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HALLEX I-2-201

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Issues Before the Administrative Law Judge

Chapter: I-2-200

June 30, 1994

Current through March 1997

I-2-201 ISSUES (REVISED 11/92)

Citations: Social Security Act §§ 205(b) and 1631(c)(1); > 20 CFR §§ 404.900(b), > 404.905, 404.921, 404.938, 404.939, 404.944, 404.946(a), 416.1400(b), 416.1405, 416.1421, 416.1438, 416.1439, 416.1444, 416.1446(a)

"Claimant," as used herein, refers to the party to the initial, reconsidered, or revised determination who has requested a hearing before an ALJ, and any other party to the determination, or person whose rights may be adversely affected by a hearing decision. (See > I-2-145, Parties to the Hearing.)

A. General

A claimant filing a request for a hearing under titles II, XVI, or XVIII of the Social Security Act, as amended, or under title IV of the Federal Mine Safety and Health Act, as amended, may disagree with only specific aspects of the determination issued at the pre-hearing level. Although not required to do so by statute or regulation, claimants will frequently state the specific aspect(s) of the prior determination with which they disagree, particularly in the space that the Request for Hearing (RH) form (Form HA-501) provides for the claimant to set forth the reason(s) why he or she disagrees with the prior determination.

In connection with an RH, an ALJ will consider all issues which were brought out but not decided entirely in the claimant's favor in an initial, reconsidered, or revised determination. An ALJ will also consider issues previously decided in the claimant's favor if evidence presented before the ALJ issues the hearing decision causes the ALJ to question the favorable determination, or there is a clear lack of substantial evidence to support the favorable determination, or the determination is based on an error of law.

While a prior claim is pending judicial review, the ALJ must limit consideration of subsequent claims to the period, if any, following the period which is the subject of the judicial review. (See > I-2-816, Administrative Law Judge Decision When a Prior Claim Is Pending Judicial Review.)

B. Consideration of Issue(s) Previously Decided in Claimant's Favor

1. ALJ Receives Additional Evidence Not Considered by the Adjudicator at the Pre-hearing Level, and the Additional Evidence Is Material to the Issues Decided Favorably at Pre-hearing Level

An ALJ may receive and enter into the record evidence that adjudicators at the initial or reconsideration level did not evaluate. This additional evidence may raise a question about a favorable determination on an issue(s) made at the pre-hearing level. If the ALJ decides that such additional evidence is material to and warrants consideration of an issue(s) decided favorably at the reconsideration level, the ALJ must send advance notice to inform the claimant that the issue(s) will be considered at a hearing. The ALJ will base the decision on the weight of the evidence of record, and make appropriate findings on the issue(s).

2. No Additional Evidence Received That Is Material to Issue(s) Decided Favorably to Claimant at Pre-hearing Level

If the ALJ does not receive additional evidence that raises a question about a favorable determination made on an issue(s) at the reconsideration level, the ALJ will consider the issue(s) only if there is a clear lack of substantial evidence to support the favorable determination, or the determination is based on an error of law. The ALJ must send advance notice to inform the claimant that the issue(s) will be considered at the hearing.

 

 

HALLEX I-2-210

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Issues Before the Administrative Law Judge

Chapter: I-2-200

June 30, 1994

Current through March 1997

I-2-210 NOTICE OF ISSUES

The Administrative Law Judge (ALJ), or the hearing office (HO) staff under the ALJ's direction, must send notice of the hearing to the claimant and representative at least 20 days before the hearing, unless the claimant has waived the right to a 20-day notice. The Notice of Hearing must include a statement of all issues to be decided. (See > I-2-290, Samples--Issues and Examples of Language Which May Be Appropriate in the Notice of Hearing, and > I-2-315, Notice of Hearing.)

The ALJ may raise new issues (i.e., issues not previously adjudicated) or agree to adjudicate new issues raised by the claimant if the ALJ notifies the claimant in writing about the new issue(s).

EXCEPTION: An ALJ may not raise as a new issue any issue which is within the jurisdiction of a State agency under a Federal-State agreement concerning the determination of disability unless the ALJ is prepared to issue a decision which is wholly favorable on the issue of disability. If the decision is not wholly favorable, the ALJ must rule on the issues within his or her jurisdiction, and dismiss the request for hearing with respect to the issues within the State agency's jurisdiction. The ALJ must return the claim file to the State agency for action on the issues within their jurisdiction.

