TN 2 (11-11)

A. The Appeals Council review process

The appellant or other party to a claim who is dissatisfied with the administrative law judge (ALJ) hearing decision or the dismissal of a hearing request may request an Appeals Council (AC) review of ALJ’s decision or dismissal.

The AC may grant the request for review; or it may deny or dismiss the request. For granted requests, the Appeals Council will either issue a decision or remand the case to an ALJ. The AC will inform the parties about the action the AC took by sending notice to the parties’ last known address.

The AC can also review a hearing decision or dismissal, on its own motion, within 60 days after the date of the decision or dismissal.

NOTE: If the AC requests a folder, see GN 03104.360.

B. When the Appeals Council will review a case

The AC will review a case for any of the following reasons.

• There appears to be an abuse of discretion by the ALJ.

• There is an error of law.

• The actions, findings, or conclusions of the ALJ are not supported by substantial evidence.

• There is a broad policy or procedural issue that may affect the public.

C. Reviewing decisions

1. Reviewing decisions based on an application for benefits

The AC will consider new and material evidence only where it relates to the period on or before the date of the ALJ hearing decision.

2. Reviewing other decisions not based on an application for benefits

The AC will review the entire record, including new and material evidence. The AC will review the case if it finds the ALJ actions, findings, or conclusions are contrary to the weight of evidence currently on record.

3. Evidence and protective filing for future applications

Evidence that relates to time after the date of the ALJ decision will establish a protective filing for a future application. See SI 00601.000 for information on protective filing.

4. Appellant requests for evidence from the Appeals Council

The appellant may request copies of documents or other evidence on which we based the hearing decision or dismissal by writing to the address below. We may charge the appellant the cost of providing copies.

Office of Analytics, Review, and Oversight, Office of Appellate Operations
5107 Leesburg Pike
Falls Church, VA 22041-3255

D. Appeals Council actions

The Appeals Council (AC) may take the following actions.

1. Issue a decision

Issue a decision that affirms, modifies, or reverses the ALJ hearing decision. The AC decision is the final decision of the Commissioner, unless it is reopened by the AC or appealed to a Federal court.

2. Dismiss the request for review

Dismiss the request for review if any of the following are true.

• The Supplemental Security Income (SSI) appellant files a written request for dismissal.

• The request for review was not filed timely.

• The SSI appellant dies and there is no one adversely affected by the dismissal.

• The requestor of the review is not a proper party.

The dismissal is binding and not subject to further review. (See AR 99-4(11) for appellants who reside in Alabama, Florida, or Georgia.)

3. Deny the request for review

Deny the request for review on the basis that the ALJ hearing decision or dismissal was proper. The AC will notify the SSI appellant or representative that they may request court review of the ALJ decision if they disagree with the AC’s action. See GN 03104.350A.2. AC’s Action on Request for Review.

4. Vacate the decision

Vacate the decision and remand the case to an ALJ for further proceedings and a new hearing decision. See SI 04040.010G in this section and GN 03104.350A.2. for further information about vacating an ALJ decision.

5. Reopen a final decision or favorable determination on a subsequent claim

Reopen a final decision of an ALJ or a favorable determination on a subsequent claim under the rules of administrative finality (see SI 04070.000 and SI 04040.025C.1.).

6. Take own motion review

The AC may, on its own motion, decide to review the ALJ decision or dismissal any time within 60 days after the date of the ALJ decision or dismissal. On its own motion, the AC may review a random sample of title II disability decisions and dismissals that were not appealed. The AC may also review decisions and dismissals referred by effectuating components. The AC mails notice of the review to all parties to the hearing at their last known address.

NOTE: Do not effectuate cases the AC reviews on its own motion. If a case is erroneously effectuated, do not release any additional underpayment and leave in pay until the AC decision or on remand, the revised ALJ decision.

E. Appeals Council decision or denial of request for review is binding

The AC decision or the ALJ decision if the AC denied the request for review is binding unless the appellant files an action in a U.S. District Court or the decision is revised.

F. Paying interim benefits in cases of delayed final decisions

Sections 223(h) and 1631(a)(8) of the Social Security Act state that in cases where the Commissioner has not issued a final decision within 110 days after the date of the ALJ favorable decision, and the appellant is entitled to title II or title XVI based on disability, we shall pay current benefits to the appellant. If the field office is aware of a case that is over the 110 days, see SI 02007.020 for follow-up procedures. See DI 42010.205 and SI 02007.001 for information about when we pay interim benefits.

G. Vacating an administrative law judge decision

Vacating an ALJ decision renders it null and void and reinstates the ALJ hearing request. The reconsidered determination is the final decision of the Commissioner.

If the ALJ hearing decision affirmed a disability or blindness cessation determination, thereby terminating payment continuation, then vacating the ALJ decision would return the adjudicative process to the point prior to the rendering of the vacated decision. We may resume payment continuation retroactively, including any cost-of-living or other increases that may have occurred in the interim.

When the AC vacates a hearing decision, the AC will send a Form HA-517 (Order of Appeals Council) to the appellant, the field office, and regional office.

Upon receipt of an AC remand, update the Supplemental Security Record (SSR) via the Modernized SSI Claims System (MSSICS) appeals path (MSOM MSSICS 020.001) or MSSICS direct SSR update process (MSOM BUSSR 002.001) to show that the claim is pending in a hearing office as of the date of the AC Order.

H. Action on a decision recommended by an administrative law judge

The AC may adopt, modify, or reject a decision recommended by an ALJ. The appellant may file briefs or other written statements about the facts and law relevant to the case. The AC will issue a decision after the AC conducts its proceedings.

I. Notices

The AC will send notices following these instructions.

1. The AC decides to issue a fully favorable decision

The AC will issue a notice of decision and the decision, without first giving notice that the AC decided to review.

2. The AC decides to propose a partially favorable or an unfavorable decision

The AC will issue a notice that includes the following.

• States the reason(s) for review

• Defines the issue(s) to be considered by proposing a finding or findings of fact and a decision

• Specifies how the parties may respond

• Advises that it will issue the proposed decision unless it receives additional evidence or legal arguments that warrant a change in the proposed action

3. The AC decides to remand a case to an ALJ

The AC will issue a notice of remand and a copy of its order of remand to all parties. The order of remand will state the reason(s) for review; and identify the issue(s) that the ALJ is directed to consider.

4. The AC decides to remand a case to an ALJ after deciding to review on its own motion

The AC will issue a notice to the parties that includes the following.

• The reason for review.

• The AC’s proposal to remand the case to an ALJ to review the issues.

• How the parties may respond.

• Advise the parties that the AC will issue the proposed remand order unless it receives additional evidence or legal arguments why it should not do so.

5. The AC decides to review an ALJ decision on its own motion but is not prepared to take or propose an action.

The AC will issue a first notice within 60 days of the ALJ decision that defines the issue(s) to be decided.

• If the AC then decides to issue a fully favorable decision, the AC will issue a second notice stating the fully favorable decision.

• In all other cases, the AC will issue a notice that proposes an action and gives the parties a chance to respond before it takes action.