The first Office of Appellate Operations (OAO) employee to identify an allegation is responsible for referring it as follows:

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  OAO staff preparing a case for workup will enter a remark or case note in the applicable case processing system(s) to alert the analyst of the allegation.

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  An analyst will identify the allegation and notify the OAO Executive Director's Office (EDO) of the allegation based on instructions in subsections B.2 and B.3.

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  An appeals officer (AO) or administrative appeals judge (AAJ) will ensure that allegations are processed in accordance with these procedures. If the applicable case processing system does not document notification to the EDO, the AO or AAJ may either notify the EDO or return the case to the assigned analyst to follow the instructions in subsections B.2. and B.3.

Many allegations are easily identified in a request for review or in other correspondence submitted in the record. For example, common allegations against ALJs include statements such as:

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  “The ALJ is biased against me [individually].”

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  “The ALJ is prejudiced because the ALJ did not find me disabled.”

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  “The ALJ is biased against claimants who receive workers compensation benefits or unemployment benefits.”

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  “The ALJ shows prejudice toward women.”

Some allegations do not use the specific terminology set forth in SSR 13-1p. If a statement in the record suggests that an ALJ's conduct is improper or unethical, the procedures in this section apply. When the statement is unclear and an analyst is uncertain whether a particular allegation needs to be processed under these instructions, the analyst should consult with an AAJ.

The analyst will follow usual procedures in making a recommendation to the AC, using the applicable procedures in HA 01320. The analyst must evaluate the allegations, review the entire record, and, when appropriate, audit the hearing recording. An audit is always necessary when an allegation refers to specific conduct at the hearing.

In making a recommendation to the AC, the analyst will consider whether the record establishes an abuse of discretion by the ALJ, pursuant to 20 CFR 404.970 and 416.1470. See also HA 01330.002. The analyst must also determine whether there is a basis to remand to another ALJ under 20 CFR 404.940 and 416.1440.

In the case analysis, the analyst will make a recommendation about whether there was an abuse of discretion, or whether the allegation supports another basis for review. However, the analyst must not include findings on unfairness, prejudice, partiality, bias, misconduct, discrimination, or the equivalent. Instead, the analyst will only determine whether the record establishes an abuse of discretion by the ALJ.

In every case involving an allegation, the analyst will check the contention of “Unfair Hearing Allegation” in the case analysis section.

If the analyst recommends that the AC grant review due to an abuse of discretion, the analyst will select “Abuse of Discretion” as a basis for review in the applicable case processing system(s) and discuss any other related issue(s) in the case analysis.

All action documents involving an allegation will:

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  acknowledge the allegation(s) (by direct quotation when possible);

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  state that the AC considered the allegation(s) under the abuse of discretion standard; and

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  address whether the AC found an abuse of discretion, using the applicable language below.

i. No Abuse of Discretion - Denial or Dismissal

If the AC determines there was no abuse of discretion and that no other basis exists to grant review, or if the AC issues a dismissal, the following language, with the exception in the NOTE below, applies:

With your request for review, you alleged that the Administrative Law Judge [quote the specific allegation]. Under our rules described below, we considered your allegations solely as they relate to your case for abuse of discretion. After reviewing the entire record, [including the hearing recording,] we determined that the Administrative Law Judge did not abuse their discretion and none of the other reasons in our rules existed to review your case. We have completed our action on your request for review.

ii. No Abuse of Discretion - Remand or Decision

If the AC determines there was no abuse of discretion but another basis exists to grant review, the applicable language below must be in the action document.

For remands and decisions, the following language applies:

Additionally, the claimant alleged that the Administrative Law Judge [quote the specific allegation]. The Appeals Council considered the allegations solely as they relate to abuse of discretion. After reviewing the entire record, [including the hearing recording,] the Appeals Council determined that the Administrative Law Judge did not abuse their discretion in this case. The Council found, however, another reason to grant review.

For interim actions, the following language applies:

With your request for review, you also alleged that the Administrative Law Judge [quote the specific allegation]. Under the rules explained above, we considered your allegations solely as they relate to your case for abuse of discretion. After reviewing the entire record, [including the hearing recording,] we have determined that the Administrative Law Judge did not abuse their discretion in your case. We found, however, another reason to review your case.

iii. Abuse of Discretion - Remand or Decision

If the AC determines there was an abuse of discretion, the action document should cite the abuse of discretion standard as well as any other applicable standard of review (e.g., substantial evidence).

For remands and decisions, the following language applies:

Additionally, the claimant alleged that the Administrative Law Judge [quote the specific allegation]. The Appeals Council considered the allegations solely as they relate to the abuse of discretion. After reviewing the entire record, [including the hearing recording,] the Appeals Council has determined that the Administrative Law Judge abused their discretion because [cite specific reasons for the determination].

For interim actions, the following language applies:

With your request for review, you also alleged that the Administrative Law Judge [quote the specific allegation]. Under our rules explained above, we considered your allegations solely as they relate to your case for abuse of discretion. After reviewing the entire record, [including the hearing recording,] we determined that the Administrative Law Judge abused their discretion because [cite specific reasons for the determination].

Staff will document the notification in the “Remarks” section of the applicable case processing system(s) by creating a “Special Attention” remark. The “Remarks” annotation will read, “Bias referral submitted in OAOCPS on XX/XX/XXXX.”

Staff will complete the notification using the “Create Referral” tool contained in the “Referral” section of the Office of Appellate Operations Case Processing System (OAOCPS). Staff will select “Bias Allegation/AC Referral” as the referral type and then select “Non-AC Member Referral”.

If the notification is made by an analyst, the analyst should complete the referral only after completing the action document(s) and submitting the case to the adjudicator. Do not hold the case after notifying the EDO of the allegation. Continue to process the case using normal procedures.

Staff will document the notification in the “Remarks” section by creating a “Special Attention” remark. The “Remarks” annotation will read “Bias referral submitted in OAOCPS on XX/XX/XXXX.”

Staff will complete the referral using the “Create Referral” tool contained in the “Referral” section of the Office of Appellate Operations Case Processing System (OAOCPS). Staff will select “Bias Allegation/AC Referral” as the referral type and then select “AC Member Referral”.

If the notification is made by an analyst, the analyst should send the notification only after completing the action document(s) and submitting the case to the adjudicator. After notifying the EDO, the AC will not hold the case and will continue to process the case using normal procedures.