An ALJ must request a legal opinion from the Office of the General
Counsel (OGC) when the Social Security Administration (SSA) specifically
instructs the ALJ to obtain such an opinion before adjudicating a
case. For example, this scenario can arise when SSA encounters a novel
or unusual policy or procedural issue that may impact litigation or is
the subject of pending litigation.
In other rare and limited circumstances, an ALJ may find it
necessary to request a legal opinion from OGC in order to resolve an
adjudication matter. An ALJ may consider requesting an opinion from
OGC when:
•
A particular factual situation requires interpretation
or clarification of state, federal, or foreign law (e.g., constitutional,
privacy, or disclosure issues);
•
The Act, regulations, rulings, HALLEX, POMS, or other
agency guidance does not address the issue;
•
The interpretation will affect the outcome of the case
and is essential to adjudicate the case; and
•
OGC has not already issued a legal precedent on the issue
(see POMS PR-Title II Regional Chief Counsel Precedents and PS-Title
XVI Regional Chief Counsel Precedents).
While OGC may provide a legal opinion
regarding an interpretation or clarification of law, an ALJ will not ask
OGC for guidance on how to adjudicate a particular claim.
Once the ALJ confirms OGC has not already addressed the issue,
the ALJ will consult with the HOCALJ regarding whether obtaining a legal
opinion is appropriate. If the HOCALJ agrees, the ALJ will prepare a
written recommendation for the RO.
After reviewing the written recommendation, the HOCALJ will refer
the matter to the RO. If the RO agrees that requesting a legal opinion is
appropriate, the RO will refer the matter to OGC , with a courtesy copy
to OCALJ at |||DCDA OHO HQ OCALJ DFP. OGC will review the request per the
instructions in POMS GN
01010.820.
When appropriate, OGC will issue a legal opinion and publish the
opinion in POMS. See generally POMS PR – Title II Regional Chief
Counsel Precedents and POMS PS – Title XVI Regional Chief Counsel
Precedents.