Aug 13, 2017

New Remand Procedure

     From HALLEX, the manual for Social Security's Office of Disability Adjudication and Review (ODAR) (and no, the name hasn't changed yet):
I-2-5-12 Remand for Revised Determination Last Update: 8/3/17 (Transmittal I-2-211)  
A.When to Remand for a Revised Determination After a claimant files a request for hearing but before an administrative law judge (ALJ) holds a hearing, an ALJ may, under certain circumstances, remand a case to the Disability Determination Services or other component that issued the determination. See 20 CFR 404.948(c) and 416.1448(c). An ALJ may remand for a revised determination on his or her own initiative, or at the request of a claimant. An ALJ will only remand a case for a revised determination if there is reason to believe the revised determination would be fully favorable to the claimant. While the regulatory language is quite broad, the ALJ will only consider this requirement met if the ALJ is reasonably certain a revised fully favorable determination will be issued on remand. For example, the ALJ may receive new and material evidence that appears to change the outcome, or a change in the law permits a favorable determination. ...

12 comments:

Anonymous said...

This seems time consuming and inefficient, at best. The ALJ should simply issue an O-T-R, or if there are some issues which require a little more time to evaluate, the ALJ should work hand in hand with a Senior Attorney Advisor who is already in the same Hearings Office. Remanding the case back to DDS will be time consuming, given the backlog of cases they already have, plus there is increased potential the adjudication process will be further delayed. Further, if the purpose of the remand is due to new medical evidence or interpretation of law, it makes much more sense to have the ALJ work with a Senior Attorney Advisor already in their office. There is no one at DDS with the expertise an experienced Senior Attorney Advisor possesses. Capitalizing on the experience and skill set of the Agency's Senior Attorney Advisors who are already in the Hearings Office makes much more sense, and without a doubt would be much more efficient.

Again, I seriously question recent decisions made by Agency leadership, especially the best allocation and use of existing resources, given the tight budget. The restructuring plan is pointless - The same old rodeos from the past which all failed. When viewed beyond the smoke and mirrors the restructuring plan appears to present, the only substantive changes are to Office names and job titles, and the ONLY beneficiaries of the restructuring plan are favorites, friends and relatives of Management who will be moved into Management, causing further unnecessary broadening of the top of the bureaucracy, which is the LEAST THING this Agency needs, and will do absolutely nothing to reduce the backlog of cases. Support staff is desperately needed in the Hearings Offices, not hiring significant numbers of ALJ's. You need SCT's, CT's, general clerical workers, and Attorney decision writers, (no reason to promote non-Attorneys to decision writer, given the numerous Attorneys deep in debt with student loans, who will take the jobs - sheesh!). As I said above, put your experienced Senior Attorneys to good use, i.e., doing Senior Attorney work as the position was always intended. Their salary and pay is much less than that of an ALJ, and makes much more budgetary sense then hiring numerous ALJ's, plus they have more expertise and require no training, which new ALJ's require.

Anonymous said...

I don't understand. If an ALJ with jurisdiction over a case is reasonably certain that new evidence will direct a fully favorable, why should he remand it instead of issuing an on the record decision himself?

Anonymous said...

If this procedure is followed, does the ODAR get a dismissal stat as opposed to a favorable? Serious question; not sarcasm. Is this a way to get meritorious claims paid without looking like the ALJ was paying "too many"?

Anonymous said...

If an ALJ is going to spend the time reviewing the case and believes it should be paid, then pay it. Remanding it back to the DDS won't assure that it is paid.

The process of informal remands has been utilized off and on for years and never seems to do anything of substance in reducing the backlog.

Anonymous said...

@9:37

I assume it would result in a dismissal since the hearing request would be moot. I don't think it's a way around paying too many cases, though, as I'm not sure what that threshold currently is.

I won't be utilizing this procedure as I'd rather make sure the case is favorable than roll the dice and send it back. Plus, my file review is so close to the hearing date that it would only result in a need to postpone the hearing pending the remand. Why am I going to delay the claimant's decision benefits when I can handle it myself much sooner (including writing the decision)?

Anonymous said...

Agreed. This is exactly why they have OTRs or even bench decisions. Just a waste of time.

Anonymous said...

First of all these are not new procedures. The regs in question (941/1441 & 948/1448) have been around for a long time and the HALLEX transmittal talking about the updates to I-2-5-10 and I-2-5-12 states that the changes thereto are mostly minor and editorial (copied below).

Second, if ODAR/OHO is planning some big new push to utilize these procedures, it is not yet evident (like, at all) and I would not leap to that inference just because somebody whose job it is to keep all the HALLEX sections updated finally got around to these particular sections. Not everything is a conspiracy against either claimants or SAAs (or one particular SAA).

