OHA Remands

  • The new musculoskeletal listings have not changed anything about remands.
  • The regulations provide two avenues for an ALJ to send a case back to the DDS.
    • The first is found in 20 C.F.R. §§ 404.948 (c)(1) and 416.1448(c)(1).
      • This is the true remand authority where the ALJ remands the case to the DDS and relinquishes jurisdiction to the DDS.
      • This remand authority is available to the ALJ if there is reason to believe that the revised determination would be fully favorable, such as new and material evidence or a change in the law.
      • For purposes of this section, a change in the law does not include changes to listing criteria.
    • The other avenue is under the authority in 20 C.F.R. §§ 404.941 and 416.1441, the pre-hearing case review procedures.
      • Under this authority the case is "returned" to the DDS for further review to see if a revised determination, either fully or partially favorable, can be made.
      • The criteria for conducting a pre-hearing case review are contained in 20 C.F.R. §§ 404.941(b).
        • For example, additional evidence is submitted or available, there is a change in law, or there is an error in the file.
      • Again, a change in the law does not include changes to listing criteria.
      • This procedure is not technically a "remand" because the hearing office maintains jurisdiction of the case and has to take further action depending on the result of the DDS review.
    • The new musculoskeletal rules have no impact on the authority to send a case back to the DDS under the remand or pre-hearing case review procedures, provided the regulatory conditions are met.
    • SSA feels a remand to the DDS for consideration of medical equivalence should be no more prevalent now than in the past and does not anticipate that the new musculoskeletal listings will result in more "medical equals" decisions.
    • SSA feels that in many cases, adjudicators can draw inferences from the medical and other evidence to determine if the “functional criteria” in the listings are met, rather than equaled, much as they do already when determining the claimant’s residual functional capacity.
      • However, when a decision is based on medical equivalence, the requirements of SSR 96-6p [61 FR 34466, 34468 (1996)] must be met.