I-3-7-40.Preparation, Content, and General Routing of Remand Order
Last Update: 4/26/16 (Transmittal I-3-139)
An Appeals Council (AC) remand order serves two purposes:
It instructs the administrative law judge (ALJ) what action(s) to take and why the action(s) is necessary; and
It communicates information to the claimant.
When drafting remand orders, Office of Appellate Operations (OAO) staff will use Document Generation System (DGS) templates, but can modify the language as needed to reflect the facts of each individual case. However, in addition to providing precise, comprehensive, and accurate instructions to the ALJ, OAO staff must draft remand orders using language that a member of the general public will understand. Complying with plain language writing requirements is particularly important if the claimant does not have an appointed representative.
After a remand order is prepared, OAO staff will send the case to an administrative appeals judge (AAJ) for review. If the AAJ agrees that a remand is appropriate, the case will be reviewed by a second AAJ. If both AAJs agree to a remand, OAO staff will ensure:
The signed remand order is sent to the claimant and appointed representative, if any;
The remand order is associated with the claim(s) file; and
The case is routed to the hearing office (HO) servicing the claimant's address.
B. Language and Style
When preparing a remand order, OAO staff will, as applicable:
Clearly and concisely set forth the reasons for the remand and the instructions for further action.
Specify what evidence is needed and why.
Cite to any pertinent conflicts in the record.
Note any issues relating to an Acquiescence Ruling (AR) that the ALJ did not address.
Identify any new and material evidence submitted by the claimant to the AC.
Direct the ALJ to hold a new hearing, or direct the ALJ to offer the claimant an opportunity to appear at a new hearing (whether or not the claimant previously waived an oral hearing).
If, in a title II only claim, the period at issue ends before the date of the hearing decision (e.g., insured status expired in a disabled worker claim or the claimant reached age 22 in a childhood disability claim), the AC need not direct the ALJ to offer the claimant the opportunity for a new hearing. However, the AC may do so if the facts warrant such a direction, or the AC may give the ALJ the discretion to determine whether a new hearing is necessary.
Further, OAO staff must keep the following in mind when drafting a remand order:
While the AC is required to use legally correct terminology, OAO staff will use plain language whenever possible and avoid the use of internal agency jargon.
OAO staff must focus attention on the issues that the ALJ will need to address on remand and not on the ALJ who issued the action. As explained in Hearings, Appeals and Litigation Law (HALLEX) manual I-2-1-55 D, hearing office management will usually assign a remand order to the same ALJ for processing, unless otherwise directed. Therefore, it is critical that the AC not discuss issues in a way that could undermine an ALJ's authority in future dealings with the claimant or representative.
OAO staff will list problems in order of importance and only use more than 3 or 4 problem bullets if each additional bullet would independently warrant a remand. OAO staff will include a cure for every listed problem and will list the cure bullets in order of the sequential evaluation.
OAO staff will cite to authority whenever possible, but will not cite court cases except when citing an AR. OAO staff will cite to HALLEX and the Program Operations Manual System (POMS), in that order, only when there is no other authority.
The AC will, as possible, include citations to exhibits and page numbers on which it is relying.
When remanding a case for the second time, if the same ALJ issued both previous decisions, the AC will, as a standard practice, direct that the case be assigned to a different ALJ. (However, even if the AC does not specifically include this directive, it is also standard practice for hearing office management to assign the case to a different ALJ if the AC previously remanded the case. See HALLEX I-2-1-55 D.5-6).
C. Special Considerations for Medical Cessations
1. Title XVI and Concurrent Claims
In title XVI and concurrent title II/title XVI remand cases involving medical cessation under 20 CFR 404.1597a and 416.996, DGS contains a payment status request with transmittal documents to send to the servicing field office (FO) as well as a transmittal to send to the HO with the remand order that notifies each of potential payment continuation (see Program Operations Manual System (POMS) DI 12027.065). The analyst will complete these documents when preparing the remand order in DGS. For electronic cases, the analyst will add a remark in eView in the Alerts and Messages section, stating “Potential Continued Disability Payments Pending Readjudication,” and follow the Appeals Council Electronic Signature and Central Print Training and Resource Guide, Appendix 1, for an e-Sign workaround.
2. Title II Only Claims
In title II only medical cessation cases under 20 CFR 404.1597a, the HO has responsibility for notifying the servicing FO of potential payment continuation upon receipt of the AC remand (see POMS DI 12027.060). However, the AC must notify the HO of the potential payment continuation. For paper claims files, the analyst should use DGS to prepare a “Misc 505 Transmittal” addressed to the hearing office director and indicate that the case is a “Potential Benefit Continuation Case.” For electronic claims files, the analyst will add a remark in the Alerts and Messages section, stating “Potential Continued Disability Payments Pending Readjudication.”