I-3-10-5.Appeals Council Final Actions When a Fraud or Similar Fault Issue Is Raised
Last Update: 6/7/22 (Transmittal I-3-186)
A. Denying Review
If the Appeals Council (AC) determines that the administrative law judge (ALJ) properly addressed a fraud or similar fault issue, and there is no other basis for review under 20 CFR 404.970 and 416.1470, the AC will deny review.
When an issue of fraud or similar fault was not before the ALJ, but is identified by the AC on review, the AC may deny review if:
The fraud or similar fault issue is not material to the issues before the AC; or
The AC determines that the applicable standard of proof for fraud or similar fault is not met (see Hearings, Appeals, and Litigation Law (HALLEX) manual I-1-3-15 C).
B. Granting Review
1. Issuing a Decision
The AC may issue a decision to resolve an issue of fraud or similar fault when:
The file contains sufficient evidence to determine whether similar fault was involved in the presentation of evidence (see HALLEX I-1-3-15);
A remand is not necessary to decide all adjudication issues involved in the claim; and
The affected individual has had the opportunity to object to the disregard of evidence at the hearings level OR the AC finds that the ALJ erred in disregarding evidence and a favorable decision is warranted when the evidence is considered.
For example, the AC may issue a corrective unfavorable or partially favorable decision that disregards evidence considered by an ALJ if the individual had the opportunity to object to the disregarding of evidence at the hearings level.
Social Security Ruling 22-1p: Titles II and XVI: Fraud and Similar Fault Redeterminations Under Sections 205(u) and 1631(e)(7) of the Social Security Act requires that the affected individual have the opportunity to object to the disregarding of evidence at the hearings level. Therefore, the AC may not disregard evidence where the affected individual has not previously had the opportunity to object.
When reopening issues are involved, see HALLEX I-3-10-7.
2. Remanding the Case
The AC will generally remand a case if it is necessary to further develop the evidence regarding possible fraud or similar fault. The AC cannot disregard evidence when the affected individual has not yet had the opportunity to object to the disregarding of evidence at the hearings level.
In the remand order, the AC will not instruct the ALJ to request or consider an OIG investigation. Rather, the AC's discussion of why evidence is needed must be sufficient to instruct the ALJ on the development that is required.
When appropriate, the AC may indicate in a remand that only the fraud or similar fault issues need further consideration, and the medical merits of the case need not be reevaluated.