Last Update: 9/2/05 (Transmittal I-2-63)
In order to aid implementation of the Commissioner's Short Term Disability Project Plan, OHA now makes available to all claimants and claimant representatives uniform procedures and guidelines on the submission of proposed decisional language. Use of these procedures is based on the voluntary participation of the claimant or claimant representative, who may submit proposed decisional rationale and proposed findings of fact and conclusions of law in any case and at any time in the hearing process. Unrepresented claimants may submit proposed decisional language on their own behalf or may use the assistance of an advocate for this purpose.
In addition to the Commissioner's Short Term Disability Project Plan, SSA has issued regulations which permit the ALJ to issue bench decisions. In this process, ALJs make verbal findings of fact and conclusions of law on the record, and also use a checksheet which is made an exhibit in the administrative record. Claimants and representatives may submit a proposed checksheet that contains proposed decisional rationales and proposed findings of fact and conclusions of law in any case which is proper for a bench decision. (See 20 CFR §§ 404.953(b), 416.1453(b); I-5-1-17.)
See I-2-8-98 Exhibit, for an informational flyer which briefly describes the process and OHA's requirements for submitting decisional language or proposed checksheets to be utilized in the ALJ issuance of bench decisions. The flyer may be duplicated and mailed to claimants and representatives to ensure that they are apprised of OHA's policy on submitting decisional language or proposed checksheets. It should also be made available to claimants and representatives along with other bulletins, booklets and notices routinely displayed in each HO's waiting room.
Representatives are not to be required to submit proposed narrative rationale, findings of fact, or conclusions of law for use in a decision or for use in the proposed oral bench decision checksheet. OHA policy permits ALJ use of proposed decisional language or proposed checksheets submitted voluntarily by claimant representatives as part of their on-going representational responsibilities.
Making use of narrative rationales, findings of fact, conclusions of law, or checksheets submitted by a claimant or representative is permitted when the findings of fact and conclusions of law are the product of the conscientious and independent judgment of the ALJ, and the written rationale supports the findings and decision. In the case of a bench decision, the verbal rationale and checksheet must support the verbal findings of fact and conclusions of law. The actual decision in the matter remains that of the ALJ. In cases in which the ALJ has not issued a bench decision, the actual preparation of the decision remains the responsibility of the staff attorney and paralegal specialist assigned to the case. The decision writer must ensure that the ALJ's instructions with respect to the rationale, findings and conclusions are accurately reflected in the final draft of the decision.
In order to receive maximum benefit from the use of these practices:
HOs should encourage claimants and their representatives, who wish to do so, to provide proposed decisional language in the form of a narrative rationale, a numbered list of findings, and a summary of the decision (see I-2-8-12, Expedited Fully Favorable Decisions, and I-2-8-98 Exhibit).
NOTE:
Finding DAA a contributing factor material to the determination of disability precludes a fully favorable decision.
In preparing a decision using language provided by a claimant or representative, macros already available in the Document Generation System (DGS) may be used to draft a numbered list of findings and a summary of the decision.
In those cases where claimants or representatives submit proposed decisional language on computer disks, appropriate measures must be taken to protect the HO computer systems from potential damage caused by the use of nongovernment software (e.g., exposure to computer viruses).
Any practice of using language from claimants or representatives in the preparation of ALJ decisions must be implemented within the following guidelines:
The process must be voluntary for both the claimant or the representative and the ALJ. An ALJ may not order any claimant or representative to submit a proposed decision. Moreover, an ALJ is not required to use language from a claimant or representative, or provide reasons for not using such language, in a decision in any case.
The process must be open to represented and unrepresented claimants. Further, if decisional macros are available for representative use, they are to be made available to any unrepresented claimant, upon request. HOs will ensure that each representative and each unrepresented claimant is apprised of procedures for submitting proposed decisional language.
The proposed decisional language may be received at any time and at any stage of the proceeding, beginning with the filing of the request for hearing and extending through any post hearing time limit set by the ALJ.
Proposed decisional language submitted by a claimant or representative must be reviewed by the HO supervisory staff attorney, or a staff attorney or paralegal specialist designated by the HO supervisory staff attorney, in conjunction with the review of the case for decision writing.
The final ALJ decision, in which language proposed by a claimant or representative is used, must comport with OHA's existing instructions with respect to format and legally sufficient rationale and findings.
Any practice of using language from claimants or representatives in the preparation of a proposed checksheet to be used in conjunction with the issuance of an oral bench decision must be implemented within the guidelines set forth in I-5-1-17: