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 DECISION REVIEW BOARD

The final rules eliminate the Appeals Council level in the current process. Under DSI, there will no longer be any claimant-initiated appeals except for ALJ dismissals. Instead, the Decision Review Board (DRB) will review ALJ decisions, both favorable and unfavorable. For the initial test period, the DRB will review all or almost all ALJ decisions. Eventually, ALJ decisions will be screened by computer-based predictive screening tools that select claims for review based on an increased likelihood of error or because of new policies.

If a claim is not selected for DRB review, the ALJ decision will be sent to the claimant and will serve as the Social Security Administrations final decision, and the claimant will have 60 days to appeal to federal court. If the claim is selected for DRB review, the ALJ decision will be sent with a DRB Notice of Review. The DRB will have 90 days after the DRB notice is received to complete action, otherwise the ALJ decision will be final. The DRB standard of review for ALJ findings of fact is to affirm only if they are supported by substantial evidence. ALJ application of law is reviewed de novo.

It is not entirely clear how the predictive screening tool will identify error-prone cases for review by the DRB. The Social Security Administration states that the tool is not yet developed, and that throughout the first year of the DSI implementation, SSA will closely analyze ALJ decisions while developing the predictive model. The SSA is also looking at voluntary and court-ordered remands to get a preliminary model that they will use to see which cases are selected.

Decision Review Board

The Board is comprised of administrative law judges and administrative appeals judges, who are appointed to the Board by the Commissioner. It is responsible for evaluating and reviewing certain decisions made by administrative law judges.

The Board will review administrative law judge decisions. You may not appeal an administrative law judge's decision to the Board. The Board may affirm, modify, or reverse the administrative law judge's decision. It also may remand your claim to the administrative law judge for further action and decision.

The Board is also the final step in the administrative review process if the administrative law judge dismissed your request for a hearing.  You must ask the administrative law judge to vacate his or her dismissal order before you may ask the Board to vacate the order.

The Board may review your claim after the administrative law judge's decision has been effectuated to study the disability determination process. If the Board reviews your claim, it will not change the administrative law judge's decision in your claim, unless the Board determines that "new and material evidence" exists.  It may then reopen and revise the administrative law judge's decision.

The Board also may identify issues that impede consistent adjudication at all levels of the disability determination process and may recommend improvements to that process.

Selecting claims for Decision Review Board review

The Board may review your claim if the administrative law judge made a decision, regardless of whether the administrative law judge's decision was unfavorable, partially favorable, or wholly favorable to you.

Claims the Board will review may include those where there is an increased likelihood of error or that involve the application of new policies, rules, or procedures. The Board will review both allowances and denials of benefits. It will not review claims based on the identity of the administrative law judge who decided the claim.

The Board may reopen claims with "new and material evidence" without regard to the time limits therein,or if, in their view the administrative law judge's decision cannot be effectuated because it contains a clerical error affecting the outcome of the claim, the decision is clearly inconsistent with the Act or the regulations, or the decision is unclear regarding a matter that affects the outcome of the claim.

If the Board reopens your claim, it will do so no later than 60 days from the date of the administrative law judge's decision.

Notification by the Decision Review Board

When the Board reviews your claim, SSA will notify you. The notice will explain that the Board will review the decision and will complete its action on your claim within 90 days of the date you receive notice. The notice also will explain that if the Board does not complete its action on your claim within 90 days, the administrative law judge's decision will become SSA's final decision.

Effect of Decision Review Board action on the right to seek judicial review

(1) If the Board reviews your claim, the administrative law judge's decision will not be the final decision.

(2) If the Board does not complete its review within 90 days of the date you receive notice that the Board will review your claim, the administrative law judge's decision will become the final decision. If you are dissatisfied with this final decision, you may seek judicial review of the decision within 60 days of the expiration of the 90-day time period. The Board will take no further action with respect to your claim, unless it determines that it can make a decision that is fully favorable to you.

(3) If the administrative law judge's decision becomes the final decision, but the Board determines that it can make a decision that is fully favorable to you, it will reopen the administrative law judge's decision without regard to the time limits, and revise it as appropriate. If you have already sought judicial review of the final decision under section 205(g) of the Act, the Board will notify the Office of the General Counsel, which will then take appropriate action to request that the court remand the claim for the purpose of issuing the Board's decision.

(4) Paragraphs (2) and (3) above do not apply to dismissals that you have asked the Board to review. You must wait for the Board to take action. The appeal rights, if any, that will be available at that time depend on the nature of the Board's action and will be explained in the Board's notice.

