POMS Reference

This change was made on Dec 8, 2017. See latest version.
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GN 03104.350: Appeals Council (AC) Jurisdiction

  • Effective Dates: 05/15/2006 - Present
  • Effective Dates: 12/08/2017 - Present
  • TN 4 (04-01)
  • GN 03104.350 Appeals Council (AC) Jurisdiction
  • The AC may review a case:
  • * when a claimant or representative files a request for review of an ALJ decision or dismissal, or
  • * on its own motion, (the AC will notify the claimant within 60 days after the date of the ALJ's decision or dismissal order), or
  • * on court remand.
  • The AC May reopen a determination or decision under the rules of administrative finality.
  • NOTE: In the First Circuit, pursuant to McCuin v. Bowen, AR 88-5(1) rescinded 2/23/94, the AC may not reopen after the 60-day own motion period unless the claimant requests reopening. In the Eleventh circuit, pursuant to Butterworth v. Bowen, AR 87-2(11) rescinded 8/6/98, only the ALJ may reopen an ALJ decision.
  • 1. Basis for AC Review
  • The AC may assume jurisdiction to review a case for any reason. It will review a case if:
  • * There appears to be an abuse of discretion by the ALJ; or
  • * There is an error of law; or
  • * The actions, findings, or conclusions of the ALJ are not supported by substantial evidence; or
  • * There is a broad policy or procedural issue that may affect the general public.
  • 2. AC's Action on Request for Review
  • The AC will notify the claimant and representative whether it will review the case. If the AC decides to review the case, the claimant may request to appear before the AC to present oral arguments and file written statements. If the AC takes own motion or grants review, it may:
  • * issue a decision which will affirm, modify, or reverse the ALJ hearing decision;
  • NOTE: The contents of an AC decision may not be disclosed except in accordance with Regulation No. 1.
  • * dismiss the claimant's request for hearing for any reason for which the ALJ could have dismissed the request for hearing, i.e., upon request of the party who asked for it, upon death of the party, or if such request was not timely filed. The AC may dismiss any proceedings before it if the claimant files a written request for dismissal, the request was not timely filed, the claimant dies and there is no one adversely affected by the dismissal, or the individual is not the proper party. Outside the Eleventh Circuit, the dismissal of a request for review is binding and is not subject to further review. AR 99-4(11), 10/26/99, applies to cases involving claimants who reside in Alabama, Florida, or Georgia at the time of the AC dismissal of the request for review of the ALJ decision and provides the claimant with the right to request judicial review.
  • * remand the case back to the ALJ. This vacates the ALJ decision (in whole or in part) and requires the ALJ to conduct further proceedings. With respect to AC remands in non-court cases, the ALJ is not necessarily required to issue a new decision on remand. As appropriate, the ALJ could dismiss the request for hearing after the AC remand.
  • * deny the request for review on the basis that the ALJ hearing decision or dismissal was proper. If the AC denies review of an ALJ decision, the AC will inform the claimant or representative that he/she may request court review of the ALJ's decision if he/she disagrees with the AC's action.
  • NOTE: When the AC denies a request for review on the grounds that the ALJ decision or dismissal was proper, it does not assume jurisdiction.
  • 3. How AC Treats New and Material Evidence
  • The AC considers evidence that is both new and material. Evidence is new when it is not duplicative, cumulative or repetitive; evidence is material when it affects the ALJ's findings or conclusions and relates to the time period on or before the ALJ's decision. If the AC determines that the additional evidence is not relevant, the evidence is returned to the claimant with a notice of explanation that also advises the claimant of his/her right to file a new application within 6 months for title II or 60 days for title XVI. If a new application is filed within 6 months (60 days for title XVI) of this notice, the date of the request for review will be used as the filing date for the new application.
  • NOTE: If the ALJ decision was made after:
  • * a NH's insured status expired,
  • * a widow(er)'s prescribed period expires, or
  • * a child attained age 22,
  • the AC will not consider evidence that pertains to the period after expiration of insured status or prescribed period or attainment of age 22. (The AC will consider evidence received after the ALJ decision if it relates to the period before the ALJ decision.)
  • 4. AC Action on Own Motion
  • The AC may review an ALJ's decision or order of dismissal on its own motion within 60 days after the date of the ALJ's decision/dismissal. It considers for own motion review a random sample of unappealed allowances or favorable title II and title XVI disability decisions, and dismissals and decisions referred by effectuating components or the Office of Quality Assurance (OQA). The AC must notify the claimant and representative, if any, when it decides to take own motion review.
  • 5. 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's decision, and the claimant is entitled to title II or title XVI based on disability, such benefits shall be currently paid. See DI 42010.205 and SI 02007.001 for the time period for which interim benefits are paid.
  • 6. Obtaining Evidence from the AC
  • The claimant may request and receive copies of the documents or other evidence upon which the hearing decision or dismissal was based by writing to:ODAR, Office of Appellate Operations 5107 Leesburg Pike Falls Church, VA 22041-3255
  • The claimant may request and receive copies of the documents or other evidence upon which the hearing decision or dismissal was based by writing to:Office of Analytics, Review, and Oversight (OARO), Office of Appellate Operations 5107 Leesburg Pike Falls Church, VA 22041-3255
  • The claimant may be asked to pay the costs of providing the copies.
  • If the AC issues an unfavorable decision or denies the request for review, it will retain the claims folder for 120 days to allow immediate action if the claimant files a civil suit.
  • See DI 12027.060 for benefit continuation policy.
  • See GN 03103.260 and SI 04030.060 for the policy on ALJ protest cases.
  • See DI 42010.205 and SI 02007.001 for the policy on paying interim disability benefits.