TN 16 (11-23)

DI 42010.065 Protest of Administrative Law Judge or Appeals Council Decisions

A. Referring protests to the Office of Appellate Operations (OAO)

1. Processing center (PC) questions the decision

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).

NOTE 1: 

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.

NOTE 2: 

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.

NOTE 3: 

Do not notify the hearing office or ALJ when referring a protest to OAO.

2. Other component questions decision

As reviewing and effectuating title II hearing decisions is a PC responsibility, personnel in field offices (FO) and other SSA components do not protest hearing decisions themselves. However, if the FO identifies a problem with a decision, they will send a memorandum to the appropriate PC component for possible referral to OAO. To ensure the PC is notified about the potential protest issue, contact the PC using the instructions in GN 01070.228. If the time limit for protest is close to elapsing, we recommend contacting the PC through the manager-to-manager process. For an explanation on how to use the manager-to-manager process see GN 01070.228A5.

3. Process

The PC prepares a protest memorandum for all title II protest referrals questioning an ALJ’s medical decision. The PC also prepares a memorandum for cases involving non-disability issues (e.g., possible reopening of prior application, insured status not met, and work in period ruled on). For examples of the content and structure of a protest memo, see DI 42010.080.

The protesting component e-mails the protest memorandum in a Microsoft Word document to ^DCARO OAO Protest Cases and copies their component’s control box for documentation purposes. The hearing office that issued the decision should not be copied on the email.

In addition to e-mailing the protest memorandum to OAO, the PC uploads the protest memorandum to section B of the electronic folder in eView using document type 2095-Protest Memo. If there is a paper claim file, the PC adds the protest memorandum to the paper file and sends the paper case to OAO using office code LF6, and immediately forwards the file via UPS two-day delivery to the address below:

Social Security Administration

Office of Appellate Operations

Attn: QRB 1, Division of Quality Review

6401 Security Blvd

Baltimore, MD 21235-6401

NOTE 1: 

If the case is an Electronic Disability Collection System (EDCS) exclusion (paper-only), and the ALJ issued a title XVI decision concurrently, prepare another copy of the protest memorandum. Send the copy of the memorandum with a copy of the title II decision and any title XVI material under cover of an SSA-408 to the servicing FO indicating that the attached material is forwarded for any necessary action on the title XVI case. Include the remark “You will receive a copy of any subsequent effectuation action.” Set a control for the case to send a copy to the regional effectuating component when OAO responds to the memorandum. In addition to forwarding the paper folder and memorandum to the servicing FO, email the protest memorandum to the servicing FO email control box found in DOORS.

NOTE 2: 

The agency’s utilization of the National Directory of New Hires (NDNH) query must be consistent with the instructions set forth in SI 00810.550. Accordingly, the AC generally cannot disclose, associate or exhibit this query with the record when acting on a protest (see HALLEX I-3-2-12). Therefore, if a protest issue relates to recent earnings, the PC should follow the instructions in GN 01010.009 to develop and provide earnings evidence prior to submitting the protest.

B. Appeals Council (AC) own motion review

1. Definition

The Appeals Council (AC), located within the Office of Appellate Operations (OAO), may review a hearing decision for reasons other than a request by the claimant.  When the AC reviews a hearing decision on its own initiative it is referred to as an “own motion” review. The AC may either take own motion review (within 60 days of the administrative law judge (ALJ) decision or dismissal) or reopen and revise the decision.

2. Basis for own motion review

The AC may review an unappealed hearing decision or dismissal order on its own motion within 60 days after the date of the decision or dismissal. Both favorable and unfavorable decisions are subject to own motion review, and cases may involve any type of benefits. The AC considers cases for potential own motion review based on referral, and cases may be identified for referral based on random or selective sampling techniques, or when an effectuating component believes that the decision cannot be effectuated because it contains a clerical error affecting the outcome of the claim; the decision is clearly inconsistent with the Social Security Act, the regulations, or a published ruling; or the decision is unclear regarding a matter that affects the claim’s outcome. (See 20 CFR 404.969 and 416.1469).

