A practice that has served me well in advocating for clients seeking Social Security disability is to study the Appeal Council’s Order (Order). When the Appeals Council remands a decision back to the ALJ, it includes an Order. The Order describes in detail the law, facts, and reason why an ALJ decision is not legally sufficient. The Order outlines what is required of the ALJ when the case is remanded back to the Office of Hearings and Operations (OHO). By studying the Order, I have learned of administrative messages (AM) distributed internally by the SSA and reminded of legal errors that warrant remand of an ALJ decision.
In general, the Appeals Council will remand an ALJ decision for the following reasons:
1) ALJ appears to have abused discretion;
2) Error of law;
3) Decision not supported by substantial evidence;
4) Broad policy or procedural issue that may affect public interest; and
5) New and material evidence that relates to the period on or before the ALJ hearing AND there is reasonable probability that the new evidence would change the outcome of the decision AND there must be good cause for why you missed informing us or submitting it earlier.
Below is not an exhaustive list of legal errors that warrant a remand; it serves as a reminder of remand opportunities available for clients who are interested in appealing an unfavorable ALJ decision.
The audio of the hearing was not clear because SSA’s hearing equipment was not properly muted and picked up sounds unrelated to the hearing making the recording inaudible. HALLEX I-3-7-14.
The ALJ did not properly assess claimant’s schizophrenia and minimized the severity because there were no hospitalizations. The Order remanded the decision based on an administrative message addressing schizophrenia: “it is common for people with schizophrenia to avoid treatment, which can result in limited medical evidence. We do not generally consider the presence or absence of hospitalizations, or recent hospitalizations, a reliable indicator of current impairment severity for schizophrenia.” AM-12048-REV.
On August 21, 2021, the SSA revised instructions regarding the evaluation of medical opinions for Continuing Disability Reviews (CDR). If the initial application was filed prior to March 27, 2017 and there has not been a CDR, the ALJ must evaluate medical opinions under the prior medical opinion law and weight of opinions must be evaluated pursuant to 20 CFR 416.927.
The ALJ found claimant was not disabled because s/he could perform past relevant work (PRW). However, the VE testified the position was a composite job; therefore, the ALJ’s decision must reflect the ability of claimant to perform all aspects of the job. SSR 82-61.
SSR 18-3p should be used when noncompliance is an issue for those with mental impairments. There are exceptions to being noncompliant with prescribed treatment.