SSR 82-13


PURPOSE: To announce SSA's institution of a program for ongoing review of administrative law judge decisions in the Office of Hearings and Appeals and to state the policy on Appeals Council review of hearing decisions upon the Appeals Council's own motion under this program.

CITATIONS (AUTHORITY): Sections 205 and 1631(c) and (d), of the Social Security Act, as amended; section 304(g) of Public Law 96-265; Social Security Administration Regulations, title 20, Code of Federal Regulations, sections 404.969, 416.1469, and 422.205; Statement of Organization, Functions and Delegations of Authority (45 FR 79168, November 28, 1980); and Decision of the Commissioner of Social Security dated July 20, 1981.

PERTINENT HISTORY: By delegation of authority from the Secretary of Health and Human Services, the Appeals Council of the Office of Hearings and Appeals, Social Security Administration, reviews decisions and dismissal actions of administrative law judges involving retirement, survivors, disability, health insurance, and supplemental security income on motion of appellants or on its own motion.

Section 304(g) of Public Law 96-265, enacted June 9, 1980, states that: "The Secretary . . . shall implement a program of reviewing, on his own motion, decisions rendered by administrative law judges as a result of hearings under section 221(d) of the Social Security Act . . . ."

As a result of this provision, SSA is instituting a new review process, as described in this Program Policy Statement. In implementing this process the Appeals Council will, where appropriate, exercise its preexisting, own motion review authority.

The statutory provision is the result of Congressional concern about what is considered a high overall percentage of claims for disability benefits allowed at the hearing level and the wide variance in allowance rates among individual administrative law judges. It also reflects Congressional intent that there should be a review program that incorporates the same adjudicative principles that bind the administrative law judges and provides for uniformity of decision making at all adjudicatory levels.

Although the Appeals Council of the Office of Hearings and Appeals (OHA) receives and acts upon requests for review submitted by claimants dissatisfied with hearing decisions and dismissals, in the past several years the Council has not conducted an ongoing, pre-effectuation review of favorable administrative law judge decisions for the purpose of identifying the need for, and, where necessary, taking corrective action. Consequently, in accordance with the statutory mandate, OHA will conduct a comprehensive, ongoing program under which a prescribed percentage of administrative law judge decisions involving the issue of disability, particularly those allowing previously denied claims for disability benefits, will be evaluated prior to their effectuation, even though there is no request for review. When appropriate, the decision will be referred for possible review by the Appeals Council.

"Review" has a specific meaning as it relates to the Appeals Council. To "review on its own motion," when "the Appeals Council reviews," or similar usage means that the Appeals Councils stays the effect of the hearing decision with the intent to issue a new decision or order an administrative law judge to issue a new decision. It is important to note that P.L. 96-265 requires only the establishment of a program for reviewing cases upon the Secretary's own motion; it does not require the Appeals Council to review any specific case unless it decides there is reason to do so. Once the Appeals Council decides to review a hearing decision on its own motion, it may affirm, reverse or modify the decision or remand the case to an administrative law judge for further proceedings.

The policies for own motion review under section 304(g), as well as the delegation of authority to the Appeals Council, are stated herein for public understanding in view of the institution of an ongoing program of evaluation of administrative law judge (ALJ) actions, particularly those which result in decisions favorable to the claimants.

POLICY STATEMENT: The Appeals Council is charged with insuring that the final actions of the agency are proper and in accordance with the law, regulations and binding agency policies. As herein pertinent, the regulations of the Social Security Administration with respect to Appeals Council review provide as follows:

Sections 404.969 and 416.1469
"Appeals Council initiates review. Anytime within 60 days after the date of a hearing decision or dismissal, the Appeals Council itself may decide to review the action that was taken . . . ."

The regulations provide the Appeals Council the discretionary authority to review any decision or dismissal action for any reason. This is not a newly acquired authority but has existed for many years.

The ongoing review in accordance with P.L. 96-265 will be implemented primarily on the basis of the categories set forth below. Upon full consideration of the entire record, the applicable law, regulations and binding policies, the Appeals Council will exercise its own motion authority if any one of the following is present. (Binding policies which are not published in the Federal Register are generally available as Social Security Rulings, but also may be available in some other form when they have been identified pursuant to 5 U.S.C. 552(a)(2) as statements of policy and interpretation which have been adopted as binding by the Commissioner of Social Security.)

The Appeals Council will review a hearing decision if there appears to be an abuse of discretion by the administrative law judge. Such abuse will be considered present where an action taken by the administrative law judge is erroneous and without any rational basis, such as where there has been an improper exercise, or a failure to exercise, administrative authority. Although this concept cannot be defined comprehensively, examples of abuses of discretion include: failure to have the claimant submit evidence necessary to support his/her claim; failure to conduct a full and fair hearing; and failure to allow postponement of a scheduled hearing despite physician documentation of the claimant's unavailability for health reasons. An abuse of discretion may also occur where there is a failure to follow procedures required by law.

The Appeals Council will review a hearing decision for error of law. Error of law exists where there has been misinterpretation or misapplication of, or failure to consider, pertinent provisions of law, regulations, and binding agency policies. Misinterpretation or misapplication occurs where the decision is contrary to statutory or regulatory provisions or agency policies or where the decision is based on an erroneous legal standard.

The Appeals Council will also review a hearing decision where it is not supported by substantial evidence. Substantial evidence may be defined as that amount of evidence which, while it may be less than a preponderance, nevertheless is sufficient to convince a reasonable mind of the validity of a position taken on an issue. Under the substantial evidence rule, the Appeals Council evaluates the hearing decision by looking to the record as a whole in order to determine if sufficient evidence exists to support the administrative law judge's action, and stated findings and conclusions. This requires that the decision be based on sufficient quantity and quality of evidence so that a reasonable mind might come to the same conclusion.

In addition, the Appeals Council will review a hearing decision where there is a broad policy or procedural issue that may affect the general public interest. Review for this reason will generally be limited to circumstances in which a decision raises or addresses a question which has potentially far-reaching applicability for a significant number of claims.

The Appeals Council will not ordinarily review a hearing decision where the end result would remain unchanged unless there is a compelling need to do so.

Nothing in this Program Policy Statement alters or affects the Appeals Council's authority to reopen a decision under the rules set forth in regulations sections 404.988 and 416.1488. Under these regulations, the Appeals Council may reopen for any reason any decision within 12 months of the date of the notice of the initial determination. After 12 months, the Appeals Council may reopen a decision for such reasons as specified in the regulations.

The procedures and instructions for staff which provide support to the Appeals Council in performing its review functions are contained in staff manuals.

EFFECTIVE DATE: The ongoing program of comprehensive evaluation of administrative law judge actions within OHA commenced effective October 1, 1981.

CROSS-REFERENCES: Claims Manual sections 7166.4 and 13691.5.

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