An ALJ may not be able to carry out the directive(s) set forth in the remand order in the following situations:

• •

  The directive(s) violates law or agency policy, or carrying out the directive(s) may require the ALJ to violate law or agency policy;

• •

  The directive(s), if followed, would cause inordinate delay in a claim or be unnecessarily burdensome; or

• •

  The directive(s) is based on a factual or clerical error, and the error results in a directive(s) that cannot be carried out or a directive(s) that is unclear based on the actual facts.

The following are examples of valid clarification requests:

• •

  The directive would require the ALJ to violate agency policy where the AC directs the ALJ to reopen a prior decision, but the conditions and timeframes for reopening are not met (HALLEX HA 01290.001).

• •

  The directive would cause an inordinate delay where the AC directs the ALJ to request a consultative examination to evaluate the claimant's mental impairments, but the claimant is in a confinement facility for an extended period of time, and the facility will not allow a consultative examination while the claimant is confined.

• •

  The directive would be unnecessarily burdensome where the AC directs the ALJ to obtain a hearing test and examination performed by a qualified otolaryngologist, but there is no otolaryngologist in the area servicing the HO.

• •

  The directive would be based on a factual error resulting in a directive that cannot be carried out where the AC directs the ALJ to consider the findings of a prior ALJ decision, but no prior ALJ decision was issued.

The following are examples of clarification requests that are not valid:

• •

  The ALJ disagrees with the AC's finding that the claimant had “good cause” for failing to appear at the scheduled hearing.

• •

  The ALJ disagrees with the AC's basis for remand, but the ALJ is able to follow the directive without violating law or agency policy (e.g., the AC remand order directs the ALJ to offer the claimant an opportunity for a new hearing; or the AC remand order directs the ALJ to obtain supplemental evidence from a vocational expert (VE)).

• •

  The AC remand order did not cite a regulatory basis for granting review.

• •

  The AC remand order did not include specific processing instructions regarding a subsequent application. See HALLEX HA 01195.010B.2.

• •

  The AC does not explain why a medical expert is needed to resolve the reasons for remand.

• •

  A Federal court issued the directive(s).

• •

  The heading in an AC remand order erroneously indicates a concurrent claim in a title XVI only claim. However, the content of the order clearly references the ALJ decision by date, and the error in the heading does not preclude the ALJ from carrying out the AC directive(s).

• •

  An ALJ previously received conflicting instructions in a remand order from the AC in a different case.

A change in circumstance or an error of fact may make a directive(s) obsolete in some instances. The following are examples of valid requests for clarification in these circumstances:

• •

  The AC remands a case for a new hearing solely because the hearing recording cannot be located. The hearing recording is subsequently found and is determined to be audible, and a new hearing has not yet been held.

• •

  The AC remands a case because the ALJ did not advise an unrepresented claimant of the right to representation, but the record reflects that the claimant was advised of the right to representation during a Prehearing Developmental Contact (PHDC), Claimant Enhanced Outreach (CEO), or by the ALJ at the hearing.

• •

  The AC remands a case because the residual functional capacity (RFC) in the decision does not match the hypothetical provided to the VE at hearing, but the decision relied on post-hearing interrogatories that match the RFC.

• •

  The AC remands a case because the ALJ did not proffer post-hearing evidence, but the evidence was submitted by the claimant/representative and there is no other party to the hearing.

• •

  The AC remands a case to determine the identity and Social Security number (SSN) of the wage earner on whose record the claimant may apply for benefits. On remand, the HO discovers a clerical error resulted in the entering of an incorrect digit in the SSN in the applicable case processing system and the HO corrected the error.

Additionally, when deciding whether to request expedited clarification because a missing claim(s) file or hearing recording has been located, HO staff will take into consideration the following:

• •

  If the AC includes any other directive(s) in the remand order, the expedited clarification process may not be used.

• •

  The definition of “missing” hearing recording includes “inaudible” hearing recordings. Therefore, if a case is remanded solely because the hearing recording is inaudible, but the recording is later found to be completely audible, the expedited clarification procedures may be used.

  It is not anticipated that the AC will remand an electronic case for a lost or missing claim(s) file. However, should this be the only reason for remand when a claim(s) file is electronic, HO staff may use the procedures in HALLEX HA 01210.087 to notify Compliance, DDS and Hearings Quality (DHQ). The referral will be handled on a case-by-case basis, and DHQ will provide appropriate instructions to the HO.