When the Board reviews your claim, it will either make SSA's final decision or remand the claim to an administrative law judge for further proceedings consistent with the Board's remand order.

If the Board makes SSA's final decision in your claim, it will send you notice of the decision. If you are dissatisfied with the final decision, you may seek judicial review of the decision under section 205(g) of the Act.

If the Board remands your claim to an administrative law judge, the Board's remand order is not the final decision and you may not seek judicial review of the remand order under section 205(g) of the Act. The administrative law judge's decision after remand will become the final decision, unless the Board then reviews the decision.

(c) The Board's action on your request to vacate the administrative law judge's dismissal of your request for review is not subject to further review.

Procedures before the Decision Review Board

(a) The Board may limit the issues that it considers and when it does, will notify you of those issues.
(b) You may submit a written statement within 10 days of the date you receive notice of the Board's review or the Board may ask you to submit a written statement within a certain time period. The written statement may be no longer than 2,000 words, and if typed, the typeface must be 12 point font or larger. The written statement should briefly explain why you agree or disagree with the administrative law judge's decision and should cite applicable law and specific facts in the record.

Procedures before the Decision Review Board in claims dismissed by an administrative law judge
(a) If you are dissatisfied with the administrative law judge's action on your request to vacate a dismissal under §405.382, you may request that the Board vacate it. The Board will not consider your request to vacate a dismissal until the administrative law judge has ruled on your request. Your request to the Decision Review Board must be in writing and must be filed within 60 days after the date you receive the notice of the administrative law judge's action under §405.382.
(b) When you request the Board to review the administrative law judge's dismissal of your claim, you may submit additional evidence, but the Board will accept only evidence that is relevant to the dismissal issue. All other evidence will be returned to you.
(c)(1) If you request the Board to vacate the administrative law judge's dismissal of your request for a hearing, you may submit a written statement with the Board at the time that you ask the Board to vacate the dismissal order. The written statement may be no more than 2,000 words, and, if it is typed, the typeface must be 12 point font or larger. The written statement should briefly explain why you agree or disagree with the administrative law judge's decision and should cite to the relevant facts in the record and applicable law.
(2) If you file a written statement with the Board after you request it to vacate the dismissal, the Board will not consider your written statement and will return it to you without placing it in the record.
(d) If you request the Board to vacate the administrative law judge's dismissal of your request for a hearing, the Board will take one of the following actions:
(1) Vacate the administrative law judge's dismissal order. If the Board issues an order vacating the administrative law judge's dismissal order, it will remand the claim to the administrative law judge for further proceedings consistent with the Board's order, or
(2) Decline to vacate the dismissal order.

Record before the Decision Review Board
Subject to §405.373, in claims reviewed by the Board, the record is closed as of the date of the administrative law judge's decision, and the Board will base its action on the same evidence that was before the administrative law judge. When it reviews a claim, the Board will consider only that evidence that was in the record before the administrative law judge.

Actions that the Decision Review Board may take
(a) General. The Board may review the administrative law judge's findings of fact and application of the law. It will apply the substantial evidence standard in reviewing the findings of fact, but review de novo the application of the law.
(b) Subject to the provision of §405.420, when it reviews a claim that has been referred to it, the Board may take one of the following actions:
(1) If the administrative law judge's decision is supported by substantial evidence and there is no significant error of law, affirm the decision;
(2) Where there is an error of law, issue its own decision which affirms, reverses, or modifies the administrative law judge's decision;
(3) Where there are factual findings that are unsupported by substantial evidence and further development is necessary to reach a decision, remand your claim to the administrative law judge for further proceedings consistent with the Board's order. If the Board remands your claim to the administrative law judge for further proceedings, the administrative law judge must take any action that is specified by the Board in its remand order and may take any additional action that is not inconsistent with the Board's remand order.

Notification of the Decision Review Board's action
SSA will send notice of the Board's action to you at your last known address. The notice will explain in clear and understandable language the specific reasons for the Board's action. If the Board issues a decision, it will explain in clear and understandable language the specific reasons for its decision and the notice will also explain how to seek judicial review, and explain your right to representation. If the Board issues a remand order, the notice will explain that the remand order is not the final decision.

Effect of the Decision Review Board's action
(a) The Board's decision is binding unless you file an action in Federal district court
(b) The administrative law judge's decision is binding if the Board does not complete its action within 90 days of the date you receive notice that the Board will review your claim, unless you file an action in Federal district court
(c) The Board's action to remand your claim to an administrative law judge is binding and not subject to judicial review.
(d) The Board's action under §405.427 on a request to vacate an administrative law judge's dismissal order is binding and not subject to further review.