
Last Update: 5/1/17 (Transmittal I-3-153)
A. In General
The conditions in which an administrative law judge (ALJ) will issue a recommended decision are described in Hearings, Appeals and Litigation Law (HALLEX) manual I-2-8-15. In some instances when the Appeals Council (AC) remands a case, it may direct an ALJ to issue a recommended decision. See 20 CFR 404.977 and 416.1477.
See D below if it appears the ALJ did not intend to issue a recommended decision (i.e., the cover letter references a “recommended decision” but the decisional paragraph in the decision does not).
B. When the Appeals Council Will Direct That the ALJ Issue a Recommended Decision
When remanding a case, the AC will direct an ALJ to issue a recommended decision when the AC finds it necessary to review certain findings before issuing a final decision on behalf of the Commissioner.
Though not exhaustive, the following are examples of when the AC may direct an ALJ to issue a recommended decision:
The case involves a novel policy or procedural issue;
The case could impact or be affected by pending litigation;
The AC is concerned that, based on the facts of the case, a remand order may be misinterpreted as a directive to issue a favorable decision; or
The ALJ did not previously follow remand directives in the case and directing a recommended decision is more administratively efficient than another action.
C. Receipt of a Recommended Decision
Hearing offices route recommended decisions to the Office of Appellate Operations (OAO) Executive Director's Office (EDO). See HALLEX I-2-8-15 C.
Upon receipt, EDO staff will establish the case in the Appeals Review Processing System and forward the case to the appropriate OAO branch for expedited processing. Branches will process fully favorable recommended decisions as quickly as possible. Branches will give unfavorable or partially favorable recommended decisions a diary date of 45 days to account for receipt of additional information from the claimant. However, the recommended decision will be processed on receipt of a response from the claimant or as quickly as possible after the diary expires, whichever is earlier.
To avoid creating and adjudicating an undeveloped record and time period, the AC expedites processing of ALJ recommended decisions.
When an ALJ sends a recommended decision to the AC, the ALJ advises any party to the hearing that he or she has 20 days from the date he or she received the recommended decision to file briefs, exceptions, or other written statements about the facts and law relevant to the case with the AC. Any party may ask the AC for additional time and the AC may extend the 20-day period if it finds there is good cause for doing so.
Unless the circumstances in 20 CFR 404.935(b) and 416.1435(b) apply, the AC may decline to obtain or consider evidence if a claimant did not previously inform the Social Security Administration (SSA) about the evidence or submit the evidence to SSA. To determine whether to obtain or consider additional evidence, the AC will use the instructions in HALLEX I-2-5-13, I-2-6-58, and I-2-6-59.
If the AC considers additional evidence, the AC will evaluate whether the preponderance of the evidence, including the additional evidence, would change the ALJ's recommended action, finding, or conclusion. If the AC declines to consider additional evidence, the AC will evaluate whether the preponderance of the evidence in the record before the ALJ would change the ALJ's recommended action, finding, or conclusion.
The AC will issue the final decision of the Commissioner based on the preponderance of the evidence. The AC may also remand the case to an ALJ for further proceedings or to dismiss the request for hearing (if appropriate), as explained in HALLEX I-3-4-20. When the AC acts on a recommended hearing decision, the AC will adjudicate the period through the date of the AC decision (presuming that insured status or other necessary factors are met).
When the AC agrees with a recommended decision, the AC will generally not issue an interim notice to the claimant before issuing its decision because the ALJ has already provided notice to the claimant of the proposed action. See HALLEX I-2-8-15 C. However, the AC will issue an interim notice detailing its proposed findings in the following circumstances: (1) the AC will consider additional evidence related to the period after the ALJ's recommended decision; (2) a significant amount of time has elapsed since the ALJ's recommended decision; or (3) the AC's final decision will substantially change the ALJ's recommended decision, even if the outcome is the same.
For more information on AC decisions, see generally HALLEX I-3-8.
D. Recommended Decision Cover Letter Mistakenly Issued
On occasion, the AC will receive a request for review or other written statement from a claimant about a decision that is identified on the cover letter as a recommended decision. On further review, however, OAO staff determines the decisional paragraph in the decision does not reference a recommended decision. In this situation, it is likely that the ALJ used the recommended decision cover letter template by accident.
If the ALJ recently issued the decision and it seems appropriate given the statement from the claimant, the branch chief may contact the hearing office, confirm that a mistake was made, and ask the hearing office to reissue the decision using the correct cover letter.
If the ALJ intended to issue a recommended decision, the hearing office must follow the procedures in HALLEX I-2-8-15, including converting the claim(s) file to a paper claim(s) file and routing the claim(s) file per the instructions in that section.
In most cases, however, OAO will process the claimant's statement as a request for review rather than asking the hearing office to correct the cover notice. This avoids unnecessary delays in processing. Further, the AC will generally not find timeliness an issue in this instance because, while it does provide an opportunity to submit comments within a certain timeframe, a recommended decision cover letter does not properly inform the claimant of his or her appeal rights.