I-3-3-2.Abuse of Discretion

Last Update: 4/05/13 (Transmittal I-3-49)


20 CFR §§ 404.940 and 416.1440; SSRs 82-13 and 13-1p

A. General

The Appeals Council (AC) will assume jurisdiction to review a case when there appears to be an abuse of discretion by the administrative law judge (ALJ). An abuse of discretion is present where an ALJ's action is erroneous and without any rational basis, or is clearly not justified under the particular circumstances of the case. This includes situations where an ALJ improperly exercises, or fails to exercise, his or her administrative authority. See Social Security Ruling (SSR) 82-13. An abuse of discretion may also occur when an ALJ does not follow procedures required by law or agency policy.

Examples of abuses of discretion include, but are not limited to, the following:

  • Not permitting a claimant to submit evidence necessary to support his/her claim;

  • Not postponing a scheduled hearing despite physician documentation of the claimant's unavailability for health reasons; and

  • Not conducting a full and fair hearing, such as refusing to allow the claimant to testify or cross-examine witnesses.

B. Abuse of Discretion in SSR 13-1p

SSR 13-1p sets forth how the AC will address specific allegations of unfairness, prejudice, partiality, bias, misconduct, discrimination, or the equivalent about an ALJ under the abuse of discretion standard.

The AC will also use the abuse of discretion standard of review in evaluating objections from a claimant or representative about an ALJ's decision not to recuse himself or herself from adjudicating a case. For more information about ALJ recusal, see 20 CFR 404.940 and 416.1440 and HALLEX I-2-1-60. If the AC determines the ALJ abused his or her discretion by failing to recuse himself or herself, and remand is appropriate, the case may be returned to a different ALJ.