VB 02503.050 Questionable SVB Hearing Decisions
An ALJ decision is not subject to reversal or revision at the FO level. However, an RO may refer a questionable hearing decision to the AC for substantive review. This procedure does not constitute an appeal of that decision.
An administrative decision can be appealed only by a party to that decision; SSA, as the decisionmaking organization, is not a party, and cannot appeal its own decision. The AC's review and subsequent action on a case referred to it by an RO fall within the boundaries of administrative discretion and are governed by the rules of administrative finality or AC own motion review, depending on how long it takes to forward the case to the AC.
2. Criteria For Selecting ALJ Decisions For AC Review
a. The Decision Is Clearly Contrary to Law, Regulations or Ruling
An ALJ is bound by only the law, regulations, and rulings, not by the interpretations of them contained in the POMS. An ALJ's acceptance of and reliance on POMS as precedential is optional. A questionable ALJ decision cannot be evaluated in terms of POMS guidelines alone.
NOTE: A useful test to apply is to review the decision in terms of the provisions of the law, regulations, and rulings cited as precedents or authority for the ALJ decision, and see whether the findings are justified under them.
b. The Decision Is Vague, Ambiguous, Internally Inconsistent or Otherwise Does Not Fully Resolve the Issue(s) Under Dispute
The hearing decision should:
Address and resolve the issue(s) set out in the Notice of Hearing;
Eliminate the necessity for the effectuating FO to interpret the decision or infer an effectuating action from the decision; and
Not omit any essential aspects of the dispute.
NOTE: If any of these criteria are not met, a request for AC review may be appropriate.
c. A Material Factor Pertinent to the Issue(s) Before the ALJ Was Clearly Not Considered In The Decision
If the folder contains any material which is pertinent to the issue(s) decided by the ALJ, but which is neither mentioned in the body of the decision, nor named in the List of Exhibits, you may assume that it was not considered. The decision should be referred to the AC for review if the evidentiary material not considered casts doubt on the decision.
In the event that a prior determination could be reopened under the rules of administrative finality, reopening is precluded if the hearing decision states specifically that consideration was given to reopening that prior determination, and it was not reopened. If a hearing decision does not clearly state that the ALJ considered and rejected such a reopening and the FO cannot reopen under the criteria in SI 04070.000, the case should be referred to the AC for review, even if the prior application (on which the prior determination was based) is listed as an exhibit.
d. Mailing the File to ODAR
Send all the material (the memorandum of referral and the original claim file) to: Deputy Director, Office of Appellate Operations
Office of Disability Adjudication and Review
5107 Leesburg Pike
Falls Church, VA 22041.