The AC will review a case on its own motion when:

  • There appears to be an abuse of discretion by the ALJ;

  • There is an error of law (including a possible failure to correctly apply administrative finality rules);

  • The action, findings or conclusions of the ALJ are not supported by substantial evidence;

  • A broad policy or procedural issue may affect the general public interest; or

  • The AC receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.

NOTE 1: 

See DI 80830.075B for OAO actions after the PC protests an ALJ decision.

NOTE 2: 

If the period for own motion review has expired, the AC may reopen and revise an ALJ or AC decision if the conditions for reopening exist. See 20 CFR 404.988 and 416.1488.

C. Procedure – Timely referral; no effectuation

1. Refer within 40 days

The PC should try to refer all protests of ALJ decisions to OAO in sufficient time to allow the AC to take own motion review, i.e., within 60 days of the date of the ALJ decision. 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 payments. See GN 03103.260C1. See DI 42010.065D for instructions on when payment is required.

For cases where there is a Certified Electronic Folder, please refer to DI 80830.075A.

2. Determine if AC takes own motion review

If we refer the protest within 40 days, do not initiate payments before the AC takes action on the protest. If the AC declines the protest, then the PC must promptly make payments (see DI 42010.065D and E below). The AC will notify the PC of its action on the protest by uploading the decision or response to the protest in iMAIN (Evidence Portal). (See DI 80830.075B).

If PC has not received any notification from OAO on the protest, the PC should contact OAO by emailing ^DCARO OAO Protest Cases no later than the 50th day after the date of the decision to determine if the AC will take action on the protest. If OAO expects to send timely notice for own motion review, accept that as final without further follow-up.

D. Procedure – Untimely referral

1. Payment required

If more than 40 days have elapsed since the decision date, initiate payment before referring a protest to OAO, unless the exceptions in DI 42010.065D.2  apply. For cases where there is a CEF, refer to DI 80830.075A.

Protest referrals that cannot be forwarded to the AC within 60 days of the ALJ’s decision or within the time period for the AC to take own motion review, should still be forwarded to the AC to consider potential reopening. Before forwarding the case, initiate payments including any retroactive payments. The AC may take action on the case under the reopening provisions of the regulations if the reopening time limits have not expired. All payments made because referral was not timely for AC own motion review are subject to adjustment or correction based on the AC review decision. If the ALJ’s favorable decision that is subject to the protest finds the claimant is insured at the established onset date (EOD), initiate payment due to the untimely referral even if the PC is protesting that the claimant does not have insured status.

2. Payment not required

Do not issue payments when a case is referred to the AC if:

  • The PC is protesting an issue other than insured status;

  • The PC notices insured status is not met at EOD; and

  • The ALJ did not address insured status in the decision.

When insured status is an issue, the PC should develop insured status at the same time it protests the ALJ decision. If, while the case is pending with the AC, the PC completes development of the case and affirms that the claimant is insured, the PC should check to see if the AC is going to take action. The PC will initiate payment if the AC declines to take jurisdiction and insured status is met. If the AC decides to take action, the PC will continue to withhold payments, and notify the AC that insured status is met or not met, see GN 03103.260D2.

3. Payment amount

Compute the payment amount based on the information in the file. To the extent that any information is ambiguous or missing, pay the most reasonable amount justified by the earnings that exist on file. Effectuate these payments as soon as possible.

All payments made because referral was not timely for AC own motion review are subject to adjustment or correction based on the AC review decision. Underpayments or overpayments may result.

For general information on overpayments, see GN 02201.000. For recovery policy, see GN 02210.000. For underpayments, see GN 02301.000.

Withhold 25 percent of any past-due benefits when the file contains a valid appointment between the claimant and a representative, the representative is eligible for direct payment, and the representative has not waived a fee or direct payment (see GN 03920.017 and GN 03920.035).

E. Notices

Do not send a notice of referral or a copy of the protest memorandum to the hearing office, the claimant, and/ or the representative. The AC staff will notify the claimant and the representative directly if it decides to take action in the case based on the own motion or reopening. In payment cases, follow procedures in GN 03103.250C without mentioning the referral.

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DI 42010.065 - Protest of Administrative Law Judge or Appeals Council Decisions - 11/28/2023
Batch run: 11/28/2023