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Read That Appeals Council Remand Order Carefully

January 12, 2016

When cases are remanded from the federal district court and a new hearing is held before an Administrative Law Judge (ALJ), the ALJ's decision:

...will become the final decision of the Commissioner unless within 30 days after receipt of the ALJ decision, the parties submit:

  • Written exceptions to the Appeals Council (AC) objecting to the ALJ's decision; or
  • A written request for an extension of time to file exceptions, and, based on these exceptions, the AC assumes jurisdiction of the case.

The ALJ decision will also become the final decision of the Commissioner unless the AC decides to assume jurisdiction of the case within 60 days after the date of the ALJ’s decision.”

In other words, the representative is looking at 30 days, rather than the standard 60 days if he/she is not happy with the decision.  (https://secure.ssa.gov/poms.nsf/lnx/0203106036).

It is all too easy to overlook that timeframe because the instructions from the AC do not look all that different from a typical AC remand decision.  A recent case from the W.D.N.Y., reported in the NYLJ, highlights the dangers of misreading the AC remand order. See Wlodarczyk v. Colvin, 15CV456, NYLJ 1202739530477, at *1 (W.D.N.Y., Decided October 6, 2015), by Magistrate Judge Hugh Scott. The NYLJ summarized the case as follows:


In 2006 an administrative law judge denied plaintiff disability and supplemental security income (SSI) benefits. In 2008 the Appeals Council (AC) declined review. District court reversed and remanded plaintiff's claim.  In April 2010 the AC further remanded plaintiff's case to the ALJ, whose Feb. 23, 2011 decision granted plaintiff only SSI benefits as of Sept. 15, 2010. Timely exceptions were due by March 25, 2011.  Plaintiff formally sought review on April 19.  Defendants contend plaintiff did not timely file exceptions to the ALJ’s Feb. 23, 2011 decision and noted that agency records did not reveal any exceptions filed until July 16, 2013.  In May 2015, the AC found plaintiffs’ July 16, 2013 exceptions untimely.  Plaintiff's May 22, 2015 action sought judicial review of the ALJ's finding he was not disabled.  Responses to defendant's dismissal motion were extended to Sept. 23, with replies due Oct. 1.  At issue was whether plaintiff timely applied to the Appeals Council to review the ALJ’s decision so as to preserve his right to seek judicial review before the district court, or whether plaintiff timely filed action under 42 USC § 405(g) and relevant Social Security regulations.  Requiring further briefing, the court adjourned oral argument.

Read more: http://www.newyorklawjournal.com/id=1202739542516/Wlodarczyk-v-Colvin#ixzz3wOIPf8bw

Let’s be careful out there and read every word of our remand orders!

 





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