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HALLEX Sections Updated

October 31, 2017

The Social Security Administration (SSA) has made some changes to and added HALLEX sections.

HALLEX I-2-5-10 & I-2-5-12 for remanding claims back to state agencies underwent minor changes. Both sections involve circumstances under which ALJs can remand claims to the prior adjudicative component before a hearing is held. HALLEX I-2-5-10 permits ALJs to send cases for “prehearing reviews” only if additional evidence is submitted or is available; there is a change in a law or regulation; or there is an error in the file or other indication that the prior determination may be revised.  A prehearing review may not delay a hearing; if not completed by the time the hearing is scheduled, the state agency must return the claim to the ALJ unless all parties consent.  If the state agency issues a fully favorable determination while the hearing request is still pending, the request will be dismissed. See HALLEX I-2-4-45.

HALLEX I-2-5-12, on the other hand, permits the ALJ to remand to the state agency only if there is a reasonable certainty a revised fully favorable decision will be issued on remand.  Examples of possible reasons for these remands also include new and material evidence, or a change in the law.  This type of remand may be at the claimant’s or ALJ’s request, and results in a dismissal of the hearing request.  A claimant can object to a remand proposed by an ALJ within ten days of the notice to remand.  Query whether these provisions will become more relevant as OHO attempts to work through its hearing backlog?

SSA has also amended HALLEX I-1-10-47 to provide instructions for addressing subsequent claims when processing a pending court case or court remand. Of significance, it provides that the Appeals Council, in considering a voluntary remand from court, will generally not stipulate to affirm a subsequent allowance.  According to the HALLEX, such a stipulation would limit the Appeals Council’s ability to correct other possible issues in the subsequent claim, such as unreported earnings.  This could be of concern to advocates who want to protect a subsequent allowance still within the time frame for reopening by SSA.

Finally, SSA has added HALLEX I-5-3-30, entitled “Revisions to Rules Regarding the Evaluation of Medical Evidence.”  This section provides background on why and how SSA eliminated the “treating physician rule” with its new regulations for evaluating medical evidence.  See http://www.empirejustice.org/issue-areas/disability-benefits/rules--regulations/treating-physician-1.html#.WejbActe670.  In addition to outlining the new regulations, the HALLEX section provides guidance as to when the rules apply in various scenarios.

 Advocates will recall that while the regulations went into effect on March 27, 2017, they will only apply to claims decided on or after that date. The old rules will continue to govern cases in the pipeline. Section F, in particular, details when and how the prior rules will be applied. It emphasizes that rescinded SSRs 96-2p, 96-5, 96-6p and 06-03p will not be applicable even in claims filed before March 27th. Rather adjudicators are to cite instead “old” regulations at 20 C.F.R. §§ 404.1527(d) & 416.927(d) and 404.1527(e) & 416.927(e), or the new SSR 17-2p on medical equivalence, and new 20 C.F.R. §§ 404.1527(f) & 416.1527(f), which incorporate some of the provisions from SSR 06-03p on evaluating evidence from non-acceptable medical sources.

 





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