I-3-3-2.Abuse of Discretion

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

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, their 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 their 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 or inducing the claimant to amend their alleged onset date of disability in a manner that suggests that the ALJ will issue an unfavorable decision unless the claimant agrees to the amendment.

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 disqualify or recuse themself from adjudicating a case. For more information about ALJ disqualification, see 20 CFR 404.940 and 416.1440 and HALLEX I-2-1-60. If the AC determines the ALJ abused their discretion by failing to disqualify themself, and remand is appropriate, the case may be returned to a different ALJ.