I-5-3-21.National Adjudication Team Instructions
|Purpose and Applicability|
Issued: January 11, 2016
Revised: October 2, 2017
I. Purpose and Applicability
This Temporary Instruction (TI) sets forth procedures for the Office of Hearings Operations (OHO) attorney advisor (AA) program. The AA program allows AAs to issue certain fully favorable decisions on the record (OTR) when appropriate, before a hearing request is assigned to an administration law judge (ALJ). The AA program is an invaluable resource to assist in timely issuing favorable decisions, when warranted, and reducing the backlog of pending hearing requests.
This TI is issued in accordance with the final rule, “Extension of Sunset Date for Attorney Advisor Program,” which became effective on June 5, 2015. See 80 FR 31990. The final rule extended the AA program until August 4, 2017. See 20 CFR 404.942 and 416.1442. This TI replaces any internal instruction previously provided through other mechanisms (e.g., memorandum or bulletin).
This TI applies to AAs selected for the National Adjudication Team (NAT). Only AAs selected for the NAT are allowed to participate in the AA program. Other AAs within OHO or in other components, regardless of prior involvement in an AA program, are not authorized to participate in the AA program.
The AA program was reinstated in November 2007. At that time, certain hearing office (HO) AAs, HO directors (HOD), and group supervisors (GS), as well as designated AAs in a regional office (RO), were authorized to issue fully favorable OTR decisions. Each AA was given a unique decisionmaker code in the Case Processing and Management System (CPMS) using the 8XXX series (e.g., 8001, 8002, 8A00, 8A01, etc.).
The AA program was slightly modified in November 2013. At that time, the Office of Disability and Review (ODAR), the predecessor to OHO, centralized the selection of cases for AA screening and adjudication in the National Screening Unit (NSU). The NSU selected all cases to be screened and adjudicated by AAs, HODs, and GSs nationwide. Pursuant to other procedural and policy changes, AAs were only allowed to sign fully favorable OTR decisions when:
The claimant's impairment(s) met or medically equaled one of the listed impairments in Appendix 1 to Subpart P of Part 404 (listing);
Special medical-vocational profiles applied, showing an inability to make an adjustment to other work; or
A grid rule in Appendix 2 to Subpart P of Part 404 (medical-vocational guidelines) directly applied.
In April 2015, the NSU was replaced by the NAT. The NAT centralized ODAR's AA function with a small group of adjudicators who screen cases to identify potential fully favorable OTR decisions, and:
Prepare analyses for ALJs in cases screened for OTR decisions that require a hearing; or
Issue timely, policy compliant, and legally sufficient fully favorable OTR decisions in cases that are supported by the evidence of record.
With this new procedural and policy change, NAT AAs are the only attorneys designated as decisionmakers in CPMS and who can sign fully favorable OTR decisions. A NAT AA may issue a fully favorable OTR decision when:
A claimant's severe impairment meets a listing at Step 3;
A claimant's severe impairment medically equals a listing at Step 3 based on medical expert (ME) evidence;
Applying the special medical-vocational profiles results in an inability to make an adjustment to other work;
Directly applying a grid rule in the medical-vocational guidelines results in a finding of disability at Step 5; or
Using the medical-vocational guidelines as a framework results in a finding of disability at Step 5.
A. Selecting Cases for NAT review
The NAT administrative team will select and assign cases for NAT AA review. NAT AAs may review a case when:
New and material evidence is submitted;
There is an indication that additional evidence is available;
There is a change in the law and regulations; or
There is an error in the record or another indication that a fully favorable decision may be warranted.
Despite the presence of the usual selection criteria, the NAT AAs will not review any case that is already assigned to an ALJ.
In some cases, the NAT administrative team may select a case for review but a NAT AA will ultimately not have the authority to issue a fully favorable decision (see Hearings, Appeals and Litigation Law (HALLEX) manual I-5-3-21 II above). In this situation, the NAT can refer these cases to an ALJ for further consideration of an OTR decision. See HALLEX I-5-3-21 III.F. below.
B. Assignment of Cases
Once the NAT has selected a case, the NAT administrative team will assign the case to a NAT AA. A NAT AA who selects a case for review may not assign the case to himself or herself.
Further, a NAT AA may not:
Reassign a case assigned to another NAT AA to himself or herself;
Assign a case to the NAT that the NAT did not select; or
Assign his or her adjudicator code to a NAT case.
