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HALLEX I-2-901

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: Reopening and Revision

Chapter: I-2-900

June 30, 1994

Current through June 1997

I-2-901 ADMINISTRATIVE FINALITY--REOPENING AND REVISING DETERMINATIONS AND DECISIONS--GENERAL

Citations: > 20 CFR 404.987 - 404.989, 410.671 - 410.673, and 416.1487 - 416.1489 > 42 CFR 405.750, > 405.841, 473.48, 498.30 - 498.32 and 498.100 - 498.103

"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 determination or decision made at any step of the administrative review process becomes final and binding if the claimant does not appeal timely. If a claimant timely appeals an ALJ decision (i.e., requests review by the Appeals Council), the ALJ decision will become final and binding if the Appeals Council denies the request for review and:

- the claimant does not timely file a civil action, or

- the claimant timely files a civil action and a court affirms the ALJ decision.

Generally, if the Appeals Council grants a claimant's request for review of an ALJ decision, or reviews an ALJ decision on its own motion, the Appeals Council will vacate the ALJ decision and either remand the case to an ALJ for further action including a new hearing and decision or issue an Appeals Council decision. The Appeals Council's decision will become final and binding if the claimant does not timely file a civil action or the claimant timely files a civil action and a court affirms the Appeals Council's decision.

If an ALJ has jurisdiction to reopen and revise a determination or decision (See > I-2-910, Administrative Law Judge's Jurisdiction to Reopen and Revise a Determination or Decision.) and the conditions for reopening are met, the ALJ must reopen the determination or decision.

NOTE: In some circuits, circuit case law limits reopening. For example, in the First Circuit, the Appeals Council may not reopen a decision after the 60-day own motion period has expired, unless the claimant requests reopening (McCuin v. Bowen--Acquiescence Ruling 88-5(1)). In the Eleventh Circuit, only an ALJ may reopen an ALJ's decision (Butterworth v. Bowen--Acquiescence Ruling 87-2(11)). Every adjudicator must carefully review the OHA Circuit Court Case Reporter in HALLEX (Part 1 of Volume II) for information on current court imposed limits on reopening.

A claimant may explicitly request an ALJ to reopen and revise a final determination or ALJ decision, or may submit additional evidence or information which implies that the claimant is requesting reopening and revision of such determination or decision.

An ALJ may grant a claimant's request to reopen and revise a final determination or ALJ decision, or decide on his or her own initiative to reopen and revise such determination or decision.

If an ALJ receives a request to reopen a determination or decision, and the ALJ does not have jurisdiction to consider the request, the ALJ must refer the request to the component that has jurisdiction. For example, if an ALJ receives a request to reopen a reconsidered determination which was not appealed to the hearing level, and there is no subsequent claim pending before the ALJ, the ALJ must refer the request to the component that issued the reconsidered determination. (See > I-2-940, Reopening for Good Cause, for certain exceptions to this rule applicable to when a claimant is pro se and has or alleges a mental impairment.) Similarly, if an ALJ receives a request to reopen an Appeals Council decision, the ALJ must refer the request to the Appeals Council.

If an ALJ is issuing a decision on a current application, and the record shows that in connection with the current application the claimant specifically requested reopening and revision of an unfavorable determination or decision on a prior application, the ALJ must include in the decision a finding on the reopening and revision issue, and supporting rationale.

If an ALJ is issuing a decision on a current application, and the record shows that in connection with the current application the claimant did not specifically request reopening and revision of the prior determination or decision, but did allege an onset date of disability within the previously adjudicated period, the ALJ must consider the claimant's current application to be an implied request for reopening and revision of the determination or decision on the prior application. Under these circumstances, if the ALJ's decision on the current application is unfavorable, the ALJ will not discuss or make any finding on the issues of reopening and revising the unfavorable determination or decision on the prior application. However, if the ALJ's decision on the current application is favorable, the ALJ must include in the decision appropriate findings and rationale on the reopening and revision issues.



