BASIC (12-93)

A. Policy

1. Introduction

An ALJ decision is not subject to reversal or revision at the FO level. However, an RO may refer a questionable hearing decision to the AC for substantive review. This procedure does not constitute an appeal of that decision.

An administrative decision can be appealed only by a party to that decision; SSA, as the decisionmaking organization, is not a party, and cannot appeal its own decision. The AC's review and subsequent action on a case referred to it by an RO fall within the boundaries of administrative discretion and are governed by the rules of administrative finality or AC own motion review, depending on how long it takes to forward the case to the AC. (See SI 04070.000 for instructions on administrative finality.)

2. Criteria For Selecting ALJ Decisions For AC Review

a. The Decision Is Clearly Contrary to Law, Regulations or Ruling

An ALJ is bound by the law, regulations, and rulings. A questionable ALJ decision cannot be evaluated in terms of POMS guidelines alone.

NOTE: A useful test to apply is to review the decision in terms of the provisions of the law, regulations, and rulings cited as precedents or authority for the ALJ decision, and see whether the findings are justified under them.

b. The Decision Is Vague, Ambiguous, Internally Inconsistent or Otherwise Does Not Fully Resolve the Issue(s) Under Dispute

The hearing decision should:

• Address and resolve the issue(s) set out in the Notice of Hearing;

• Be specific;

• Eliminate the necessity for the effectuating FO to interpret the decision or infer an effectuating action from the decision; and

• Not omit any essential aspects of the dispute.

NOTE: If any of these criteria are not met, a request for AC review may be appropriate.

c. A Material Factor Pertinent to the Issue(s) Before the ALJ Was Clearly Not Considered In The Decision

If the folder contains any material which is pertinent to the issue(s) decided by the ALJ, but which is neither mentioned in the body of the decision, nor named in the List of Exhibits, you may assume that it was not considered. The decision should be referred to the AC for review if the evidentiary material not considered casts doubt on the decision.

In the event that a prior determination could be reopened under the rules of administrative finality, reopening is precluded if the hearing decision states specifically that consideration was given to reopening that prior determination, and it was not reopened. If a hearing decision does not clearly state that the ALJ considered and rejected such a reopening and the FO cannot reopen under the criteria in SI 04070.000, the case should be referred to the AC for review, even if the prior application (on which the prior determination was based) is listed as an exhibit.

B. Procedure Protesting the ALJ Decision

1. Effectuating FO

a. Review and Forward to RO, ARC, Programs

If a hearing decision meets the criteria in SI 04030.060A.2., forward it and the original folder containing all claims documentation to the RO, ARC, Programs, along with a recommendation to refer the decision to Office of Analytics, Review, and Oversight (OARO), Office of Appellate Operations (OAO).

In order that the decision can be protested within the 60-day limit for AC own motion review, forward it to the RO within 45 days after the date it was rendered. Even if you cannot meet the 45 day timeframe, you can still forward it for possible consideration under reopening procedures.

NOTE: Most regions have established regional procedures governing this action.

Summarize the facts on a Report of Contact (RC) and make a clear and detailed recommendation that makes specific reference to the provisions of the law and/or regulations, and/or the particular Social Security Ruling (SSR) which the decision contravenes or disregards.

b. Materials to Be Included in the File

Include an updated SSIRD, and discard old queries only after review to ensure that they do not contain data (e.g., in the NOTC segment) unavailable on other printouts.

If necessary, obtain and include in the folder offline “H” and “J” queries so that pertinent notice dates (and paragraphs), payment dates and amounts, etc., are available to the decisionmaker.

c. Paying Cases That Have Been Referred to the AC

If a hearing decision meets the criteria in SI 04030.060A.2. and has been forwarded to the AC by the RO, ARC, Programs (see SI 04030.060B.2.) do not pay the case if the AC decides to take the case on own motion review and notifies the appellant within 60 days of the date of the hearing decision.

In all other instances, compute the payment based on the information in file. If the appellant is already receiving payments, effectuate the ALJ's decision in full. If any information is ambiguous or missing, pay the most reasonable amount that is justified by the information in file and effectuate as quickly as possible.