Example 1: An ALJ has a claim for supplemental security income based on disability. The claim was previously denied because of the claimant's excess income. There is no medical evidence in the file. The ALJ is prepared to rule favorably on the excess income issue, but is not prepared to issue a wholly favorable decision on the issue of disability because the medical record has not been developed. The ALJ cannot raise the new disability issue. The ALJ must rule only on the excess income issue, and return the claim file to the State agency for action on the disability issue.

Example 2: An ALJ has a claim for supplemental security income based on disability. The claim was previously denied because of the claimant's excess income. There is medical evidence in the file. The ALJ is prepared to rule favorably on the excess income issue, and find the claimant disabled, but as of a date later than the claimant alleges. The ALJ cannot raise the new disability issue. The ALJ must rule only on the excess income issue, and return the claim file to the State agency for action on the disability issue. (If, however, the ALJ is prepared to issue a wholly favorable decision on the issue of disability, the ALJ can raise it as a new issue.)

 

 

 

HALLEX I-2-220

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Issues Before the Administrative Law Judge

Chapter: I-2-200

June 30, 1994

Current through March 1997

I-2-220 OBJECTIONS TO THE ISSUES

If a claimant objects to the Administrative Law Judge's (ALJ's) consideration of any issue(s), the claimant must state the reason for the objection, and the ALJ must rule on the objection, either in writing or on the record at the hearing.

 

 

 

HALLEX I-2-225

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Issues Before the Administrative Law Judge

Chapter: I-2-200

June 30, 1994

Current through March 1997

I-2-225 EXPEDITED APPEALS PROCESS--CONSTITUTIONALITY OF STATUTORY ISSUES

Citations: > 20 CFR §§ 404.923 - 404.928, 410.629a - 410.629f, and 416.1423 - 416.1428 > 42 CFR §§ 405.718 - 405.718e

A. Expedited Appeals Process (EAP)--General

The EAP allows claimants meeting certain requirements to appeal their cases directly to a Federal district court without completing the administrative review process.

B. Requirements for Use of EAP

A claimant may use the EAP if all of the following requirements are met:

1. the claimant has received a reconsidered determination or hearing decision,

2. the claimant has submitted a written request to use the EAP within the time period for filing an appeal on the determination or decision,

3. a final decision of the Secretary has not been issued on the matter,

4. the claimant has claimed, and the Social Security Administration (SSA) agrees, that the only factor preventing a favorable determination or decision is a provision in the law that the individual believes is unconstitutional, and

5. all other claimants to the determination or decision agree to use the EAP.

C. Office of Hearings and Appeals (OHA) Jurisdiction of EAP Cases

OHA has jurisdiction to approve or deny an EAP request when a request for hearing (RH) has been filed and a final decision of the Secretary has not been issued. Jurisdiction within OHA is as follows:

1. Chief Administrative Law Judge (CALJ) Jurisdiction

The CALJ must determine if the criteria to use the EAP are met in any case on which an RH is pending and an ALJ has not issued a decision.

2. Deputy Chair of the Appeals Council Jurisdiction

The Deputy Chair of the Appeals Council must determine if the criteria to use the EAP are met in any case on which an ALJ has issued a decision. The Office of Appellate Operations (OAO) will process the EAP request. (See > I-3-560, Expedited Appeals Process.)

An SSA component outside OHA will have jurisdiction to determine if the criteria to use the EAP are met in any case on which an RH has not been filed.

If an HO receives an EAP request, the HO staff must send the request to the CALJ for action (if the CALJ has jurisdiction) or for forwarding to the component that has jurisdiction.

D. EAP Procedures in Cases at the Hearing Level

1. If a hearing office (HO) receives an EAP request and no RH has been filed on that case, the HO staff will, within 5 days of receiving the request, send the request to the CALJ to forward to the appropriate SSA component.

2. If an HO receives an EAP request and a Request for Hearing (RH) is pending on that case, the HO staff will, within 5 days of receiving the request:

a. send the EAP request, the RH, and the claim file (CF) to the CALJ for a determination as to whether the criteria for using the EAP are met; and

b. while the CALJ considers the EAP request, the HO must maintain the case on its master calendar docket and not otherwise process the case.

EXCEPTION: If the ALJ believes a reason other than the provision in the law which the claimant is contesting as unconstitutional exists for issuing an unfavorable decision, the ALJ should proceed with the hearing, issue a decision, and then send the EAP request, along with a copy of the decision and the CF, to the CALJ to forward to OAO.

3. The CALJ will, within 10 days of receiving an EAP request, determine if the criteria to use the EAP are met and take the following appropriate action:

a. If the criteria to use the EAP are not met, the CALJ will notify the claimant in writing of the reasons why they are not met, and return the CF to the HO for action on the RH. Upon receipt of such a case in the HO, the HO staff and the ALJ will proceed with their actions on the RH in the usual manner.