HALLEX I-2-910

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: Reopening and Revision

Chapter: I-2-900

June 30, 1994

Current through June 1997

I-2-910 ADMINISTRATIVE LAW JUDGE'S JURISDICTION TO REOPEN AND REVISE A DETERMINATION OR DECISION (REVISED 11/92)

A. Administrative Law Judge Jurisdiction

When a current application or request for reopening is properly before an Administrative Law Judge (ALJ), the ALJ has jurisdiction to consider the issue of reopening and revising a final determination or ALJ decision on a prior application under any of the following circumstances:

1. The claimant did not file a request for review by the Appeals Council;

2. The Appeals Council did not review the prior ALJ decision and issue an Appeals Council decision either on its own motion or after granting the claimant's request for review;

3. The claimant filed a request for review and the Appeals Council dismissed the request for a reason other than death of the claimant; or

4. The claimant filed a request for review, the Appeals Council denied the request, and the 60-day period for filing a civil action has expired.

If additional evidence is received in connection with a request for reopening, and the Appeals Council has jurisdiction to consider the reopening issue, forward the evidence to:

Office of Hearings and Appeals, SSA

Office of Appellate Operations

5107 Leesburg Pike

Falls Church, VA 22041-3255

If additional evidence is received in connection with a request for reopening, and neither the ALJ nor the Appeals Council have jurisdiction because a civil action is pending before a court, forward the evidence to:

Office of Hearings and Appeals, SSA

Office of Civil Actions

5107 Leesburg Pike

Falls Church, VA 22041-3200

(See > I-4-201, Supplemental Review of Pending Court Cases--General.)

NOTE 1: If the Appeals Council has denied a party's request for review of an ALJ decision (regardless of whether a Federal court has affirmed the ALJ decision), the ALJ cannot later reopen and revise the ALJ decision solely on the basis of the same evidence the Appeals Council considered when it denied the request for review. Such evidence would not be "new." However, if new and material evidence (See > I-2-940 C., New and Material Evidence.) is submitted with either a request for reopening or in connection with a new application and the other conditions for reopening exist, the ALJ must reopen the prior hearing decision.

B. ALJ Lacks Jurisdiction to Reopen

An ALJ does not have jurisdiction to reopen an Appeals Council decision. Therefore, if an ALJ believes that evidence submitted in connection with a current application establishes that the claimant was under a disability during a period previously adjudicated by an Appeals Council decision on a prior application, the ALJ must take the following actions:

1. If the time limit on reopening has expired and reopening is no longer possible:

- Issue a decision finding the claimant disabled as of whatever date the evidence establishes, but find entitlement based only on the current application.

- If the claimant explicitly requested reopening, explain in the decision why reopening is not possible. If the claimant did not explicitly request reopening, reopening by the Appeals Council is barred by the regulations and no useful purpose would be served by addressing the reopening issue in the decision on the current claim.

2. If the time limit on reopening has not expired:

- Issue a decision finding the claimant disabled as of the day after the date of the Appeals Council decision, and find entitlement based on the current application only.

- State in the decision that the Appeals Council decision on the prior application is final and binding.

- On the transmittal to the effectuating component, state that the Appeals Council has jurisdiction to consider the issue of reopening its decision on the prior application, and ask the effectuating component to forward the claim file to the Appeals Council when they complete their action.

- Send a memorandum to the Appeals Council requesting the Council to consider the issue of reopening its decision on the prior application. Attach copies of the ALJ decision and transmittal.



HALLEX I-2-915

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: Reopening and Revision

Chapter: I-2-900

June 30, 1994

Current through June 1997

I-2-915 APPEALS COUNCIL'S JURISDICTION TO REOPEN AND REVISE A DETERMINATION OR DECISION

When a case is properly before the Appeals Council, the Appeals Council has jurisdiction to consider the issue of reopening and revising a final determination or decision issued by the Appeals Council or an ALJ when:

1. a claimant filed a request for review with respect to the prior ALJ decision, but the Appeals Council dismissed the request for review because of the death of the claimant;

2. a claimant filed a request for review with respect to the prior ALJ decision, the Appeals Council denied the request for review, and the 60-day period for filing a civil action has not yet expired.