C. Prehearing Review
1. Actions a NAT AA Will Take
Once a case has been assigned and is ready for prehearing review, NAT AAs will confirm that he or she has jurisdiction to review the case (e.g., the case was selected by the NAT administrative team, the request for hearing (RH) was timely filed, etc.).
The NAT AA will also initiate case development, including:
Updating earnings queries;
Requesting medical and other evidence, as appropriate, to assess impairment severity and formulate the residual functional capacity;
Consulting with the NAT administrative team as to whether requesting interrogatories from an ME or vocational expert (VE) is appropriate (i.e., a response to interrogatories is likely to result in a fully favorable OTR decision);
When approved, requesting interrogatories by adhering to existing procedures for obtaining expert testimony outlined in HALLEX I-2-5-34 and I-2-5-50, as well as other applicable instruction regarding interrogatories in HALLEX I-2-5-42 through I-2-5-60; and
Adding any ME or VE interrogatory and response to the claim(s) file, even if the response prevents the issuance of a fully favorable OTR decision.
When an interrogatory response precludes a fully favorable OTR decision, see HALLEX I-5-3-21 III.E below.
Additionally, the NAT AA will:
If necessary, call an unrepresented claimant or an appointed representative, document the contact on a form SSA-5002, Report of Contact, and associate the completed form with the claim(s) file;
Use electronic tools, including the Hearings and Case Processing System (HACPS), the Attorney Adjudicator Resources link on the Office of the Chief Administrative Law Judge (OCALJ) intranet site, and vocational resources, such as the OASYS program found in the Digital Library.
2. Actions a NAT AA Will Not Take
As part of prehearing review, NAT AAs will not:
Discuss amending the onset date with an unrepresented claimant;
Request consultative examinations;
Take sworn testimony;
Reopen prior decisions (ALJ, Appeals Council, or court);
Issue an order of dismissal;
Issue OTR decisions when the RH was untimely filed;
Issue unfavorable or partially favorable OTR decisions;
Issue an OTR decision on a RH based solely on non-disability issues (e.g., overpayments);
Issue an OTR decision in cases involving a closed period of benefits, or an onset date after the date last insured; or
Use the HACPS to generate instructions or hypotheticals.
D. Fully Favorable OTR Decision Warranted - Issuing a Decision
1. NAT AA Actions
When the NAT AA finds a fully favorable OTR decision is warranted, he or she will:
Request assignment of his or her adjudicator code to the case in CPMS;
Review eView for recently added electronic flags or messages;
Ensure that all medical and other evidence is associated with the claim(s) file;
Review the Information/Certified Earnings Record, Detailed Earnings Query, Summary Earnings Query, and the National Directory of New Hires (NDNH) to obtain information about work activity, disability insured status, and prior filing, as applicable, and associate the queries in section D of the claim(s) file (see electronic business process (eBP) section 3.2 L);
The NAT AA will check the reliability of the NDNH data before relying on the information. Additionally, while the NAT AA should also review the Master Beneficiary Record, Supplemental Security Income Detailed, and the Disability Wizard, these queries may contain personally identifiable information (PII) for other individuals. If applicable, the NAT AA must redact the PII of a person who is not the claimant before adding the query to the claim(s) file.
Draft and issue a policy compliant, legally sufficient, and fully favorable OTR decision (see HALLEX I-2-8-25 and Social Security Ruling (SSR) 96-1p: Policy Interpretation Ruling Application by the Social Security Administration (SSA) of Federal Circuit Court and District Court Decisions), including checking the box “Attorney Advisor Decision” on the Claimant/Rep/ALJ Info tab in the Findings Integrated Templates (FIT) (to ensure FIT generates the correct notice and decision language);
Confirm the decision notice is correct;
Complete the Hearing Level Disposition screen in CPMS, ensuring the impairment codes and regulation basis codes accurately reflect the decisional findings (codes automatically propagated into FIT may not be correct), and checking the “On-The-Record” box on the hearing level disposition screen;
Sign the decision and any associated fee agreement order; and
Update the status to show the appropriate employee for mailing and closing the case.
2. NAT Administrative Team Actions
When the decision is ready for mailing, the NAT administrative team will follow the OHO eBP to release the case, specifically:
Reopening prior claims in eView, when applicable;
Using central print whenever possible to mail the decision, or, when not available, preparing copies of the decisional documents for the claimant, the representative (if any), and the claim(s) file;
Closing the case in CPMS;
Forwarding any fee agreement documents to the effectuating component; and
When central print is not available, releasing the dated decision and any associated fee authorization to the claimant and appointed representative, if any.
