I-3-6-10.Protests of a Prior Decision

Last Update: 12/15/17 (Transmittal I-3-162)

A. Protesting a Decision to the Appeals Council

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

When an effectuating component or Regional Commissioner's office (collectively, “protesting component”) believes an administrative law judge (ALJ) or an Appeals Council (AC) decision cannot be effectuated, it may refer the case to the AC. The Division of Quality in the Office of Appellate Operations (OAO) typically handles these requests.

A protesting component may refer a claim(s) to the AC for any of the following reasons:

  • The decision contains a typographical or clerical error affecting the outcome of the claim(s);

  • The decision is clearly contrary to the Social Security Act (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 or AC 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.

2. Authority of Appeals Council

The AC may 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). The AC adheres strictly to the 60-day time period for own motion review. If 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. 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 and I-3-9-20).

B. Initial Staff Actions

OAO staff coordinating the protest workload will check the ^DCARO OAO Protest Cases mailbox daily for protests of decisions. OAO staff will check that an email contains the information as described in HALLEX I-2-9-70 B. Staff will also check that the protest memorandum follows the format in Program Operations Manual System (POMS) SI 04030.060C and DI 42010.065. Staff will ensure that the protest memorandum has been uploaded to section B of eView, if available, and regardless of whether the claim(s) file is a Certified Electronic Record (CEF). If it is a paper claim(s), the protest memorandum will always be included with the paper claim(s) file. OAO staff will respond to emails requesting additional information, as needed.

Upon receipt of the request and protest memorandum, OAO staff will establish a control in the Appeals Review Processing System (ARPS). In ARPS, OAO staff will:

  • Identify the “Workload Type” as “Bureau Protest (BP)”;

  • Input as the “Request Date” the date of the most recent ALJ or AC decision, or the initial determination notice if the claim(s) is outside of the own motion period; and

  • Input the “Received Date” as the date the protest memorandum was received by OAO, based on the date of the email notification, or the date stamp for paper claim(s) file received through the mail.

C. Analyst Actions

OAO staff coordinating the protest workload will immediately assign protest cases to an analyst. The analyst will review the protest memorandum, the evidence of record, and the decision, and audit any relevant hearing recording(s). The analyst will then recommend appropriate AC action. He or she may recommend the AC take own motion review within the regulatory 60-day time period (see HALLEX I-3-6-1), reopen or revise the decision (see HALLEX I-3-9-1 B, I-3-9-20, and I-3-9-70), or decline the protest.

The analyst will complete a case analysis in ARPS and prepare all relevant documentation and notices.

NOTE:

When the AC initiates own motion review based on a protest, the AC must proffer the protest memorandum to the claimant and representative, if any, unless the AC intends to issue a fully favorable decision (see HALLEX I-3-6-20 and I-3-7-1).

staff or analysts will ensure that the claim(s) file contains all relevant documentation including the protest memorandum, any correspondence, any notices, and any action document (e.g., own motion notice as described in HALLEX I-3-6-20, declination of protest memorandum, remand order, or decision).

f there is an associated paper claim(s) file, the analyst will also create an Appeals Folder (AF). The AF must include the protest memorandum, the most recent ALJ or AC decision, and any other relevant documentation used to make the recommendation.

The analyst will also enter any To Do Item(s) and Remark(s) in ARPS and annotate eView regarding any documents that need to be proffered.

D. Adjudicator Actions

AAJs adjudicate all protest cases. When own motion review or reopening is recommended, the AAJ designated as the A member adjudicator will review the analyst's recommendation and any associated document(s). If the A member agrees with the recommendation for own motion review, he or she will forward the case to the AAJ designated as the B member for consideration. Either adjudicator may return the claim(s) file to the analyst for further analysis, revision, or preparation of a different action. If both adjudicators agree with the action, they will sign the action document, and staff will release it. If the AC issues a notice of review, OAO staff will establish a 35-day diary for receipt of a response.

When own motion review or reopening is not appropriate, one AAJ will sign the declination of protest memorandum. The declination of protest memorandum will clearly explain the reasons for declining to take own motion review or to reopen. OAO staff will include the declination of protest memorandum in the “B” section of the Certified Electronic File (CEF) or paper claim(s) file.

E. Response to the Protesting Component

OAO staff will notify the protesting component of its decision to decline, reopen or take own motion review by email.