3. the Appeals Council previously advised the claimant of its refusal to reopen the determination or decision; or

4. the circumstances permit the Appeals Council to act more expeditiously.



HALLEX I-2-920

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: Reopening and Revision

Chapter: I-2-900

June 30, 1994

Current through June 1997

I-2-920 COMPUTING THE TIME PERIODS FOR REOPENING

A. Compute from the Date of the Initial Determination

Generally, in determining whether the conditions for reopening and revising a final determination or ALJ decision are met, the ALJ must compute the time elapsed between the date of the notice of the initial determination on the application on which the determination or decision was based, and the filing date of the current application or other communication in which the claimant requested reopening. The ALJ must determine, based on the elapsed time, which reopening criteria, if any, apply. (See > I-2-930, Reopening for Any Reason Within 12 Months; > I-2-940, Reopening for Good Cause; and > I-2-960, Reopening at Any Time.)

B. Limit on Reopening Prior Applications

When a current application is before the ALJ and the conditions for reopening exist, the ALJ must reopen the determination or ALJ decision made on the prior application. However, once a prior determination or decision has been reopened, the ALJ may not use the application date of the reopened determination or decision to compute the time period under which an even earlier final determination or decision may be reopened.

The time period for reopening the final determination or ALJ decision on the "even earlier application" is determined by the length of time elapsed from the date of the initial determination on the "even earlier application" to the date of filing of the current application or request for reopening, not to the date of filing of the prior application which is being reopened.

Example:

The claimant filed an application for disability insurance benefits (DIB) on December 13, 1981, alleging that he became disabled on November 4, 1980. The application was denied initially on February 12, 1982, and again upon reconsideration on April 12, 1982. The claimant did not appeal the reconsideration determination; therefore, the reconsideration determination dated April 12, 1982 became final and binding.

The claimant filed a second application for DIB on February 10, 1985, alleging that he had been disabled since November 4, 1980. This application was denied initially on April 15, 1985, and was denied upon reconsideration on June 13, 1985. The claimant did not appeal the reconsideration determination; therefore, the reconsideration determination dated June 13, 1985 became final and binding.

The claimant filed a third (current) application for DIB on September 23, 1988, again alleging that he had been disabled since November 4, 1980. In connection with the current application, he submits evidence, including evidence which was new and material with respect to the prior applications, which establishes that he has in fact been disabled since November 4, 1980. None of the "reopening at any time" criteria are met.

Because the current application of September 23, 1988 was filed within 4 years of April 15, 1985, the date of the notice of the initial determination on the second application, the ALJ (based on the new and material evidence) must reopen the final determination on the second application. However, the ALJ cannot reopen the final determination on the first application filed on December 13, 1981, because the current application filed on September 23, 1988 was not filed within four years of February 12, 1982, the date of the notice of the initial determination on the first application.

Although the ALJ finds an onset of November 4, 1980, the ALJ cannot reopen the determination on the first application even though the claimant's second application of February 10, 1985 (which resulted in the final determination of June 13, 1985 which the ALJ is reopening) was filed within 4 years of February 12, 1982, the date of the notice of the initial determination on the first application.

Therefore, the claimant is under a disability which began on November 4, 1980, and he is entitled to DIB based on his application filed on February 10, 1985. This means he is entitled to DIB commencing February 1984, twelve months immediately before the month in which the application was filed.



HALLEX I-2-930

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: Reopening and Revision

Chapter: I-2-900

June 30, 1994

Current through June 1997

I-2-930 REOPENING FOR ANY REASON WITHIN 12 MONTHS

An Administrative Law Judge (ALJ) has the authority to reopen an initial, revised or reconsidered determination, or a hearing decision or revised hearing decision under title II or title XVI of the Social Security Act for any reason within 12 months from the date of the notice of the initial determination (> 20 CFR 404.988 (a) and > 416.1488 (a)).

