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HALLEX I-3-900

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-900 TABLE OF CONTENTS

> I-3-901 Administrative Finality--Reopening and Revising Determinations and Decisions

> I-3-902 Computing the Time Period for Reopening

> I-3-903 Reopening for Any Reason Within 12 Months

> I-3-904 Reopening for Good Cause

> I-3-905 Diligent Pursuit

> I-3-906 Reopening at Any Time

> I-3-907 Administrative Law Judge's Jurisdiction to Reopen and Revise a Determination or Decision

> I-3-908 Appeals Council's Jurisdiction to Reopen and Revise a Determination or Decision

> I-3-910 Protest Cases

> I-3-920 Receipt of Material Constituting a Request for Reopening

> I-3-921 Forwarding or Returning Material to ALJ to Consider Reopening

> I-3-930 Procedure When the Appeals Council Considers Reopening

> I-3-931 Reopening and Revising Prior Decision Before Forwarding Current Decision for Effectuation

> I-3-932 Death of Claimant Shortly After Unfavorable Disability Decision Issued

> I-3-933 Reopening and Revising Prior Favorable Decision

> I-3-934 Notice of Proposed Revision of Prior Decision

> I-3-935 Notice of Proposed Revision in Title XVI Cases When Claimant Is in Payment Status

> I-3-936 Actions of Appeals Council After Notifying Claimant of Proposed Revision of Prior Decision

> I-3-940 Post-AC Action Correspondence

> I-3-950 Control of Potential Court Cases

> I-3-960 Requests for Extensions of Time to File Civil Action



HALLEX I-3-901

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-901 ADMINISTRATIVE FINALITY--REOPENING AND REVISING DETERMINATIONS AND DECISIONS

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

A determination or decision becomes "final and binding" if the claimant does not timely appeal. The regulations define certain criteria for reopening a determination or decision after it has become "final and binding." Thus, adjudicators may reopen determinations and decisions under certain circumstances and within certain prescribed time periods.

A claimant may ask the Appeals Council to reopen a final determination or decision by submitting additional information or evidence or by otherwise requesting reopening. The regulations at > 20 CFR 404.989 and 416.1489 specify when we will find that there is good cause to reopen a determination or decision.

The Appeals Council may reopen a determination or decision for any reason within 12 months of the date of notice of the initial determination and for good cause within 2 years in SSI cases or 4 years in title II cases. Under certain conditions, the Appeals Council may reopen a determination or decision at any time. The following sections describe how to compute the time periods within which reopening is permitted and the conditions and time limitations for reopening.

NOTE: The Appeals Council may review cases selected under the unappealed review process only under the own motion authority contained in > 20 CFR 404.969/416.1469. These provisions permit review only if action is taken within 60 days from the date of the ALJ's decision. The Council will not use the reopening provisions of the regulations in unappealed review cases when the 60-day own motion period has expired unless a clear factual error exists, such as the lack of insured status or work activity after onset.



HALLEX I-3-902

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-902 COMPUTING THE TIME PERIODS FOR REOPENING

A. Compute from the Date of the Initial Determination

To determine whether the Appeals Council can reopen a determination or decision, compute the time elapsed between the date of the initial determination on the prior application and the filing date of the current application or the date of receipt of the letter, etc., in which the claimant requested reopening. These dates determine whether or not reopening is permissible and if so, under what criteria. The criteria for reopening are discussed in sections > I-3-903 and > I-3-904.

B. "Domino" Theory not Applicable under the Reopening and Revision Regulations

If a current application is pending before the Appeals Council and the conditions for reopening exist, the Council will reopen the determination or decision made on the prior application. However, the Appeals Council will not apply a "domino" theory to reopen a determination or decision made on an even earlier application if reopening criteria for the pertinent time period between the date of notice of the initial determination on the "even earlier application" and the filing date of the claimant's current application or written request are not met.

The criteria for reopening the final determination on the "even earlier application" are 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.



HALLEX I-3-903

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-903 REOPENING FOR ANY REASON WITHIN 12 MONTHS (REVISED 11/93)

The Appeals Council may reopen an initial, revised, or reconsidered determination or a decision or revised decision under title II, title IV (Black Lung Benefits), or title XVI for any reason within 12 months from the date of the notice of the initial determination. However, see section > I-3-904 E. 2.

The Appeals Council may reopen an initial, revised, or reconsidered determination or a decision or revised decision under title XI or Part A or B of title XVIII for any reason within 12 months from the date of the notice of the initial or reconsidered determination.

In the case of a determination regarding participation in the Medicare program (42 CFR Part 498), the following rule applies:

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, the Health Care Financing Administration or the Office of the Inspector General, as appropriate, may reopen an initial or reconsidered determination for any reason within 12 months from the date of the notice of the initial determination. The Appeals Council may reopen an Appeals Council decision in these cases (Part 498) within 60 days from the date of the notice of the decision.



HALLEX I-3-904

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-904 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) and 473.48(b)

A. Time Limitations for Reopening

The Appeals Council may reopen a determination or decision, which is otherwise final, for good cause as follows:

within 4 years from the date of the notice of the initial determination in a claim under title II;

within 2 years from the date of the notice of the initial determination in a claim under title XVI; or

after 12 months 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, Title XI and Parts A and B of Title XVIII

Good Cause for reopening a determination or decision exists under the following circumstances:

a. new and material evidence is furnished;

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

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

2. Title XVI

Good cause for reopening a determination or decision exists under the following circumstances:

a. new and material evidence is furnished;

b. a clerical error was made; or

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

C. New and Material Evidence

1. Definition

See > I-3-306 A. for definition and general discussion of new and material evidence

Examples:

New medical evidence shows that the claimant's impairment met an impairment listed in Appendix 1, Subpart P, during the previously adjudicated period and that an allowance based on the prior application is warranted.

