I-3-8-10.Prior Notice to Claimant When Granting Request for Review
Last Update: 6/5/15 (Transmittal I-3-114)
Under 20 CFR 404.973 and 416.1473, when the Appeals Council (AC) decides to grant review in a case, it will mail a notice to all parties at their last known addresses stating the reasons for the review and the issues to be considered.
If the AC is remanding a case to an administrative law judge (ALJ) or issuing a fully favorable decision, the AC will not send prior notice of its action before issuing the final action document.
For cases in the 11th Circuit (Alabama, Georgia, or Florida), the AC must give notice to a claimant when the claimant obtained a partially favorable decision and the AC intends to reopen or review issues not raised by the claimant on appeal. Kennedy v. Bowen, 814 F.2d 1523, 1528 (11th Cir. 1987). Therefore, in the 11th Circuit, the AC will send a “grant review notice-proposal to vacate favorable ALJ decision and remand” notice before remanding unappealed issues ruled on favorably by an ALJ.
B. Notice of Grant Review Action
When the AC grants review and prior notice is required before taking final action (see Hearings, Appeals and Litigation Law (HALLEX) manual I-3-8-10 A above), the analyst will prepare a grant review notice, advising the claimant and the representative, if any, of the AC's proposed findings and action.
The grant review notice will:
State the reasons for granting review and the issues to be considered;
Provide the claimant 30 days from the date of the letter to submit any additional evidence or written statement;
Advise the claimant that he or she may request an appearance before the AC; and
When non-procedural evidence is being proffered (see HALLEX I-3-8-10 C below), advise the claimant that he or she may request the case be remanded to an ALJ.
C. Proffering Evidence
If the AC intends to admit additional evidence into the record that the claimant and appointed representative, if any, has not had the opportunity to review, the AC must proffer the evidence.
To proffer evidence, the AC sends the information to the claimant with the notice granting review. In the notice, the AC will generally give the claimant and appointed representative, if any, 30 days from the date of the notice to object to, comment on or refute the evidence, or to submit any other written statement about the facts or law that the claimant believes apply in light of the evidence submitted. When proffering non-procedural evidence, the AC will also tell the claimant that within 30 days, he or she may ask for a hearing before an ALJ.
When a claimant is unrepresented, the AC must be mindful of new evidence that may be offensive or detrimental to the claimant's health. In situations where the new evidence may be offensive or detrimental to the claimant's health, the analyst must discuss the matter with the branch chief before taking any action to proffer the evidence.
D. Preparing Recommendation for AC
When the AC sends a grant review notice (as required by HALLEX I-3-8-10 A above), and the time period for comments has expired, the analyst will usually prepare a recommendation for the AC as follows:
If the claimant does not respond to the grant review notice within 30 days, the AC may proceed with the final action.
If the claimant agrees with the proposed action, the AC may proceed with the final action.
If the claimant disagrees with the proposed action and either does not request a hearing (when the AC proffered non-procedural evidence) or the AC did not offer the right to request a hearing before an ALJ, the AC may proceed with its action and address the claimant's reasons for disagreement in its action.
If the claimant disagrees with the proposed action and requests a hearing, the AC may issue a decision on any issue it can resolve favorably on the claimant's behalf without a hearing and remand any issue that cannot be resolved favorably without a hearing.
In all cases, to prepare the case for release to the AC, the analyst must:
Draft the analysis in the Appeals Review Processing System (ARPS) and complete all other necessary ARPS entries;
Prepare the final action document using the appropriate Document Generation System template;
Proofread the document; and
Send the recommendation and the final action document to the AC for consideration.