I-3-8-12.Request for Appearance
Last Update: 9/27/22 (Transmittal I-3-192)
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 sends a separate notice of review with its proposed final action, the AC will notify the claimant and any representative that they may request an appearance before the AC to present oral argument.
The AC will grant a request for an appearance if it determines that:
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 for AC review. 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 Appeals Council did not grant the claimant's request for an appearance because the case does not raise an important question of law or policy, 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, there is no important question of law or policy, and oral argument would not 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 an appearance to present oral argument. The letter will explain the basis for the action and furnish an opportunity to present arguments in writing within 30 days.
After the AC approves and releases the letter, the Office of Appellate Operations (OAO) branch support staff will diary the case for 35 days awaiting written arguments from the claimant or any representative(s).
a. Claimant or Representative(s) Submits Written Statement, Additional Evidence, or Both: Fully Favorable Decision Now 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, additional evidence, or both. 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(s) Submits Written Statement, Additional Evidence, or Both: 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 AC did not grant the claimant's request for an appearance because the case does not raise an important question of law or policy and 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(s) Do Not Respond
After the diary period expires, the analyst will draft an appropriate decision for the AC's consideration. If the AC receives a written statement or additional evidence after it issues its decision, the analyst will consider whether the material presents a basis for reopening and revising the decision (see HALLEX I-3-9).
D. Analyst Recommends Granting the Request for Appearance
If, after receiving a request for an appearance, the record is complete and the analyst recommends granting the request, the analyst will update any prior analysis of the case, as necessary, and prepare a recommendation for the AC to grant the request.
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 described 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 OAO Executive Director or Deputy Executive Director, or their 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(s) relevant to the proceeding (see 404.976(c), 416.1476(c), and 422.205(d)). 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(c) and 416.1476(c)). 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(d) specifies that:
appearances will be conducted by a panel of not less than three AAJs of the AC designated in the manner prescribed by the OAO Executive Director or Deputy Executive Director, or their delegate; and
concurrence of a majority will constitute the AC decision.
The OAO Executive Director or Deputy Executive Director, or their 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 OAO Executive Director or Deputy Executive Director, or their delegate, will designate a new AAJ to serve.
c. Scheduling the Appearance
After the AC has designated the panel of AAJs and the manner of appearance, 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. 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(s).
The analyst will update their 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 verifying that the AC sent the notice granting review 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 Argument 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, if any, may argue the merits of the case. The AC will make a recording of the proceedings. 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.