Prevent the Appeals Council From Remanding Your Fully Favorable ALJ Decision


Recently, several fully favorable ALJ decisions were vacated and remanded due to incorrect listing criteria used in the decision. Specifically, Listing 12.05 was incorrectly applied to an impairment of Borderline Intellectual Functioning (12.11). Although the impairments and listing criteria were quite similar, the decision was remanded back to the ALJ.

When a fully favorable decision is vacated and remanded by the Appeals Council, it’s not a good day for the Claimant, ALJ, or the representative. It’s frustrating to watch the adjudicative process be prolonged, but there are a few ways to avoid this. In order to prevent a fully favorable ALJ decision getting vacated and remanded by the Appeals Council at Step 3, it is vital to use the correct Listing criteria.

Here are a few common mental impairments that are often incorrectly applied at Step 3, and the differences between them:

1) Intellectual disorders (12.05) and Neurodevelopmental disorders (12.11)

a) Intellectual disorders include intellectual disability, intellectual developmental disorder, and mental retardation that manifest before the age of 22. These are relevant to Listing 12.05.

b) Neurodevelopmental disorders include borderline intellectual functioning (BIF), learning disorder, and other tic impairments such as Tourette Syndrome. Apply Listing 12.11 for these impairments.

2) Neurodevelopmental disorders (12.11) and Neurocognitive disorders (12.02)

a) Neurodevelopmental disorders occur during childhood though can be diagnosed later in life (12.11)

b) Neurocognitive disorders reflect a decline in functioning and typically are a result of an injury or another impairment such as dementia and residuals of a traumatic brain injury, HIV, brain tumor, and neurological disorders (12.02)

3) Personality and impulse control disorders (12.08) and Schizophrenia spectrum and psychotic disorders (12.03)

a) Schizoid, paranoid personality disorders, intermittent explosive disorder, and personality disorder are analyzed under 12.08. These are often characterized by inflexibility and hypersensitivity to criticism.

b) Schizophrenia, schizoaffective disorder, delusional disorder, and psychotic disorder are analyzed under 12.03. These are characterized by delusional thinking and hallucinations.

4) Anxiety and obsessive-compulsive disorders (12.06) and Post-traumatic stress disorder (12.15)

a) Generalized anxiety disorder and anxiety require criteria in 12.06

b) Trauma-based impairments have their own criteria under 12.15

5) Anxiety and obsessive-compulsive disorders (12.06) and Personality and impulse control disorders (12.08)

a) Obsessive compulsive disorders under 12.06 include restlessness and excessive worry such as panic disorder, anxiety, agoraphobia, and obsessive-compulsive disorder.

b) Obsessive-compulsive disorders in 12.08 typically occur in childhood and involves odd beliefs. Do NOT get this confused with Autism spectrum disorder (12.10) that involves repetitive behavior based in significant fantasy.

If you have gotten a fully favorable ALJ decision remanded, don't be dismayed. You can easily purchase an Appeals Council Brief from Terri M. David now!

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Terri M. David

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Email: terri@terrimdavid.com

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SSD ATTORNEY & CONSULTANT