Last Update: 8/31/11 (Transmittal I-2-83)
An Administrative Law Judge (ALJ) may seek clarification of an Appeals Council (AC) remand order only when:
The ALJ cannot carry out the directive(s) set forth in the order; or
The directive(s) appears to have been rendered moot.
ALJs will not seek clarification of AC remand orders under any other circumstances.
There are two types of clarification requests: formal clarification requests and expedited clarification requests. Expedited clarification requests are used only when the sole reason for remand is a lost or missing claims folder or missing recording of the hearing, and the folder or recording is subsequently found. Formal clarification requests are used in all other circumstances.
The following are examples of valid clarification requests:
The AC directs the ALJ to obtain a hearing test and examination performed by a qualified otolaryngologist. There is no otolaryngologist in the area servicing the hearing office (HO).
The AC remands a case because “the Certified Electronic Folder is not exhibited and does not contain all of the medical records referenced in this case.” However, the official claims record upon which the ALJ issued an unfavorable decision is a paper file, and the paper file does contain all of the medical records and exhibits, and all exhibits are marked.
The AC remands a case solely because the hearing recording cannot be located. The hearing recording is found before a new hearing is held.
The following are examples of clarification requests that are not valid and will not be granted.
The ALJ takes issue with the AC's finding that the claimant had “good cause” for failing to appear at the scheduled hearing.
The ALJ asks the AC to specify its basis for review, since the remand order did not cite a regulatory basis for granting review.
The ALJ states the AC does not explain why a medical expert is needed to resolve the reasons for remand.
Excluding the circumstances addressed by an expedited clarification request, if an ALJ has a valid clarification request, the ALJ may request clarification of an AC remand order by doing the following:
The ALJ, or designated HO staff, must request concurrence, in writing, from the Regional Chief ALJ (RCALJ). The ALJ's request must be made within 20 days of receiving the AC remand order and the claim file(s). The ALJ may submit the memorandum to the RCALJ via fax or email.
NOTE:
ALJs should not directly contact the Administrative Appeals Judges that signed and issued the remand order.
If the RCALJ agrees the clarification request is valid, the RCALJ, or a Regional Office (RO) staff designated by the RCALJ, will request concurrence, in writing, from the Chief Administrative Law Judge (CALJ) within 10 days after receiving the ALJ's request. The RCALJ may submit the concurrence to the Director of the Division of Field Procedures (DFP) in the Office of the Chief Administrative Law Judge (OCALJ) via fax at (703) 605-8501, or email at ¦¦¦ODAR OCALJ DFP.
NOTE:
If the RCALJ does not agree a clarification request is valid, the RCALJ will inform the ALJ of the decision as soon as possible so the hearing can proceed.
The CALJ will approve or disapprove the clarification request and inform the RCALJ or designee of the decision in writing via email within 10 days after the date the Director of DFP received the RCALJ's request for concurrence. After the CALJ informs the RCALJ or designee of the decision, the RCALJ or designee will inform the ALJ of the decision.
If CALJ approval is obtained, the ALJ or designated HO staff will take the following actions:
Prepare a request to the AC that includes the claimant's full name, Social Security number, and the following statement at the beginning of the clarification request:
The Chief Administrative Law Judge has approved this request for clarification of an Appeals Council remand order.
This statement is necessary because the AC generally will not accept clarification requests that have not been approved by the CALJ.
Notify the claimant and any representative of the clarification request. The AC generally will not accept clarification requests without corresponding documentation that the claimant and representative, if any, have been notified of the request. File this documentation in the paper claim file or upload the notification in the certified electronic folder (CEF) before sending the request to the AC.
Send the approved clarification request and claim file(s) to the AC.
For paper files, send the information to:
Executive Director, Appeals CouncilFor fully electronic cases, forward the information to the AC, including any emails from the offices of the RCALJ and CALJ. The email should be sent to ¦¦¦ODAR OAO, with the subject line “Formal Motion for Clarification,” followed by the claimant's last name.
Send a copy of the request to the RCALJ and CALJ (to the attention of the Director of DFP).
The AC will respond to the ALJ in writing, with copies to the claimant, representative, RCALJ, and CALJ (Attn: Director of DFP), within 20 days after the date it receives the clarification request and claim file(s).
NOTE:
The AC will not vacate a Remand Order after a new hearing has been held.