NOTE: Under the regulations, an administrative action denying an EAP request is not an initial determination subject to administrative or judicial review (See CFR §§ 404.903(k) and 416.1403(a)(4)). Therefore, there is no right to appeal a denial of a request to use the EAP and the denial is final.

b. If the criteria to use the EAP are met, the CALJ will:

ä prepare a formal agreement (See > 20 CFR §§ 404.926 and > 416.1426) and send the agreement to the EAP requestor for signature;

ä upon return of the signed agreement, also sign it and forward copies to all signatories and to the Office of Civil Actions (OCA), and place the original in the CF and a copy in the CALJ's files;

ä notify the HO that the EAP request has been approved and that the RH should be dismissed; and

ä forward the CF to OCA to hold pending potential filing of a civil action.

When the ALJ receives notice that the CALJ has approved the request to use the EAP, the ALJ will prepare and issue an Order of Dismissal. The basis for the dismissal should be by application of party. (See > I-2-420, Dismissal at the Claimant's Request.)


NOTE: If a request to use the EAP is approved, the requestor will have 60 days from the date he or she receives the copy of the signed agreement to file an action in a Federal district court.

 

 

 

HALLEX I-2-230

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Issues Before the Administrative Law Judge

Chapter: I-2-200

June 30, 1994

Current through March 1997

I-2-230 COLLATERAL ESTOPPEL--ISSUES ALREADY DECIDED UNDER ANOTHER TITLE

Citations: > 20 CFR §§ 404.950(f) and > 416.1450(f)

When an Administrative Law Judge (ALJ) has for decision an issue which has already been decided in a previous determination or decision in a claim involving the same claimant, but arising under a different title of the Social Security Act or under the Federal Mine Safety and Health Act of 1977, the ALJ will not consider the issue again. In this situation, the ALJ will apply the doctrine of collateral estoppel and accept the factual finding made in the previous determination or decision, unless there are reasons to believe that it was wrong. The ALJ will include in the current decision a reference to the factual finding made in the previous determination or decision, and a statement that such finding is binding in the current claim.

NOTE: Collateral estoppel differs from res judicata in that res judicata applies to final determinations or decisions of the Secretary made under the same title, about the individual's rights on the same facts and on the same issue or issues. Res judicata is a basis for dismissal of a request for hearing in its entirety or as to one or more issues, whereas collateral estoppel is not a basis for dismissal. (See > I-2-440, Res Judicata.)

 

 

 

HALLEX I-2-235

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Issues Before the Administrative Law Judge

Chapter: I-2-200

June 30, 1994

Current through March 1997

I-2-235 EARNINGS RELATED ISSUES THE ADMINISTRATIVE LAW JUDGE MAY AND MAY NOT ADDRESS--JURISDICTION

A. Social Security Administration (SSA) Jurisdiction

ä SSA has authority to determine what constitutes "wages" and "self-employment income" for Social Security purposes.

ä SSA has limited authority, under Section 218 of the Social Security Act, to make determinations regarding the Federal Insurance Contributions Act (FICA) tax liability for wages paid before January 1, 1987. This authority extends only to employees covered by Federal/State agreements entered into pursuant to section 218 of the Act.

B. Internal Revenue Service (IRS) Jurisdiction

- IRS has authority to make determinations regarding FICA tax liability for wages paid January 1, 1987 or thereafter. Section 9002 of the Omnibus Budget Reconciliation Act of 1986 (P.L. -509), enacted on October 21, 1986, transferred jurisdiction to IRS with respect to wages paid, under an agreement pursuant to section 218 of the Act, after December 31, 1986.

If a request for hearing includes or is based on tax issues (amounts, liability, withholding, refunds, etc.) for wages paid January 1, 1987 or thereafter, the request, with respect to such issues, should be dismissed for lack of jurisdiction. The dismissal notice should inform the claimant that only IRS may resolve tax issues. (See > I-2-430, Dismissal--No Right to a Hearing.)

 

 

 

HALLEX I-2-290

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Issues Before the Administrative Law Judge

Chapter: I-2-200

June 30, 1994

Current through March 1997

I-2-290 SAMPLES

ISSUES AND EXAMPLES OF LANGUAGE WHICH MAY BE APPROPRIATE IN THE NOTICE OF HEARING

A. Title II overpayments

The general issues are whether you were overpaid benefits within the meaning of Section 204 of the Social Security Act and, if so, whether recovery of the overpayment may be waived.

