I-2-9-70.Protests of Decisions

Last Update: 9/27/18 (Transmittal I-2-218)

A. When an Effectuating Component or Regional Commissioner's Office May Protest a Decision

When title II effectuating components (i.e., processing centers) or Regional Commissioners' offices, which handle all title XVI referrals, (collectively, “protesting components”) believe an administrative law judge (ALJ) or an Appeals Council (AC) decision cannot be effectuated, they may refer the case to the AC. The Division of Quality in the Office of Appellate Operations (OAO) typically handles these requests (see generally Program Operations Manual System (POMS) DI 42010.065, DI 42010.070, DI 42010.075, DI 42010.080, DI 80830.075, GN 03103.260, SI 04040.030, and SI 04030.060). The AC can take own motion review within 60 days of any decision or dismissal that is subject to its review (see 20 CFR 404.969 and 416.1469; see also Hearings, Appeals and Litigation Law (HALLEX) manual I-3-6-1). When the AC is unable to initiate own motion review within the 60-day time period, it may consider whether to reopen the decision (see 20 CFR 404.987 and 416.1487; see also HALLEX I-3-9-1, I-3-9-20, and I-3-9-70).

1. Protests for Typographical or Clerical Errors

For title II claim(s) only, where a decision contains a typographical or clerical error affecting the outcome of the claim, the effectuating component may first try to obtain an amended decision from the ALJ rather than first contacting the AC. The following are examples of typographical or clerical errors:

  • The wrong year is shown for the established onset date that is inconsistent with other findings in the decision;

  • An incorrect application date is shown; or

  • A mathematical error, misapplication of benefit tables, etc., results in an incorrect payment of a monthly benefit or an incorrect lump-sum death payment.

NOTE:

If the effectuating component tries to resolve the issue with the hearing office (HO), it will not also contact the AC. Contact with the AC is only appropriate after it has been determined that the HO cannot resolve the issue.

If the effectuating component staff requests an amended decision from the HO, he or she will contact the Hearing Office Director (HOD) or National Hearing Center Administrative Officer (AO) directly, rather than the ALJ, and advise the HOD or AO whether a title XVI decision is involved. The HOD or AO will then advise the ALJ of the error and request an amended decision. If an amended decision is not issued within 15 days, effectuating component staff will contact the HOD or AO for a status update. If the ALJ is opposed to issuing an amended decision, the effectuating component will prepare a protest memorandum following the format in POMS (see DI 42010.080) to submit to the AC (see B below).

If a title XVI claim is involved, see generally POMS SI 04030.060.

2. Protests for Other Reasons

For title II and XVI claims, a protesting component must refer a claim(s) directly to the AC for any of these following reasons:

  • The decision is clearly contrary to the Social Security Act, the regulations, or a published ruling;

  • The decision is vague, ambiguous, internally inconsistent, or otherwise does not resolve the issue(s) under dispute;

  • A material factor pertinent to the issue(s) before the ALJ was clearly not considered in the decision; or

  • Additional evidence is received that may affect the outcome of the claim or indicates that further action is required.

B. Procedures for Protesting a Decision with the AC

1. Timing

The AC has 60 days from the date that the decision was issued (not the date of the protest memorandum) to commence own motion review. Therefore, the protesting component must refer all protests of decisions as soon as possible.

NOTE:

The AC adheres strictly to the 60-day time period for own motion review. When the last day for taking own motion review falls on a Saturday, Sunday, legal holiday, or on any other day declared a non-work day (for any reason), the AC will not extend the deadline for taking own motion review to the next business day.

2. Protest Memorandum and Email to the AC

If the protesting component determines that it is appropriate to protest a decision to the AC, staff will prepare a protest memorandum and follow the format as instructed in POMS (see DI 42010.065, DI 42010.080, GN 03103.260, and SI 04030.060).

Whether the official claim folder is paper or electronic, the protesting component must email the memorandum to ^DCARO OAO Protest Cases, as soon as possible.

NOTE 1:

Do not copy the HO on the email notifying OAO of the protest, because it does not have jurisdiction to issue an amended decision once the component forwards a protest to the AC. Once a protest memorandum has been sent to the AC, no action should be taken by the HO.

NOTE 2:

It is important for protesting components to adhere to the protest memorandum format in POMS (see DI 42010.080 and SI 04030.060), because the AC will proffer the memorandum to the claimant and representative, if any, if it takes any action.

The email to the AC must include the protest memorandum as an attachment and must contain in the body of the email:

  • The name and social security number (SSN) of the claimant;

  • Any cross-reference number(s);

  • The date of the ALJ or AC decision;

  • A statement indicating whether the sender is protesting the ALJ decision or an AC decision;

  • The UPS tracking number of any paper claim(s) file and any relevant hearing recording sent to the AC; and

  • Any other relevant information.

3. Electronic Claim(s) File

In addition to emailing the protest memorandum to OAO, the protesting component will also upload the protest memorandum to section B of eView, using document type 2095-Protest Memo. See generally POMS DI 80830.075.

4. Paper Claim(s) File

If the claim(s) file is paper, in addition to emailing the protest memorandum to OAO, the protesting component will add the protest memorandum to the paper claim(s) file. It will then immediately forward via UPS two-day delivery the claim(s) file and any relevant hearing recording(s) to the address below:

OAO QRB 1
Room 1400
5107 Leesburg Pike
Falls Church, VA 22041
DO NOT OPEN IN MAILROOM

In addition, if there is also an electronic claim(s) file associated with the paper claim(s), even if the official claim folder is paper, the protesting component will upload the protest memorandum to section “B” of eView using document type 2095-Protest Memo.