I-3-8-12.Request for Appearance
Last Update: 1/21/20 (Transmittal I-3-168)
When the Appeals Council (AC) grants a request for review or reviews an administrative law judge (ALJ) decision or order of dismissal on its own motion and gives prior notice of this action, the AC will notify the claimant and any representative that they may request an appearance to present oral argument.
The AC may grant or deny a request for an appearance. It will grant a request for an appearance if it determines that:
a significant question of law or policy is presented; or
oral argument would benefit the AC in rendering a sound decision in the case.
B. Analyst Recommends Fully Favorable Decision
If, after receiving a request for an appearance, the analyst believes the record supports a fully favorable decision, the analyst will draft the decision. The decision will address the request for an appearance as follows: “The claimant requested an appearance before the Appeals Council to present oral argument. Because the decision of the Appeals Council is fully favorable, an appearance would serve no useful purpose.”
C. Recommendation to Deny Request for Appearance
1. Analyst Recommends Remand
If, after receiving a request for an appearance, the record is complete and the analyst recommends that the AC remand the case to an ALJ, the analyst will draft a remand order. The remand order will address the request for an appearance as follows: “The claimant's request for an appearance was not granted because the Appeals Council concluded that no significant question of law or policy was presented and oral argument would not be beneficial in rendering the remand.” The claimant may present the same argument to the ALJ on remand.
2. Analyst Initially Recommends Less than Fully Favorable Decision
If, after receiving a request for an appearance, the record is complete and there is no question of law or policy on which oral argument would be beneficial to the AC in issuing a decision, the analyst will draft a letter notifying the claimant and any representative that the AC denied the request for appearance to present oral argument. The letter will explain the basis for the action and furnish an opportunity to present arguments in writing.
After the AC approves and releases the letter, the Office of Appellate Operations branch support staff will diary the case for 35 days awaiting written arguments from the claimant or any representative.
a. Claimant or Representative Submits Written Statement and/or Additional Evidence: Fully Favorable Decision Subsequently Recommended
If the analyst believes that the record now supports a fully favorable decision, the analyst will draft the decision for the AC's consideration. The decision will refer to the request for an appearance, its denial by the AC, and the receipt of the written statement and/or additional evidence. The statement and any evidence submitted by the claimant will be handled in the usual manner (see Hearings, Appeals and Litigation Law (HALLEX) manual I-3-3-6 and I-3-8-1).
b. Claimant or Representative Submits Written Statement and/or Additional Evidence: Less than Fully Favorable Decision Recommended
If the analyst recommends either a partially favorable or unfavorable decision, the decision must contain language stating that the claimant's request for an appearance was not granted because the AC concluded that no significant question of law or policy was presented and that oral argument would not be beneficial in rendering a proper decision. The statement and any additional evidence submitted by the claimant will be handled in the usual manner (see HALLEX I-3-3-6 and I-3-8-1).
c. Claimant and Representative Do Not Respond
After the diary period expires, the analyst will draft an appropriate decision for the AC's consideration. If a written statement or additional evidence is received after the AC issues its decision, the analyst will handle the material in accordance with the reopening and revision procedures (see HALLEX I-3-9).
D. Analyst Recommends Granting the Request for Appearance
If the record of the case is complete and the claimant has requested an appearance, the analyst may conclude that a significant question of law or policy is presented or that oral argument would be beneficial to reach a proper decision. The analyst will update any prior analysis of the case, as necessary, and recommend granting the request for an appearance.
1. The AC Does Not Agree with Recommendation
If the AC concludes that an appearance is not warranted, it will return the case to the analyst for further action as in subsection C above (denial of request for appearance).
2. The AC Agrees With Recommendation
If the AC agrees with the recommendation to grant the request for an appearance, the “A” member Administrative Appeals Judge (AAJ) will refer the case to the Chair or Deputy Chair, or his or her delegate, for designation of the appearance panel.
a. Manner of Appearance Before the AC
The AC will designate the manner of appearance for the claimant and any other person relevant to the proceeding (see 404.976 (b), 416.1476(b), and 422.205(b)). The claimant will appear in person or by video teleconferencing (VTC), or, if the circumstances described in 20 CFR 404.936(c)(2) and 416.1436(c)(2) exist, by telephone (see 20 CFR 404.976(b) and 416.1476(b). If scheduled to appear in person, the Social Security Administration (SSA) will reimburse the claimant and any representative for travel to and from the appearance site. SSA will not reimburse expenses of witnesses because the purpose of the appearance is for oral argument, not for testimony. The AC will determine whether any other person relevant to the proceedings will appear by VTC, telephone, or in person based on the circumstances described in 20 CFR 404.936(c)(4) and 416.1436(c)(4).
b. Composition of the Appearance Panel
20 CFR 422.205(b) specifies (1) that appearances will be conducted by a panel of not less than three AAJs of the AC designated in the manner prescribed by the Chair or Deputy Chair, or his or her delegate, and (2) that concurrence of a majority will constitute the AC decision. The Chair of the AC may designate an ALJ to serve as an AAJ of the appearance panel. The Chair will not designate an ALJ who was previously involved in the case under review (see 20 CFR 422.205(f)).
The Chair or Deputy Chair, or his or her delegate, will designate the AAJs to serve on the appearance panel based on the circumstances of each case and will also designate one of the three AAJs as chair of the panel. If an AAJ of the panel cannot attend, the Chair or Deputy Chair, or his or her delegate, will designate a new AAJ to serve.
c. Scheduling the Appearance
After the panel of AAJs and the manner of appearance have been designated, the Executive Director's Office (EDO) will make arrangements for the appearance in the designated manner.
The EDO will forward information about the appearance to the AAJ serving as chair of the panel. Support staff will prepare and send a letter to the claimant and any representative advising them of the date, time, place and manner for the appearance. The AC will send the notification at least 20 days before the date of the scheduled appearance. The support staff will establish a diary for call-up 13 days prior to the scheduled date of the appearance, unless special circumstances require otherwise.
E. Responsibilities and Actions of the Analyst Before the Appearance
In preparation for the appearance, the analyst will review the response(s) to the notice granting review, the request for the appearance, and any other document(s) submitted by the claimant or any representative.
The analyst will update his or her analysis to include the following:
an evaluation of any arguments or contentions,
an evaluation of any additional evidence submitted and a recommendation as to whether any additional evidence should be admitted into the record because it meets the criteria in 20 CFR 404.970 and 416.1470, and
a statement from the analyst that he or she has verified that the notice granting review was sent to the last known address for the claimant and any representative.
The analyst will return the case to the panel chair 12 days before the appearance date. The analyst will also send an email to the panel chair indicating the updated analysis is complete.
F. Conducting Oral Arguments Before the AC
The panel will consider additional evidence that meets the criteria in 20 CFR 404.970 and 416.1470. The panel chair will take the lead in questioning. The other AAJs may ask questions as they desire. The claimant or the representative may argue the merits of the case. The proceedings will be recorded. The panel will decide whether to prepare a transcript.
After the appearance, the panel will reach a conclusion. Concurrence of a majority of the panel will constitute the AC decision. The AAJs on the panel who agree with the decision must sign the decision. The name of an AAJ who does not agree with the panel's action will not appear on the decision.