2. Functions of the RO, ARC, Programs

a. Review of Folder and Recommendation

• Upon receiving the original folder and the memorandum of recommendation from the effectuating component, review the file.

• Either prepare the formal memorandum of referral to OARO, OAO or return the case to the effectuating FO with a memorandum stating why the decision should not be referred for AC action.

• Direct the referral memorandum to the Deputy Director, OAO, OARO in the format shown in SI 04030.060B.2.b.

  NOTE: The RC, at his/her discretion, may delegate signoff authority.

• As shown in SI 04030.060B.2.c., state the appellant's name and SSN in the subject line, the fact that a request for review of the ALJ's decision is the subject of the memorandum, and the date of that decision.

  REMINDER: Make certain that the folder contains updated SSID queries for the current and any pertinent prior records (see SI 04030.060B.1.b.).

b. Format of the Protest Memorandum

• Restate the ALJ's findings on the questionable issue(s) in the first paragraph of the memorandum (without significant paraphrasing).

• Follow this with a paragraph containing a discussion of the actual facts of the case pertinent to the issue, including the dates and contents of any initial and reconsidered determinations affecting the disputed issue(s).

• Cite the appropriate sections of the act, the Regulations, State Agreements, or particular SSR's which are applicable to the disputed issue(s), and which would present the reason(s) for the apparent error in the hearing decision. Do not cite references to the POMS or any other program operating manuals.

• Quote directly from the exhibits in the closing paragraph; all requests for reopening and revision are made under the authority of the appropriate regulatory provisions.

c. Copy to the Appellant

Because the AC will send a copy of the memorandum of referral to the appellant and/or the representative if it decides to review the hearing decision, draft the memorandum in a neutral and objective tone.

Do not name the author of the memorandum under any circumstances. Also, do not make any specific (i.e., named) reference to any other case or decision.

Only refer to other memorandums, or to any other documents internal to SSA if absolutely necessary. If they are mentioned, include such documents in the folder, since they are included in the prereview information sent to the appellant and/or the representative.

d. Tracking Protest Memorandums

Control and track the decision until final action is taken. If the case is vacated and/or remanded, continue tracking until a new decision is rendered and effectuated.

e. Sequence of File Material

Even if the HO or AC has rearranged the file material so that the folder is no longer in adjudicative order, do not rearrange it again.

If any documentary material in the folder is crucial to the rationale upon which the recommendation to reopen is based, use paperclips to mark its location, and make specific reference to it in the body of the memorandum of referral.

f. Mailing the File to OARO

Send all the material (the memorandum of referral and the original claim file) to:

  DO NOT OPEN IN MAILROOM

Send the protest memo to ^DCARO OAO Protest Cases per HA I-2-9-70B.2.

NOTE: It is no longer necessary to send an information copy of an ALJ protest memorandum to Central Office.

C. Exhibits Sample Protest Memoranda

1. Exhibit 1 - Review of Protective Filing Date (Oral Inquiry) Issue

Exhibit 1 Sample Memorandum Requesting Review of Protective Filing Date (Oral Inquiry) Issue

In his decision, the administrative law judge (ALJ) found “. . . that as of the date of the application filed on May 13, 1992 the claimant was disabled as defined in section 1614(a)(3) of the Social Security Act.” This decision reversed the initial determination dated August 28, 1992, and the reconsidered determination dated November 3, 1992.

A review of the file reveals that the ALJ established the claimant's eligibility based on disability effective with the month of her formal application for supplemental security income (SSI). However, the file contains an SSA-2514 (Record of Claimant's Intent to File) dated April 30, 1992 which indicates that an oral inquiry was made on behalf of the claimant by her representative on that date.

Regulation No. 16, section 416.345, provides that an oral inquiry about SSI benefits can serve to establish a protective filing date for such benefits if a claimant, or his/her representative, files a formal application within a prescribed time frame. The claimant has complied with the regulations. In addition, Regulation No. 16, section 416.501, provides that “Payment of supplemental security income benefits will be made for the month of application and each subsequent month thereafter in which all requirements for eligibility . . . are met.” Accordingly, a determination of disability for the month of April 1992 is necessary since the claimant is potentially eligible for benefits for that month.

