DI 42010.080 Preparation of the Memorandum to ODAR
This section provides guides and examples for PC preparation of memorandums when it is necessary to return cases to ODAR because the ALJ or Attorney Advisor decision cannot be effectuated. Particular attention should be paid to the tone of the memorandum since it is given to the claimant in cases on which ODAR takes action and in all other cases becomes part of the permanent claims file and therefore is subject to inspection by the claimant. The memos should be well written, concise, and justified on the face of the message. The memos should be prepared in such a manner as to enable ODAR to easily understand the reason for the return without a complete review of the folder. Sections of the Social Security Act, the Regulations or SS Rulings should be cited where relevant. Citations from Program Manuals are not appropriate since the ALJ's are not subject to these guides, except as they are published as Rulings.
The exhibit shown below contain the basis elements for inclusion in a memo to ODAR. They are only guides and are not intended to be all inclusive.
Exhibit 1 —Return of Case for Specific Onset Date (CDB)
A claim for disabled child's benefits was filed January 26, 1976, on behalf of Fred Kelly, Jr. The claim was initially denied on April 5, 1976, and the denial was affirmed on reconsideration June 29, 1976. A hearing was subsequently requested.
In a decision issued on September 15, 1977, the administrative law judge found that Fred Kelly, Jr. was under a disability “which began before the claimant attained age 22 on September (NF), 1977.”
When the claimant filed for disabled child's benefits on behalf of Fred Kelly, Jr. on Janaury 26, 1976, an onset date of September 21, 1955, was alleged. If this alleged onset date is also the established onset date, the application would be retroactive one full year and benefits could be paid from January 1975. Since the administrative law judge did not give a specific onset date in his decision, proper effectuation of the hearing decision is not possible. We are, therefore, returning this case for the establishment of a specific onset date.
Upon completion of your action, please forward this case to:(Address of PC)
Exhibit 2 —Return of Case for Specific Onset Date (DWB)
The claimant initially filed an application for disabled widow's benefits on October 18, 1976. The claim was denied at the initial level (SSA-831-U5 determination dated November 17, 1976) and the denial was affirmed at the reconsideration level (SSA-831-U5 determination dated December 28, 1976). The claimant filed a new application on August 4, 1977, and was denied through the reconsideration level. She subsequently requested a hearing.
In a decision issued on December 12, 1978, the administrative law judge stated that based on the application of August 4, 1977, the claimant is entitled to widow's insurance (disability). However, he does not provide a specific onset date. In addition, the ALJ does not specifically mention or address the issue of reopening the prior reconsideration determination (dated December 28, 1976) which may be a factor for consideration depending on the onset date the ALJ establishes. The claimant alleged disability beginning in 1958 on both the October 18, 1976 and August 4, 1977 applications.
We realize the time frame for own motion review has expired; however we are forwarding the subject case for clairification of the onset date and possible reopening of the earlier determination in accordance with Regulations NO. 4, section 404.988.
Upon completion of your action, please forward this case to: (Address of PC).
Exhibit 3 —Return of Case for Clarification of Beginning Date of Disability (Work Activity Involved)
The claimant was initially entitled to disability benefits with an onset date of May 19, 1970 SSA-831-U5 determination dated July 19, 1971). The claimant's entitlement to disability benefits was terminated effective March 1976 SSA-833-U5 determination dated December 5, 19770 on the basis of a return to substantial gainful work activity which included the completion of trial work period. This cessation was affirmed at the reconsideration level SSA-833-U5 determination June 1, 1978). The claimant subsequently requested a hearing on June 21, 1978.
In a decision issued on December 12, 1978, the administrative law judge states that even though the claimant has for intermittent periods returned to work which can only be claissified as substantial and gainful, he finds the claimant continuously disabled since May 19, 1970, irrespective of his work activities. The claimant's continuous work activity from April 1976 through August 1977, should not be dismissed as intermittent or written off as an unsuccessful work attempt or of insignificant duration, etc. The claimant earned $9,927.14 in 1976 and $3,537.76 through the first quarter of 1977. These periods may be the ones the ALJ considered substantial and gainful. Therefore, the claimant has not been continuously disabled since May 19, 1970 (Reg. 404.1539). This does not, of course, prohibit the finding of a new period of disability beginning August 15, 1977 (date claimant alleged on new application dated August 21, 1978 or later).
We are forwarding the subject case for your consideration of reopening the ALJ's decision to rectify his decision with regard to his finding that the claimant has been continuously disabled since May 19, 1970.
Upon completion of your action, please forward this case to:(new-end) (Address of Component Requesting Clarification).