An ALJ has the authority to reopen an initial, revised or reconsidered determination, or a hearing decision or revised hearing decision under title XI or Parts A and B of title XVIII, for any reason within 12 months from the date of the notice of the initial or reconsidered determination.

The Health Care Financing Administration or the Office of the Inspector General, as appropriate, has authority to reopen an initial or reconsideration determination regarding participation in the Medicare Program (except in the case of a determination that an institution, agency or clinic qualifies as a provider of services, or that an institution qualifies to elect to claim payment for all emergency hospital services furnished in a calendar year), for any reason within 12 months from the date of the notice of the initial determination. An ALJ has the authority to reopen a hearing decision in such cases within 60 days from the date of the notice of the hearing decision.



HALLEX I-2-940

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: Reopening and Revision

Chapter: I-2-900

June 30, 1994

Current through June 1997

I-2-940 REOPENING FOR GOOD CAUSE (REVISED 11/93)

Citations: > 20 CFR 404.988 (b), > 404.989, 410.672 (b), 410.673, 416.1488 (b), and 416.1489 > 42 CFR 405.750 (b) (2), > 405.841 (b) and 473.48 (b)

A. Time Limitations for Reopening (See > I-2-920, Computing the Time Periods for Reopening.)

An administrative Law Judge (ALJ) has the authority to reopen a determination or hearing decision, which is otherwise final and binding, for good cause as follows:

- after the 12-month period for reopening for any reason but within 4 years from the date of the notice of the initial determination in a claim under title II;

- after 12 months but within 2 years from the date of the notice of the initial determination in a claim under title XVI; or

- after the 12-month period for reopening for any reason but within 4 years from the date of the notice of the initial determination in claims under title XI and Parts A and B of title XVIII.

B. Good Cause Defined

1. Title II, XI and Parts A and B of Title XVIII

An ALJ must find that good cause exists for reopening a determination or hearing decision under the following circumstances:

a. new and material evidence is furnished;

b. a clerical error in the computation or recomputation of benefits was made;

c. there is an error on the face of the evidence on which the determination or hearing decision is based; or

d. the prior determination became final without a hearing or decision before an ALJ, and there is prima facie evidence that the claimant, who was pro se when the prior application was adjudicated, lacked the mental competence to understand the right and obligation to pursue an administrative appeal. (See > I-2-440 A., General (Res Judicata).)

2. Title XVI

An ALJ must find that good cause exists for reopening a determination or hearing decision under the following circumstances:

a. new and material evidence is furnished;

b. a clerical error was made;

c. there is an error on the face of the evidence on which the determination or hearing decision is based; or

d. the prior determination became final without a hearing or decision before an ALJ, and there is prima facie evidence that the claimant, who was pro se when the prior application was adjudicated, lacked the mental competence to understand the right and obligation to pursue an administrative appeal. (See > I-2-440 A., (Res Judicata) General.)

C. New and Material Evidence

1. Definition

Generally, evidence is "new" when the adjudicator who made the prior determination or decision did not consider it. It is "material" when the new evidence, either by itself or when considered with the other evidence then before the adjudicator, would warrant a change in any finding pertinent to any matter at issue or in the ultimate decision (either favorable or unfavorable). If the new evidence does not warrant a change in any finding pertinent to any matter at issue or in the ultimate decision, the evidence is not both "new" and "material" and thus would not satisfy the regulatory standard for reopening.

Examples:

- New medical evidence shows that an originally favorable prognosis proved to be inaccurate, and that an allowance based on a prior application is warranted; e.g., the prior adjudicator believed that the claimant's broken hip would be healed within 12 months but later medical evidence shows that the broken hip had not healed sufficiently within 12 months to permit the claimant to return to substantial gainful activity.

