TN 16 (11-23)

DI 42010.080 Preparation of the Protest Memorandum

A. Overview

When the processing center (PC) believes that a hearing decision or Appeals Council (AC) decision cannot be effectuated as written, the technician prepares a protest memorandum requesting correction. See DI 42010.065A for information on the circumstances that may warrant a protest.

Protest memoranda should be well written, concise, and clearly identify the issues that pose a barrier to effectuation. PCs will refer protest memoranda to the Office of Appellate Operations (OAO) only and will not send a copy of the memoranda to the claimant, representatives, or the hearing office (HO). If the AC acts to take own motion review or reopen based on the protest memorandum, OAO will notify the claimant, representative(s), and the HO (if remanding) directly. Protest memorandum should be sent to OAO in a Microsoft Word document at ^DCARO OAO Protest Cases.

In all cases, the protest memorandum becomes part of the permanent claims file and is subject to inspection by the claimant and representative. Technicians should pay close attention to the tone of the memorandum. Assume the claimant and representative(s) may read it.

B. Content and structure

All protest memoranda must include:

  • A brief opening statement which outlines the reason for the protest, the name and SSN of the claimant, any other earnings records involved, the date of the decision, and the name of the issuing administrative law judge (ALJ), attorney advisor, or administrative appeals judges (AAJs);

  • A summary of the facts of the case and analysis of the issue in question;

  • Citations to relevant portions of the Social Security Act, the Code of Federal Regulations (CFR), and any applicable Acquiescence Rulings;

  • A closing statement that restates the basis for referring the protest; and

  • Contact information for the PC protesting the decision, including name, title, component, and PC control e-mail address

C. Example

On June 19, 2021, ALJ Jane Doe issued a favorable decision granting disability insurance benefits (DIB) in the case of John Smith, SSN ###-##-####. We believe this decision is incorrect because the claimant does not meet insured status under title II of the Social Security Act at the established date of onset.

J. Smith filed an application for a period of disability and DIB on April 11, 2017. The claim was denied at the initial and reconsideration levels. At the hearing, Judge Doe found J. Smith disabled as of January 12, 2017. In the decision, Judge Doe states that J. Smith's date last insured for DIB was June 30, 2017. A review of J. Smith’s earnings record shows that his date last insured is December 31, 2016.

Section 223(a) of the Social Security Act states that disabled individuals must meet insured status to be entitled to monthly benefits under title II.

Because J. Smith does not meet insured status on the date of onset, we are returning the case to you and respectfully requesting a revised decision. Please send your determination to PC 7, Division I as soon as possible.

John Tech, Reconsideration Disability Examiner (410) 555-5555

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DI 42010.080 - Preparation of the Protest Memorandum - 11/28/2023
Batch run: 11/28/2023