DI 42010.065 Referral of ALJ “Protest” Cases - Title II (RSI and Disability)
Cross refer to DI 42010.220.
SSI cases will continue to be handled in accordance with Questionable SSI Hearing Decisions SI 04030.060.
These instructions apply to all processing centers (PC); i.e., all program service centers (PSC), INTPSC and ODO.
When the PC questions an ALJ or Attorney Advisor’s decision or finds that the decision is impossible to effectuate, the Office of Disability Adjudication and Review (ODAR) must be asked to clarify the decision. A written referral to ODAR is called a “PROTEST”.
Protest referrals must be sent to the AC in time for the AC to take on its on own motion review within 60 days of the ALJ decision, otherwise payments must be made.
DO/BO's need not question ALJ or Attorney Advisor decisions since the PC's review those decisions for errors before implementation. However, if the DO/BO feels the need to question a decision, they will send a memorandum to the appropriate PC, Attention: Reconsideration Branch for possible referral to ODAR. Diary all cases referred for 50 days from the date of the ALJ decision.
All “protest” referrals questioning an ALJ’s medical decision, or involving non-disability problems e.g., possible reopening of prior application (sent back to ODAR on a post-effectuation basis), insured status not met, work in period ruled on, should be mailed to:
ODAR, OAO QRB 1
5107 Leesburg Pike
Falls Church, VA 22041
DO NOT OPEN IN MAILROOM.
Refer to DI 42010.070 and DI 42010.075 for instructions on how to prepare a case for “protest” to ODAR.
If a disability decision cannot be effectuated due to a clerical error in the ALJ or Attorney Advisor decision, follow the procedures in DI 42010.075 to telephone the Hearing Office Director in the issuing hearing office.
ODO and the PSC/INTPSC will not send copies of disability issue “protest” memoranda to Central Office.
NOTE: For case control, the ODAR office code is LF6.
B. Timely referral - no effectuation
The PC's will try to refer all “protests” of ALJ decisions to the Office of Appeals Operations in sufficient time to allow the AC to take own motion review, i.e., within 60 days of the date of the ALJ decision. As a general guideline, the AC should receive the case within 45 days of the date of the ALJ decision. Therefore, to allow 5 days mail time, do not refer claims folders after the 40th day without first starting the payments (see C. and D. below). It should be unnecessary to photocopy and hold material from the claims folder for the processing of payments. To expedite the process the PC (ODO, PSC and INTPSC) Reconsideration and Disability Review Sections should update the case control location (code 5950) and release the claims folder rather than have the mailroom do it. The PSC will place an SSA-492, (INTPSC, an SSA-385) on the face of the folder. Include the post office box number on the form so ODAR will return the folder expeditiously to the appropriate unit in the PSC/INTPSC (GN 03103.260 and GN 03103.180).
If the AC takes its own motion review, then payments will not be necessary until the AC issues a decision. If the AC does not take its own motion review, then the PC's must make payments (see D. and E. below). For all cases (disability and RSI issues) the PC's should contact the AC on FTS 8-235-8434 not later than the 50th day after the date of the ALJ decision in order to determine if its own motion review will be taken. If its own motion review is uncertain because the claims folder is not received in the AC, start search procedures. Then try to initiate payment without the claims folder. Rather than wait for the PC phone call, if on or before the 50th day the AC knows there will be delay beyond the 60 day its own motion period, the AC should call the PC. It is possible that without transferring the claims folder, the pertinent information from the claims folder necessary to initiate payment can also be given at that time, e.g., proof of death established by the ALJ, benefit amount information from wage record, etc. If not, the AC will make arrangements (get an exact P.O. Box mailing address to the Reconsideration and Disability Review Branch in the PSC, INTPSC, Division of Appeals Processing, ODO) for transferring the claims folder back to the PC for immediate effectuation of the ALJ decision. The claims folder will be sent back to the appropriate AC address in A. above after payments are started so the AC can consider whether to reopen and revise the ALJ decision.
C. Untimely referral - payments required
Those cases which cannot be forwarded to the AC within sufficient time to allow the AC to take its own motion review should still be forwarded to the AC. Before forwarding the case, payments should be started, including any retroactive payments. The AC can take jurisdiction of the case under the reopening provisions of the regulations. .
Compute the payment amount based on information in file. To the extent that any information is ambiguous or missing, pay the most reasonable amount justified by the information which does exist in the file. Effectuate these payments as soon as possible (after the 60 days have expired, if necessary).
Payments are not necessary where the claimant is already receiving benefits; i.e., where the monthly benefit amount, retroactive entitlement or a prior year deduction event is at issue. Also, if an ALJ decision concerning an overpayment issue is involved, follow the regular overpayment guides in GN 02210.000.
All payments made because referral was not timely for its own motion review are subject to adjustment or correction based on the AC review decision. Underpayments or overpayments may result and regular procedures will dispose of these. Therefore, without fault findings and waiver requests will apply to the overpayments.
Withhold 25 percent of the payment for the attorney representation fee where applicable.
Do not send a notice of referral and/or a copy of the protest memo to the claimant/representative in any of the cases referred under these procedures, regardless of whether the referral is timely for own motion review or if reopening may be utilized. In the protest cases, it is preferable for the AC staff to send the claimant's first notice that own motion review or reopening is being taken. The protest memo will be included by the AC when they notify the claimant they are taking action. In payment cases, follow GN 03103.250C notice procedures without mentioning the referral..