- An ALJ found that the 30 year old claimant for disability insurance benefits was illiterate, unskilled, could no longer perform his heavy labor job due to his back impairment but had the residual functional capacity to perform light work. The ALJ issued a decision finding that pursuant to Rule 202.16, the claimant was not disabled. The ALJ's decision became final and binding upon the claimant's failure to appeal the hearing decision to the Appeals Council level. Two years later, the claimant requests the ALJ to reopen the hearing decision and submits new and material evidence which establishes that in fact the claimant was limited to sedentary work. Even though the claim will still be denied under Rule 201.23, if the time limit criteria are met, the ALJ must reopen the prior hearing decision, issue a revised hearing decision and provide the claimant with full appeal rights.


D. Request for Reopening After Expiration of Time to Reopen

If a claimant requests reopening after the specified time for reopening has expired, the regulations require the ALJ to deny the request for reopening. The ALJ must notify the claimant in writing of the denial and the rationale for it.

E. Change of Position

1. Definition

A change of position is a change of legal interpretation or administrative ruling on which a determination or decision was made. A change of position may result from such events as a change in a regulation, a decision of the United States Supreme Court, a court order in a class action case, or the issuance of a Social Security Ruling or a Social Security Acquiescence Ruling.

2. Effect of Change of Position

When there is a change of position, an ALJ may reopen and revise an initial determination under the 12-month rule only if the result will be favorable to the claimant. However, a change of position is not "good cause" to reopen a determination or decision under the 2- or 4-year rules. (See also > I-2-440 F., Effect of a Subsequent Change in Statute, Regulation, or Policy Interpretation on Applicability of Res Judicata.)

F. Effect of Change in Statute

If a statutory provision has changed, whether reopening is possible depends on the provisions of the amendment and its effective date.

G. Clerical Error

A clerical error is a mathematical error, misapplication of benefit tables, etc., which resulted in an incorrect payment of a monthly benefit or an incorrect lump-sum death payment. It ordinarily occurs in the computation or recomputation of benefits. (See > I-2-960 A. 8. and C., Reopening at Any Time.)

H. Error on the Face of the Evidence on Which the Determination or Hearing Decision Is Based

Error on the face of the evidence is an obvious error which reasonable minds would agree "directly caused" an incorrect determination or ALJ decision. (See > I-2-960 A. 8. and C., Reopening at Any Time.) The following are examples of error on the face of the evidence:

- Relying on the wrong person's medical report or earnings record caused the adjudicator to reach an incorrect determination or decision.

- In a title II case, onset of disability was found as of a date after the claimant last met the special earnings requirements.

- Benefits in a cessation case were terminated as of the month disability ceased, rather than as of the close of the second month following the month in which disability ceased.

- Evidence in the possession of the Social Security Administration at the time the determination or hearing decision was made clearly shows that the determination or hearing decision was incorrect.

Example:

While a claim was being processed, the claimant submitted to a Social Security field office (FO) a medical report which would have resulted in a different conclusion. However, the medical report was not associated with the claim file until after the determination or hearing decision became final.



HALLEX I-2-950

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: Reopening and Revision

Chapter: I-2-900

June 30, 1994

Current through June 1997

I-2-950 DILIGENT PURSUIT OF AN INVESTIGATION

A. Diligent Pursuit--General

Citations: > 20 CFR 404.991a, > 410.675a and 416.1491

An Administrative Law Judge (ALJ) may revise a final determination or ALJ decision after the time period for reopening expires if, before the time period expires, the ALJ or any other employee of the Social Security Administration (SSA) begins an investigation (i.e., begins gathering facts) into whether to revise such determination or decision, and diligently pursues the investigation to its conclusion. An ALJ or other SSA employee may begin such investigation on his or her own initiative or on a claimant's request.

