I-3-4-10.Erroneously Established Request for Review
Last Update: 4/28/16 (Transmittal I-3-141)
Under 20 CFR 404.968 and 416.1468, a request for review to the Appeals Council (AC) must be submitted in writing. For detailed information about filing a request for review with the AC, see Hearings, Appeals and Litigation Law (HALLEX) manual I-3-1-1.
A request for review is “erroneously established” when a record is created in the Appeals Review Processing System (ARPS) and a valid request for review does not exist. For example, a claimant may submit correspondence that does not constitute a request for review, but the receiving component establishes an ARPS record. When it appears a request for review may have been erroneously established in ARPS, Office of Appellate Operations (OAO) staff will develop the issue before taking any further action on the claim(s).
If the request for review is premature (i.e., the hearing level has not completed its action on the case) and a case was established in ARPS, see the instructions in HALLEX I-3-4-6.
1. Identifying a Request for Review That May Have Been Erroneously Established
While not an exhaustive list of examples, OAO staff may need to develop whether a request for review was erroneously established when:
OAO receives correspondence directly and establishes an ARPS record, but on further review, the correspondence does not constitute a request for review;
An ARPS record was established by a field office (FO) but there is no writing associated with the record; or
An ARPS record was established by an FO based on a writing but the correspondence does not constitute a request for review.
For more information about what constitutes a request for review, see HALLEX I-3-1-1.
2. Requesting Information on a Possible Erroneously Established Request for Review
OAO staff will not clear a case in ARPS without undertaking development to ensure the request for review was erroneously established.
In some cases, it may be necessary for OAO staff to first contact the FO to determine whether it has a copy of a written request for review. (For electronic claim(s) files, see OAO's electronic business process section 1.3 D.8.) If those efforts are not successful, or contact with the FO is unnecessary (e.g., OAO established the case in ARPS), OAO staff will prepare correspondence for the claimant and appointed representative, if any, explaining that:
The AC established a case;
The AC determined that the letter did not constitute a request for AC review, or, the AC determined that the claim(s) file does not contain a writing requesting review;
The AC will not take any action on the case unless a written request for review is filed; and
A request for review must be filed within 60 days of receipt of the hearing decision or dismissal, but if that is not possible, the claimant may ask the AC to extend the time to file a request for review.
When preparing the letter, OAO staff will use the COR 19 template in the Document Generation System, modifying the content of the letter, as needed, to address the particular fact scenario. An OAO branch chief or his or her designee will sign the letter.
In addition to sending the letter to the claimant and appointed representative, if any, OAO staff will:
If the claim(s) file is electronic, use the “Send to eFolder” button in DGS to associate a copy of the letter with the electronic claim(s) file.
If the claim(s) file is paper, send a copy of the letter to any other affected component.
After sending the letter, OAO staff will add a remark in ARPS explaining the situation and diary the case for 30 days.
3. Final Action
If, in response to its letter, OAO receives a written request for review, OAO will associate the writing with the record and proceed with processing the case in the usual manner.
If the claimant calls OAO in response to the letter, OAO will advise the claimant that a request for review must be submitted in writing, and will document the conversation on a form SSA-5002, Report of Contact, that is associated with the claim(s) file.
If the claimant does not submit a written request for review and the diary expires, OAO staff will note the action in a remark in ARPS and close the case using the SPDI dismissal code.