When a PC technician finds that an administrative law judge (ALJ) or Appeals Council
(AC) decision contains a clerical error which affects the end result; is clearly contrary
to the Act, regulations or rulings; or is not clearly in error, but the PC has a problem
effectuating, the PC technician refers the matter to the OAO in the Office of Analytics,
Review, and Oversight (OARO). A written referral to OAO is called a protest.
When the PC receives a favorable decision, and new evidence added to the file since
the decision date suggests a basis for exercising own motion review or for reopen
and revising the decision or a prior related determination or decision, the PC technician
will send a protest memorandum to OAO. The PC technician will upload the evidence
into eView if the case is electronic. If the claims file is paper, the PC technician
will send the claims file to OAO.
Technicians must prepare a protest memorandum that clearly and concisely states the
pertinent facts and statutory or regulatory basis for the protest. See DI 42010.080 for an exhibit of the basic content and structure of a protest memo. A Technical
Expert (TE) or other designated lead must review all protest memos before transmittal
to OAO.
The PC will only refer cases to OAO when the decision is clearly erroneous with no
judgment factor involved. Do not protest a hearing decision solely on the basis of
an ALJ's interpretation of the facts of a case, e.g., whether an impairment is severe
or whether a claimant can still perform substantial work.
If the issue involves a policy question, or a situation not covered by existing policy,
refer the case to your technical lead and management team for review and potential
escalation. Protests should not include policy questions or requests to clarify an
aspect of an adjudicated claim; the protest must be based on an inability to pay the
claim as currently adjudicated.
The PC should refer all protests to OAO as soon as possible, but generally within
40 days of the decision to allow the AC to review the decision on its own motion within
the allowable time period. See DI 42010.065C for when we must pay benefits while protesting a decision.
If the period for own motion review has expired or will expire by the time the memorandum
reaches OAO, the memorandum should request that the AC consider reopening the ALJ
decision in accordance with 20
CFR 404.988.
Diary all protested cases for 50 days from the date of the ALJ decision. At diary
expiration, determine if AC has acted on the protest (see DI 42010.065C2).
Do not file a protest or contact OAO to correct typographical or clerical errors that
do not affect the outcome of the decision. See DI 42010.075 for correcting clerical errors in a hearing decision.
Protesting a hearing decision is not the same thing as challenging an ALJ’s approval
of a fee agreement between a claimant and their appointed representative. For policy
on incorrectly approved fee agreements, see GN 03940.025B.5.
Do not notify the hearing office or ALJ when referring a protest to OAO.