B. Definition

"Diligent pursuit" of an investigation means that in light of the facts and circumstances of a particular case, the ALJ or other SSA employee undertook an investigation and carried out the necessary action as promptly as the circumstances permitted.

An ALJ will presume that "diligent pursuit" exists if the ALJ or another SSA employee completes an investigation into whether to revise a determination or decision, and the ALJ revises such determination or decision within 6 months from the date the investigation was begun.

C. ALJ's Revised Determination or Decision When Investigation Diligently Pursued to its Conclusion

If an ALJ or another SSA employee diligently pursued an investigation to its conclusion, the ALJ has the authority to revise the determination or decision. The revised determination or decision may be favorable or unfavorable to the claimant.

D. ALJ's Revised Determination or Decision When Investigation Not Diligently Pursued to its Conclusion

If an ALJ or another SSA employee did not diligently pursue an investigation to its conclusion, the ALJ has the authority to revise the determination or decision only if the revised determination or decision is favorable to the claimant.



HALLEX I-2-960

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: Reopening and Revision

Chapter: I-2-900

June 30, 1994

Current through June 1997

I-2-960 REOPENING AT ANY TIME

Citations: > 20 CFR 404.988, > 410.672, 416.1488 > 42 CFR 405.750(b)(3), > 473.48(b)

A. Title II Cases

An Administrative Law Judge (ALJ) has the authority to reopen a determination or hearing decision which is otherwise final at any time if:

1. the determination or hearing decision was obtained by fraud or similar fault; or

2. another person files a claim on the same earnings record and allowance of that claim adversely affects the earlier claim; or

3. a person previously determined to be dead, and on whose earnings record entitlement is based, is later found to be alive; or

4. the claim was denied because the claimant could not prove that the wage earner died, and death is later established by reason of an unexplained absence from his or her residence for a period of 7 years; or

5. the Railroad Retirement Board has awarded duplicate benefits on the same earnings record; or

6. the determination or hearing decision either:

- denies the person on whose earnings record the claim is based gratuitous wage credits for military or naval service because another Federal agency (other than the Department of Veterans Affairs) has erroneously certified that it has awarded benefits based on the service; or

- credits the earnings record of the person on which the claim is based with gratuitous wage credits and another Federal agency (other than the Department of Veterans Affairs) certifies that it has awarded benefits based on the same period of service for which the wage credits were granted; or

7. the claimant was denied for lack of insured status, but earnings for the appropriate period of time were later credited to the claimant's earnings record; or

8. the determination or hearing decision is fully or partially unfavorable, but contains a clerical error or an error on the face of the evidence which should be corrected for purposes of accuracy, even though the correction will not change the ultimate conclusion; or

9. a claimant is found entitled to monthly benefits or to a lump-sum death payment based on the earnings of a deceased person and it is later established that the claimant was convicted, by a court of competent jurisdiction, of a felony or an act in the nature of a felony for intentionally causing the deceased person's death; or

10. the determination or hearing decision either:

- denies the person on whose earnings record the claim is based deemed wages for internment during World War II because of an erroneous finding that a benefit based upon the internment has been determined by an agency of the United States to be payable under another federal law or system established by that agency; or

- awards the person on whose earnings record the claim is based deemed wages for internment during World War II and a benefit based upon the internment is determined by an agency of the United States to be payable under another federal law or under a system established by that agency; or

11. the determination or hearing decision is incorrect because:

- the claimant was convicted of a crime that affected his or her right to receive benefits or his or her entitlement to a period of disability; or

- the claimant's conviction of a crime that affected his or her right to receive benefits or his or her entitlement to a period of disability is overturned.

B. Title XVI Cases

An ALJ has the authority to reopen a determination or hearing decision which is otherwise final at any time when such determination or hearing decision was obtained by fraud or similar fault.