E. Fully Favorable OTR Decision Not Warranted
When a fully favorable OTR decision is not appropriate, a NAT AA must document his or her rationale in a document associated in the private section of the claim(s) file. To do so, a NAT AA will use the Attorney Adjudicator Worksheet found in the Decisions folder in the Document Generation System (DGS). The NAT AA will prepare a brief summary of the case, an explanation of why a fully favorable OTR decision is not supported by the evidence, any recommendations for development or hearing, and a description of the issues that require resolution by the ALJ.
To alert the HO that the case was screened for an OTR decision, the NAT AA will also note in a remark in CPMS that:
A fully favorable OTR decision is not appropriate;
Notes are in the HACPS;
An analysis was completed and uploaded to the private section of the claim(s) file;
If applicable, ME or VE interrogatory responses are in the claim(s) file and need to be proffered to the claimant and appointed representative, if any; and
If applicable, the NAT AA recommends an ALJ OTR decision or a dismissal action, as explained in the analysis.
If the NAT AA recommends an ALJ OTR decision or a dismissal action, HO management will assign the case to an ALJ, in rotation, to consider the recommendation.
F. Post-Adjudicative Actions
1. Revising a NAT AA decision
A NAT AA may issue a revised fully favorable OTR decision of his or her own prior decision if:
A substantive error is discovered or additional evidence is received that, although not precluding the issuance of a fully favorable OTR decision, affects the NAT AA decision;
A revised decision will not be any less favorable to the claimant; and
NAT AAs may not issue revised decisions when an ALJ issued the decision. Additionally, if the decision was issued by another NAT AA, a NAT AA may only revise the decision if extraordinary circumstances exist which prevent the other NAT AA from revising the decision and the NAT administrative team approves the request to revise.
When revising a decision, the NAT AA will send a letter to the claimant and representative, if any, indicating the decision contained a substantive error or is affected by new evidence, and the decision is being revised. For additional instruction, see HALLEX I-2-9-80.
2. Vacating a NAT AA Decision
When necessary, an action vacating a NAT AA decision must be taken as soon as possible. Vacating a NAT AA decision is necessary if:
A substantive error is discovered or additional evidence is received that precludes a fully favorable OTR decision; or
The claimant objects to the decision and submits a request to continue with the RH.
Before taking any action to vacate the decision, a NAT AA must confirm that he or she has jurisdiction to vacate the decision (i.e., the Appeals Council is not reviewing the decision on its own motion pursuant to 20 CFR 404.969 and 416.1469).
When vacating a decision due to substantive errors or new evidence, the NAT AA will send a letter to the claimant and representative, if any, indicating the decision was issued in error and will be vacated. The letter will also advise the claimant that the claim will be scheduled for hearing based on the date of the original RH.
When vacating a decision due to an objection by the claimant, the NAT AA will confirm that the claimant sent a request to continue with his or her RH within 60 days of the decision. See 20 CFR 404.942(d) and 416.1442(d).
When it is appropriate to vacate the decision, the NAT administrative team will:
Select “Reactivate” under the Status and History tab in eView (this auto-establishes a new record in CPMS);
Add the following message in eView and remark in CPMS: “Terminate effectuation action on this case. It is being set for hearing because ______”;
Contact the effectuating component(s) by fax, telephone, or mail, to prevent payment; and
Transfer the case to the appropriate HO for additional processing.
3. Fee Petition Submitted After Fully Favorable Decision Issued
If the representative files a fee petition (usually because a fee agreement was disapproved or there is no fee agreement), the NAT AA will follow the procedures in HALLEX I-1-2-6 B.2., I-1-2-51, I-1-2-53, and I-1-2-57. In general, the NAT AA will:
Prepare a fee authorization order using DGS templates, replacing “Administrative Law Judge” with “Attorney Adjudicator;”
Sign the fee authorization in cases where the NAT AA was the decisionmaker;
Update CPMS to reflect fee petition information; and
Scan fee petition documents into the B section of the claim(s) file.
IV. Quality Review
NAT AA decisions may be selected for quality review by:
The NAT administrative team;
OHO staff outside of the NAT that performs in-line quality reviews;
The Appeals Council (under its own motion authority); or
Other components performing quality reviews.
NAT AAs will direct any NAT related questions to the NAT administrative team.
HO personnel will direct any questions to HO management, who will forward the questions to the RO if needed. Regional inquiries may be sent, via email, to the Division of Field Procedures in OCALJ at ¦¦¦ODAR OCALJ DFP.