DI 42010.070 Writing to ODAR When Effectuation is Impracticable-Title II—(PC Instructions)
The Appeals Council (AC will review a case on its own motion if:
There appears to be an abuse of discretion by the ALJ;
There is an error of law (including a possible misapplication or nonapplication of the administrative finality rules);
The action, 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 interest. Furthermore, once the AC has decided to review a case, it may review it de novo unless it states in its decision that a different standard is being used.
Call the matter to ODAR's attention by memorandum promptly if an ALJ decision cannot be effectuated because a basis for ODAR review (see above) clearly exists; the decision contains contradictory findings and/or conclusions (e.g., effectuation of one aspect of the decision would prevent effectuation of another aspect); or the decision is so vaguely worded as to make the ALJ's intent unclear (e.g., the date of onset is not specified.) Also, refer to ODAR any decision in which the ALJ clearly overlooked a material factor of eligibility or did not resolve the issue before him/her.
Address the memorandum to the Director of Appeals Operations, ODAR, over the PC Director's signature. Place the yellow folder copy in the claims folder. In addition, address an SSA-559 to ODAR, Attention: OAO. To prevent the SSA-559 and memorandum from becoming mutilated or lost, place the memorandum beneath the SSA-559 and paper clip them inside the claims file on the right hand side. Route the claims file to the lead technician for review. If an Electronic Folder (EF) is involved see DI 80830.075.
NOTE: If it appears that a title XVI decision has also been made, prepare another copy of the referring memorandum. Send the copy of the memorandum with a coy of the title II decision and any title XVI material under cover of an SSA-408 indicate that the attached material is forwarded for any necessary action on the title XVI case. Also add the remarks “You will receive a copy of any subsequent effectuation action.” Flag the case to send a copy to the regional effectuating component when ODAR responds to the memorandum. The addresses of the SSI effectuating components can be obtained from internal operating instructions.
The return of the cases directly to ODAR should be limited to those containing clearly erroneous decisions. (DI 42010.080 for guidelines to identify cases for referral to ODAR.) Cases should not be returned merely to question the ALJ's interpretation of the facts. If the issue involves a policy question, interpretation of an existing policy, or a unique situation, the case should be referred to ODP. Referral should be by an SSA-559 Transmittal Slip with the reason for the referral clearly defined in the remarks section. Forward the SSA-559 and claims file through channels to OD, DPATP, TPB, 3-A-11 Operations Building. OD will respond to the issue raised and/or prepare any referral memorandum to ODAR as indicated.