Voluntary Remand

When Social Security claims are pursued in federal court two things typically happen. First, after the parties brief their case, the court decides in favor of one side, or neither side and remands the case back to the Administrative Law Judge (“ALJ”) who previously heard the case. Second, the U.S. Attorney representing the Social Security Administration (the “SSA”) might suggest that the action be remanded to the ALJ, which would be called a voluntary remand. The question arises, does it ever make sense to reject a voluntary remand.

Accepting a voluntary remand avoids the possibility that a federal district court judge would affirm the decision of the SSA. The next step would be to proceed to a federal appellate court, but they do not usually reverse such decisions. Nonetheless, there are some occasions when a voluntary remand should be rejected.

I represent a minor plaintiff whose claim for Supplemental Security Income (“SSI”) benefits was denied by ALJ Newton Greenberg. I believed that the evidence showed the plaintiff met childhood listings for mental retardation. In fact, I believed the ALJ’s own conclusions showed the plaintiff met listings 112.05D and 112.05F, without any need for the federal court judge to consider anything other than the ALJ’s unfavorable decision. Moreover, my legal research uncovered two factually indistinguishable cases where the courts granted the plaintiff’s motion for judgment on the pleadings, and remanded solely for the calculation of benefits.

Each time that the U.S. Attorney offered my client a voluntary remand, I advised his mother to decline it. After granting the U.S. Attorney extra time to brief the case and discuss it with the SSA, he advised me that the SSA had decided to pay the plaintiff all of his SSI benefits.

Had I accepted the offer, then the plaintiff would have needed to wait for another hearing before ALJ Greenberg, which the plaintiff’s mother did not want because she felt he was very abusive towards her son. Thus, by rejecting the voluntary remand, the plaintiff received his SSI benefits much faster than he would have, even if ALJ Greenberg had reversed himself. Furthermore, the plaintiff avoided having to be subjected to ALJ Greenberg’s abusive questioning.