C. Title XI and Parts A and B of Title XVIII Cases

An ALJ has the authority to reopen a determination or hearing decision which is otherwise final at any time if:

1. the determination or hearing decision is unfavorable, in whole or in part, to the claimant and there was clerical error or error on the face of the evidence on which the determination or hearing decision is based; or

2. the determination or hearing decision was procured by fraud or similar fault of the beneficiary or some other person.



HALLEX I-2-970

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: Reopening and Revision

Chapter: I-2-900

June 30, 1994

Current through June 1997

I-2-970 WHEN ADDITIONAL EVIDENCE DOES NOT WARRANT REOPENING

If a claimant submits additional evidence after an Administrative Law Judge (ALJ) issues a decision, the ALJ must determine whether he or she has jurisdiction to reopen the decision. (See > I-2-910, Administrative Law Judge Jurisdiction to Reopen and Revise a Determination or Decision.)

If the ALJ has jurisdiction and the additional evidence does not warrant reopening the decision, the ALJ must notify the claimant and representative in writing. Such notice must clearly explain why the additional evidence does not warrant reopening.

1. If the claim file (CF) is in the HO, the HO staff must file the additional evidence and a copy of the ALJ's letter in the CF with a copy to the HO file.

2. If the CF is in another component, the HO staff must send the additional evidence and a copy of the ALJ's letter (using transmittal form HA-505) to the appropriate component for association with the CF and retain copies of the additional evidence and ALJ letter in the HO file.

NOTE: An ALJ's refusal to reopen and revise his or her decision is not subject to further review.



HALLEX I-2-980

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: Reopening and Revision

Chapter: I-2-900

June 30, 1994

Current through June 1997

I-2-980 REOPENING AND REVISION IS WARRANTED--THE REVISED DECISION

Citations: > 20 CFR 404.981, > 404.992 - 404.993, 410.666, 410.676 - 410.677, 416.1481 and 416.1492 - 416.1493

A. Notice Requirements

1. If, in connection with a current application, an ALJ decides that the conditions exist for reopening and revising an unfavorable determination or ALJ decision on a prior application, and the revised decision will be favorable to the claimant (fully or partially), the ALJ may proceed with the reopening and revision without advance notice to the claimant. For information regarding decision content in such cases, refer to section B.1. below.

2. If there is no current claim and an ALJ decides that the conditions exist for reopening and revising an unfavorable ALJ decision, and the revised decision will be favorable to the claimant (fully or partially), the ALJ may proceed with the reopening and revision without advance notice to the claimant. For information regarding decision content in such cases, refer to section B.2. below.

3. If there is no current claim and an ALJ decides that the conditions exist for reopening and revising a fully or partially favorable ALJ decision, and the revised decision will be less favorable to the claimant, the ALJ must notify the claimant in advance of the planned reopening action and of the decision the ALJ is prepared to issue, and provide the claimant an opportunity to appear at a hearing on the reopening issue and the proposed decision. (See B.2. below.)

B. Reopened or Revised Decision--Content

1. If a current application is before an ALJ, and the ALJ is reopening an unfavorable determination or ALJ decision on a prior application to issue a fully or partially favorable revised decision on the prior application, the ALJ's decision must show the date of the reopened determination or ALJ decision, the specific parts of the determination or decision being revised, a summary of any new and material evidence, a complete rationale to explain and support the revisions, appropriate findings, and an appropriate decisional paragraph.

2. If there is no current application, and an ALJ is reopening an ALJ decision and is issuing a revised decision, the revised decision must contain the following information:

a. The date of the prior decision and the part(s) of the decision being revised.

b. The reasons for the revision.

c. Reference to the appropriate law and regulations.

d. A summary of the new and material evidence.

e. A complete rationale.

f. Revised findings and decisional paragraph(s), as appropriate.

NOTE: Add the word "REVISED" to the heading of the decision.

C. Effect of Revised Decision

A revised decision is binding unless:

1. a request for review is filed and the Appeals Council reviews the revised decision; or

2. the Appeals Council reviews the revised decision on its own motion; or

3. the revised decision is further revised by an ALJ.


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