Therefore, we recommend that you consider reopening or reviewing the decision on your own motion in accordance with the authority provided in Regulation No. 16, sections 416.1467-416.1470 and 416.1487-416.1494.

2. Exhibit 2 - Review of Overpayment Issue

Exhibit 2 Sample Memorandum Requesting Review of Overpayment Issue

In his decision, the ALJ found, that “. . . In 1990 the claimant incurred a supplemental security overpayment of $638 . . . ,” that “Collection of the overpayment has been suspended . . . ,” and “. . . . On August 2, 1992, a retroactive supplemental security income payment of $42.32 was withheld from the claimant and used to reduce the already suspended overpayment.” He then decided “. . . that the supplemental security income benefit of $42.32 was improperly withheld from the claimant and should be paid to her forthwith.” The “Evaluation of the Evidence” section of the decision indicates that the ALJ based his decision on the premise/conclusion “. . . that it was improper to withhold any sum for application to an overpayment for which collection has been suspended.”

Regulation No. 16, section 416.543, provides that any underpayment for which an individual is eligible can be used to reduce any overpayment determined to exist for a different period unless recovery of such overpayment has been “waived” (underscoring provided) pursuant to Regulation No. 16, section 416.550-416.555. Regulation No. 16, section 416.570 further provides that “Where a recipient has been overpaid, the overpayment has not been refunded and waiver of adjustment, or recovery is not applicable, the overpayment is adjusted against any payment due the overpaid recipient or his eligible spouse.”

Therefore, we recommend that you consider reopening or reviewing the decision on your own motion in accordance with the authority provided in Regulation No. 16, sections 416.1467-416.1470 and 416.1487-416.1494.

3. Exhibit 3 - Review of Resources Issue

Exhibit 3 Sample Memorandum Requesting Review of Resources Issue

In his decision, the ALJ finds that “. . . the claimant is in possession of $2,402.42 in savings which are excludable from countable resources per Regulation No. 16, section 416.1236(a)(1) . . . ,” and the “Claimant's inaction in permitting to accrue to this account is in no way considered commingling of these privileged resources with other countable resources, as prescribed by Regulation No. 16, section 416.1236(b) . . . .” As a result, he concluded that the claimant continues to meet the resource requirements of title XVI, his eligibility for SSI continues, and that he was not overpaid $2,434.44. This decision reversed the initial determination of October 21, 1992, and the reconsidered determination of January 16, 1993.

A review of the evaluation of the evidence section of the decision indicates that the claimant had been the recipient of money under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, $2,000 of which he deposited in a bank account in
September 1991. In making the deposit, the claimant unknowingly commingled the funds received under the 1970 Act with other countable resources.

Pursuant to Regulation No. 16, section 416.1236 (a)(1), the money received by the claimant was excluded from being counted as a resource to the claimant. However, Regulation No. 16, section 416.1236(b) further provides that “. . . In order for payments and benefits listed in paragraph (a) to be excluded from resources, such funds must be segregated and not commingled with other countable resources so that the excludable funds are identifiable.”

The hearing decision is contrary to regulations because Regulation No. 16, section 416.1236 ff. does not provide any exemption from countability as a resource because excludable funds are/may be accidentally commingled with countable resources. Moreover, the interest accrued on excluded funds/ resources is countable as unearned income even if the resource itself is excluded per Regulation No. 16, section 416.1210(j). Additionally, if a sufficient amount of interest on such excludable funds/resources were allowed to accrue to a significant amount, the accrued amount would become a resource at the beginning of each month.

Therefore, we recommend that you consider reopening or reviewing the decision on your own motion in accordance with the authority provided in Regulation No. 16, sections 416.1467-416.1470 and 416.1487-416.1494.

D. References

• Appeals Council (AC) Jurisdiction, GN 03104.350

• Processing Question Title II Issues, GN 03103.250 and GN 03103.260