I-3-1-40.Workup of Case by Analyst — Bureau Protest Cases Consideration of Own Motion Review

Last Update: 9/08/05 (Transmittal I-3-36)

A. Selection of Protest Case

When effectuating components believe a decision is contrary to the law, regulations, or rulings, they may forward an ALJ or Appeals Council decision to the Director of Operations, OAO, for further consideration. Effectuating components may also forward cases if they receive additional evidence which requires further action on a case. The Director's office distributes these cases to the appropriate OAO branch.

B. Assignment of Protest Case

To comply with the 60-day period allowed by regulation for the Appeals Council to act on its own motion, branch control personnel must assign protest cases to analysts upon receipt, and the analysts must work these cases as soon as possible.

C. Review of Protest Cases

See I-3-1-30 C. and D. regarding the standard of review and the time limit for own motion review.

D. Protest Situations in Which Own Motion by the Appeals Council Is Not Usually Warranted

There are several common types of “protest” cases, and the procedures followed will vary accordingly.

1. Substantive Protests - Own Motion Not Recommended

When a protest memorandum concerns the propriety of the ALJ or Appeals Council's ultimate conclusion on other than technical grounds, i.e., calls into question the merits of the case, and the analyst concludes that own motion review by the Council is not appropriate, the analyst will prepare a case analysis. The analyst will also prepare a draft response to the protesting component for the signature of the AAJ.

2. Protest Concerns Technical or Non-Judgmental Error

When a protest memorandum concerns a technical or non-judgmental error in an ALJ's decision, and correction of the error will result in a decision at least as favorable to the claimant as the existing decision, the analyst will consult with the Branch Chief as to whether the ALJ may be contacted by telephone to request an amended decision.

E. Protest Situations in Which Own Motion Is Warranted

If after review of the record and a complete recording audit, a recommendation for own motion review by the Appeals Council is appropriate, the analyst will follow the procedures in I-3-6-50 ff. in preparing and routing the recommendation and action document. Because the Appeals Council must take own motion within 60 days after the ALJ's action, the analyst must make every effort to get the case to the AAJ no later than the 55th day after the ALJ's action. When it is not possible to meet this deadline, the analyst will carry the case to the AAJ to ensure that action may be taken within the 60-day limit. If the 60-day time limit for own motion has expired, the analyst will consider whether a recommendation to reopen is appropriate. See I-3-9-10, Protest Cases.

The analyst must prepare the Appeals Council's action document to include proffer of the protest memorandum to the claimant and representative.

F. Protest Replies

  1. If the protest was filed by a Regional Commissioner's Office, it is necessary to respond to the protest memorandum and send status reports to that office. The OAO branch staff will inform the Regional Commissioner's Office of the action the Appeals Council has taken or intends to take and send subsequent reports (if necessary) at least every 90 days.

  2. If the protest was filed by a processing center (PC), i.e., a program service center or the Office of Disability Operations (ODO), it is not necessary to respond to the protest memorandum when the Appeals Council takes action pursuant to the protest.

    Specifically, if the Appeals Council takes the action requested and either issues a decision, remands the case to an ALJ, refers the case to an ALJ to consider reopening (See I-3-9-10, Protest Cases), or obtains an amended decision, it is not necessary to respond to the protesting PC.

  3. In any case in which the analyst recommends that the Appeals Council decline to take the action requested by the protesting component, the analyst will also prepare, for the signature of the AAJ, a response explaining the basis for the Appeals Council's declination. The analyst will forward the proposed response to the AAJ at the same time as the case recommendation.

G. Addresses for Protest Replies

  1. ODO Protests — send response to:

    1500 Woodlawn Drive
    Baltimore, MD 21241
  2. PSC Protests — send response to the issuing PSC

  3. Regional Commissioner Protests (SSI) — send response to the issuing Regional Commissioner.