The specific issues are whether you were "without fault" as defined in Social Security regulation 404.507 in causing the overpayment and, if so, whether recovery of the overpayment would (1) defeat the purpose of Title II of the Act, as defined in Social Security regulation 404.508, or (2) be against equity and good conscience as defined in Social Security regulation 404.509.

B. Title XVI overpayments

The general issues are whether you were overpaid benefits within the meaning of Section 1631 of the Social Security Act and, if so, whether recovery of the overpayment may be waived.

The specific issues are whether you were "without fault" as defined in Social Security regulation 416.552 in causing the overpayment and, if so, whether recovery of the overpayment would (1) defeat the purpose of Title XVI of the Act, as defined in Social Security regulation 416.553, (2) be against equity and good conscience as defined in Social Security regulation 416.554, or (3) impede efficient or effective administration of title XVI due to the small amount involved as defined in Social Security regulation 416.555.

C. Title II and XVI overpayments

The general issues are whether you were overpaid benefits within the meaning of sections 204 and 1631 of the Social Security Act and, if so, whether recovery of the overpayment may be waived.

The specific issues are whether you were "without fault" as defined in Social Security regulations 404.507 and 416.552 in causing the overpayment and, if so, whether recovery of the overpayment would (1) defeat the purpose of Titles II and XVI of the Act, as defined in Social Security regulations 404.508 and 416.553, (2) be against equity and good conscience as defined in Social Security regulations 404.509 and 416.554, or (3) impede efficient or effective administration of title XVI due to the small amount involved as defined in Social Security regulation 416.555.

ENTITLEMENT ISSUES--TITLE II

A. Child's benefits issues

The general issue is whether you are entitled to child's insurance benefits within the meaning of section 202(d) of the Social Security Act.

The specific issues are whether you are the insured individual's child; you are dependent on the insured individual, or were dependent on the insured individual at the time of his or her death; you are unmarried; and whether the insured individual is fully insured, or was fully insured at the time of his or her death.

Other specific issues might be:

ä whether the claimant is under age 18;

ä whether the claimant became disabled, as defined in section 223 of the Social Security Act, prior to his or her 22nd birthday; and

ä whether the claimant is the insured's natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitable adopted child.

B. Lump-sum death payment issues

The general issue is whether you are entitled to the lump-sum death payment under section 202(i) of the Social Security Act.

The specific issues are whether you are the widow or widower of the deceased insured individual or are otherwise entitled to the lump-sum death payment in the absence of a widow or widower; whether you applied for the payment within two years of the date of the insured's death (unless you already were receiving wife's or husband's benefits on the deceased earnings record); and whether you were living in the same household with the insured at the time of his or her death.

C. Mother's or father's benefits issues

The general issue is whether you are entitled to (mother's/father's) insurance benefits under section 202(g) of the Social Security Act.

The specific issues are whether you are the (widow/widower) of a fully or currently insured individual; you are unmarried; and you have "in your care" the insured's child who is entitled to child's benefits and is under 16 years old or is disabled.

D. Old-age and special age 72 benefits issues

The general issue is whether you are entitled to old-age insurance benefits under section 202(a) of the Social Security Act.


The specific issues are whether you are at least 62 years old; you are "retired"; and you have enough Social Security earnings to be fully insured.

The specific issues for entitlement to special age 72 benefits are whether you have attained the age of 72; and, if you attained age 72 after 1968, whether you have 3 quarters of coverage, whenever acquired, for each calendar year after 1966 and before the year of your attainment of age 72.

E. Parent's benefits issues

The general issue is whether you are entitled to parent's benefits under section 202(h) of the Social Security Act.

The specific issues are whether you are the parent of the deceased fully insured wage earner; you are at least 62 years old; you are unmarried; and you were receiving at least one-half of your support from the insured at the time he or she died, or at the beginning of any period of disability he or she had that continued up to death.

F. Widow's and widower's benefits title II (non-disability)

The general issue is whether you are entitled to (widow's/widower's) benefits under section (202(e)) [for widow's] or (202(f)) [for widower's] of the Social Security Act.

The specific issues are whether you are the (widow/widower) based on a relationship described under Social Security regulations 404.345 and 404.346 of a person who was fully insured when he or she died; whether the conditions under Social Security regulation 404.335 are met; whether you are at least 60 years old; and whether you are unmarried.

G. Wife's, husband's, divorced wife's and divorced husband's benefits.

The general issue is whether you are entitled to (wife's/husband's/divorced wife's/divorced husband's) insurance benefits under section (202(b)) [for wife's or divorced wife's] or (202(c)) [for husband's or divorced husband's] of the Social Security Act.