Finally, I'm not an ALJ (just an AA) but I have to believe the number of ALJs who would think sending a case back to DDS for a *third* review would be a good idea and an efficient use of resources is approximately the same as the number who still believe in the tooth fairy. It's enough of a paperwork and time hassle to send a case back for a CE, for pete's sake. The ALJs know the DDSs are overworked and they know the quality (or lack thereof) that proceeds therefrom. I think most of them subscribe to the maxim of if you want something done right, do it yourself. If they really do see a case that is likely favorable, they will in fact OTR it, or at least hold the hearing and pay it if warranted, rather than send it back to DDS.

The regs in question appear to provide a way, at least in theory, to hot-potato the nightmare cases that had very little evidence at the DDS level (and consequently the DDS review was cursory and the RFCs useless), but then get hundreds to thousands of pages dumped in at the hearing level. Well, those do suck, but I do believe ALJs know that some of those do come with the territory and they are more inclined to suck it up and deal with it when those occur rather than just kick them back to DDS for a while.

Anonymous said...

********
Transmittal No. I-2-211
Chapter: I-2-5

Subject: Obtaining Evidence

Background
This transmittal amends chapter I-2-5 of the Hearings, Appeals and Litigation Law (HALLEX) manual to update information relating to prehearing case reviews by other components and remands for revised determinations.

Explanation of Content and Changes
HALLEX I-2-5 is amended as follows:

I-2-5-10 A – We made minor editorial and formatting changes to the existing language to more closely mirror the language in 20 CFR 404.941 and 416.1441. We moved language relating to scheduling a hearing and prehearing conferences to subsection C.

I-2-5-10 B – We changed the title to “When an ALJ May Refer a Case for Prehearing Case Review” to more accurately reflect the information in the section. We made minor language changes to more closely mirror the language in the regulations.

I-2-5-10 C – We removed the information previously in subsection C as it was duplicative of information in HALLEX I-2-4-45, and we replaced it with a reference to that section. We retitled the subsection “When to Schedule a Hearing After a Case Is Sent for Prehearing Review” and incorporated information previously in subsection A related to a delay in scheduling a hearing. We also updated the language to more closely mirror the language in the regulations. Additionally, we added a previously missing instruction related to retaining the case in Master Docket during a prehearing case review. We also incorporated a NOTE, previously in subsection A, regarding prehearing conferences.

I-2-5-10 D – We changed the title to “Transmitting a Paper Claim(s) File” for consistency with other HALLEX instructions and updated the information.

I-2-5-10 E – We removed the section in its entirety as it was duplicative of instruction in HALLEX I-2-4-45.

I-2-5-12 – We changed the title to “Remand for Revised Determination” to more closely mirror the language in 20 CFR 404.948(c) and 416.1448(c).

I-2-5-12 A – We added subsection A titled “When to Remand for a Revised Determination” and updated the language to more closely mirror the language in 20 CFR 404.948(c) and 416.1448(c). Additionally, we clarified that an administrative law judge (ALJ) will only use the procedures when, in addition to the regulatory requirements, the action would be more administratively efficient. We also added information to more clearly distinguish remands for revised determinations from prehearing case reviews.

I-2-5-12 B – We added subsection B titled “Procedures” and added previously missing instruction for preparing a remand order. We updated language related to a claimant's objections to the remand to more closely mirror that of the regulations. We added a NOTE to incorporate a previously missing instruction for re-obtaining jurisdiction if the ALJ finds, based on an objection, that he or she should not have remanded the case. We also added a previously missing instruction for dismissing the request for hearing in the Case Processing and Management System. We removed information related to remands involving mental impairments as those regulations have been updated and now reference 20 CFR 404.941 and 416.1441 procedures.

Date: August 3, 2017

Anonymous said...

Isn't the standard of proof at an ALJ hearing a preponderance of the evidence? If an ALJ is "reasonably certain" a favorable decision should issue, doesn't that surpass the preponderance of the evidence standard?

Anonymous said...

@6:25 stated, "Not everything is a conspiracy against either claimants or SAA's, (or one particular SSA).

Mr./Ms. Attorney Advisor, it's really wonderful to see the complete lack of appreciation you obviously have for those before you who plowed through thick and thin, and continue to do so on your behalf, for the GS-13 SAA position. No one alluded to any conspiracy theory here. How in the hell could you possibly reach this conclusion from any of the commenters? You conspiracy remark is either delusional, naive, or an early career attempt to suck up to TPTB for your own self-interest. GOOD LUCK WITH THIS. Come back in a few, and let us all know how that works out for you.

Tim said...

7:40 AM. In theory, yes...
"In theory, there is no difference between theory and practice. In practice, there is!" Yogi Berra.
In practice, SS and ALJs seem to want beyond a reasonable doubt! There is often more evidence in cases denied by SS than in murder cases ending in a guilty verdict.

Tim said...

Scott Peterson case: jurors said they "believed" he was guilty. There was no hard evidence to support the prosecution, yet he was convicted! Imagine if an ALJ went by the same standard! People denied with hundreds of pages of medical documents, over years, with x-rays, MRIs, blood tests and other tests... yet denied at step 5 because the ALJ "believed" the VE's claim that the claimant "theoretically" could possible do 3 jobs!