When the sole reason for remand is a lost or missing claims folder, or a missing recording, and the folder or recording is subsequently found, the following process may be used to request clarification from the AC:
NOTE:
The definition of “missing” hearing recording includes “inaudible” hearing recordings. Therefore, if a case is remanded solely because the hearing recording is inaudible, but the recording is later found to be completely audible, the following procedures may be used.
For paper cases, the Hearing Office Director (HOD), Group Supervisor (GS), or other management official should determine that all exhibits are in the original file and are marked. When the recording of the hearing is located, the HOD, GS, or other management official must ensure the recording is completely audible.
In a CEF case, HO staff must ensure the digital recording of the hearing is uploaded to the CEF and the CEF recording is completely audible.
NOTE 1:
If the HO submits a CD copy of the recovered recording, the AC will decline the motion for clarification because the CEF is considered incomplete without an official hearing recording uploaded to the Multimedia Files section. Therefore, if the recording is completely audible but the recovered digital recording cannot be uploaded to the CEF, the HO must make the claims folder a paper case to use the expedited clarification process. The HO can print out the entire claims file, attach a CD copy of the recording, and send the entire paper claims file with the CD to the AC (after following the instructions noted below).
NOTE 2:
It is not anticipated that claims will be remanded for a lost or missing claims folder in a fully electronic case. However, should this be the only reason for remand, HO staff may use the procedures noted below to notify hearing office management in OCALJ. These referrals will be handled on a case-by-case basis, and appropriate instructions will be given to the HO.
If the claim was remanded from a federal court, the HO must also obtain a written statement from the attorney who represented the claimant in federal court, or from the claimant, if he or she was unrepresented (pro se) in court, stating the representative or claimant agrees the AC remand should be vacated because the lost file was found or the lost recording of the hearing was found. A sample statement is included in section D below. If the attorney, or claimant appearing pro se, does not agree, the expedited clarification process cannot be used and a new hearing must be provided.
Once step 1 or 2 is completed (and 3, when applicable), the HOD, GS, or other management official should submit the expedited clarification request via fax or email to the Branch Chief of the Field Practices Branch (FPB), Division of Field Procedures, in OCALJ. Faxed requests should be sent to (703) 605-8501, and email requests to ¦¦¦ODAR OCALJ DFP.
The request must include both:
A statement indicating it is an expedited request for clarification in which the sole issue on remand is a lost file, lost recording of the hearing, or both. In all cases, paper or electronic, the statement should certify the file is complete, the exhibits are marked, and the recording of the hearing is completely audible; and
A copy of the AC remand order.
On receipt, OCALJ will evaluate the request to determine if it is appropriate for expedited clarification, and will issue a memorandum to the HO, agreeing or disagreeing with the request.
If OCALJ agrees with the request and a paper claim file is involved, the HO will send a copy of the memorandum, with the claims file, to:
Executive Director, Appeals CouncilIf OCALJ agrees with the request and a CEF is involved, the HO will fax a copy of the memorandum, with a copy of the remand order, to (703) 605-7101.
If OCALJ disagrees with the request, the HO will proceed with the hearing.
In all cases, the HO must receive notification from the AC that the remand order is vacated before the HO can clear the remand from its docket. If it has been more than 30 days since the HO sent the request (and paper file, as applicable) to the AC, the HO may request a status update by sending an email request to ^ODAR HQ OAO Special Reviews from OCALJ. The request must include:
the claimant's name,
the involved Social Security number,
the date the paper folder was sent to OAO or, for fully electronic cases, the date the HO faxed a copy of the OCALJ memorandum,
a request for status, and
the name of the HO contact person.
COURT REMAND
STATEMENT BY REPRESENTATIVE OR CLAIMANT
AGREEING TO
VACATION OF APPEALS COUNCIL REMAND ORDER
Date _______________________
Case Name:___________________________________
I am the attorney of record/claimant (circle one) in the above entitled civil action. An order of remand was entered because the claim folder/hearing recording (circle one or both) could not be located and a certified administrative record could not be prepared. The claim folder/hearing recording (circle one or both) was subsequently located.
I agree to the vacation of the Appeals Council's Order of Remand.
____________________________
Representative or Claimant Signature
____________________________
Representative or Claimant Name (Typed or printed)
_____________________________
Representative or Claimant Address