The specific issue is whether you (are/were) the legal (husband/wife/divorced husband/divorced wife) of a fully insured wage earner. This will be determined by whether your relationship (is/was) one described in Social Security regulations 404.345 and 404.346, and whether one of the conditions set forth under Social Security regulation 404.330 is met.

In the cases of divorced spouses, some additional specific issues and examples of language are:

1. whether you were married to the wage earner for at least 10 years immediately before the divorce became final;

2. whether you remarried after the divorce;

3. whether you are currently married;

4. whether you are age 62 or older; and

5. whether you have been divorced from the wage earner for at least 2 years.

If the record does not already contain a copy of the claimant's marriage certificate or divorce decree, add the following or a similar statement to the notice of hearing:

Please send us a copy of your (marriage certificate) (divorce decree), or bring it with you to the hearing.

ELIGIBILITY ISSUES--TITLE XVI

A. Cessation of benefits "non-rollback conversion case"--application of State plan issues--Title XVI

Because your disability was established based on a State plan, the issue to be determined is whether you continue to be disabled under the criteria of the State plan or whether you are disabled under the Federal criteria.

B. Child's disability issues--Title XVI

The general issue is whether you are eligible, as a child, for supplemental security income within the meaning of section 1602 and 1614(a)(3)(A) of the Social Security Act.

The specific issue is whether you suffer from a medically determinable physical or mental impairment which compares in severity to an impairment that would make an adult unable to engage in any substantial gainful activity.

C. Excess income and resources--Title XVI

The general issue is whether you are eligible for supplemental security income under sections 1602 and 1611 of the Social Security Act. The specific issue is whether you have resources or income in excess of the amount set by the regulations as the maximum allowable to be eligible for supplemental security income.

NOTE: The specific resource or source of income in question should be set out.

ISSUES AFFECTING OTHER TYPES OF CLAIMS

A. Statutory blindness issues

The general issue is whether you are "blind" within the meaning of section 216(i) of the Social Security Act.

The specific issues are whether you are fully insured and whether your central visual acuity is 20/200 or less in your better eye with the use of a correcting lens, or whether your field of vision subtends an angle of no greater than 20 degrees in your better eye and if such condition has lasted or can be expected to last at least 12 months.

B. Age issues


When the age of an individual is in dispute, state the issue as a specific one. For example:

The specific issue to be determined is date of birth.

C. Benefit computation issues

When the Social Security Administration's (SSA's) computation of the claimant's benefits is in dispute, state the issue as a specific issue. For example: The specific issue in this case is whether a benefit amount was correctly computed.

D. Deductions, reductions or non-payment of benefits issues

There are various reasons why an individual's benefits may be subject to deductions, reductions or non-payment. Use the example below as a guide when describing the issues.

A specific issue to be decided is whether your benefits were properly (reduced) (stopped) (subjected to deductions). This will depend upon whether (you failed to report earnings) (you are engaging in substantial gainful activity) (you had excess earnings) (your family's benefit amount exceeded the family maximum) (an offset against your disability benefits is applicable because of your worker's compensation benefits) (your spouse is receiving a government pension) (you were convicted of subversive activities) (you did not have a child in your care) (you rejected vocational rehabilitation services) (you rejected treatment for alcoholism or drug addiction) (the primary beneficiary was deported) (you are an inmate in a public institution).

INSURED STATUS OR QUARTERS OF COVERAGE ISSUES

When an individual's insured status or quarters of coverage are in dispute, state the issue as a specific issue. For example:

The specific issue to be determined is whether (you have) (the wage earner has) sufficient quarters of coverage to be (fully) (currently) insured.

PATERNITY ISSUES

Parent-child relationships are a key element in the receipt of many types of benefits. Specifically, the eligibility for mother's, father's, child's and parent's benefits depends upon establishing the parent-child relationship. When the parent-child relationship is in dispute, state the issue as a specific issue. For example:

The specific issue to be determined is whether you are the (child) (parent) of the wage earner. This will depend upon whether you meet the relationship requirements described in Social Security regulations 404.354 through 404.359, and whether you are dependent on the insured as described in Social Security regulations 404.360 through 404.365.

RETIREMENT TEST AND TITLE II OLD AGE BENEFITS ISSUES

When an individual's "retirement" is in dispute, state the issue(s) to be determined as a specific issue. For example:

The specific issue to be determined is whether you are "retired" for the purpose of your application for Old Age Insurance Benefits. In making this determination, we will consider the services you perform in your business, the value of these services, and whether you are compensated for your services.


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