New medical evidence shows that the original medical prognosis did not prove to be accurate 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's return to substantial gainful activity.

2. Effect of New and Material Evidence

It may not always warrant a different conclusion.

It amy produce a significant change in a factor of entitlement which warrants a revision of a prior unfavorable determination or decision, but does not change the ultimate unfavorable determination or decision.

Example:

The Appeals Council fond 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 Council issued a decision finding that pursuant to Rule 202.16, the claimant was not disabled. The Appeals Council's decision became final and binding upon the claimant's failure to commence a civil action. Two years later, the claimant requests the Appeals Council to reopen its decision and submits new and material evidence which established 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 Council must reopen its prior decision, issue a revised decision and provide the claimant with court rights.

D. New and Material Evidence is Submitted after Expiration of Time to Reopen

If the claimant submits new and material evidence after the prescribed time for reopening has expired and the evidence warrants an allowance during the previously adjudicated period, the Appeals Council may establish the onset date as shown by the evidence, but can find entitlement to benefits or a period of disability on the basis of a current application only.

E. Effect of "Change of Position"

1. Definition

Change of Position: A "change of position" is a change of legal interpretation or administrative ruling on which a determination or decision was made.

2. Effect of Change of Position

A change of position is not "good cause" to reopen a determination or decision under the 2- or 4-year rules. Although a change of position may be a basis for reopening within 12 months of the date of the initial determination, such reopening is appropriate only if the result would be favorable to the claimant.


F. Effect of Change in Statutory Provision

If a statute has been amended, any reopening depends on the provisions of the amendment itself. The amendment will provide the effective date of the change and, thus, indicate its effect on any prior determinations or decisions.

G. Clerical Error

1. Definition

Clerical Error: A clerical error is a mathematical error or 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.

2. Time Frames for Reopening for Clerical Error

a. Title II, title XI, and Parts A and B of title XVIII: To revise for clerical error, the Appeals Council may reopen a determination or decision which is otherwise final within 4 years from the date of the notice of the initial determination; however, if a determination or decision was fully or partially unfavorable to the claimant due to a clerical error, see section > I-3-906, Reopening at Any Time.

b. Title XVI: To revise for clerical error, the Appeals Council may reopen a determination or decision which is otherwise final within 2 years from the date of the notice of the initial determination.

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

1. Definition

Error on the face of the evidence: In general, it is the type of error which clearly caused an incorrect determination or decision to be made. The following are examples of "error on the face of the evidence":

Another claimant's medical report was in the claim file and the adjudicator relied on that report in making an incorrect determination or decision.

In a title II case, the adjudicator relied on another claimant's earnings record.

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 being terminated 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 decision was made clearly shows that the determination or decision was incorrect.

Example:

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

2. Time Frames for Reopening for Error on the Face of the Evidence

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

Within 4 years from the date of the notice of the initial determination, the Appeals Council may reopen an otherwise final determination or decision because of error on the face of the evidence on which the determination or decision is based. However, if the determination or decision was fully or partially unfavorable to the claimant, see section > I-3-906.

b. Title XVI

The Appeals Council may reopen an otherwise final determination or decision because of error on the face of the evidence on which the determination or decision is based, within 2 years from the date of the notice of the initial determination.



HALLEX I-3-905

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-905 DILIGENT PURSUIT

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

The Appeals Council may revise a determination or decision after the applicable time period specified in section > I-3-903 or > I-3-904 expires if the Social Security Administration (SSA) begins an investigation into whether to revise the determination or decision before the applicable time period expires. SSA may begin the investigation either based on a request by the claimant or by an SSA action. The investigation is a process of gathering facts, after a determination or decision has been reopened, to determine if a revision of the determination or decision is appropriate.

A. Definition

Diligently pursued: Diligently pursued means that in light of the facts and circumstances of a particular case, the necessary action was undertaken and carried out as promptly as the circumstances permitted. Diligent pursuit will be presumed to have been met if SSA concludes the investigation and, if necessary, revises the determination or decision within 6 months from the date the investigation was begun.

B. Investigation Diligently Pursued to its Conclusion

If SSA has diligently pursued the investigation to its conclusion, the Appeals Council may revise the determination or decision. The revision may be favorable or unfavorable to the claimant.

C. Investigation not Diligently Pursued to its Conclusion

If SSA has not diligently pursued the investigation to its conclusion, the Appeals Council will only revise the determination or decision if a revision favorable to the claimant is warranted. The Appeals Council will not revise the determination or decision if it will be unfavorable to the claimant.



HALLEX I-3-906

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-906 REOPENING AT ANY TIME

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

A. Title II

Under the regulations cited above, the Appeals Council may reopen a determination or decision, which is otherwise final, at any time if:

1. the determination or 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 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 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 decision is fully or partially unfavorable, but only to correct a clerical error or an error that appears on the face of the evidence (see section > I-3-904 above); 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 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 under a 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 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

The Appeals Council may reopen a determination or decision which is otherwise final, at any time when such determination or decision was obtained by fraud or similar fault.

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

The Appeals Council may reopen a determination or decision, which is otherwise final, at any time if:

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

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



HALLEX I-3-907

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-907 ADMINISTRATIVE LAW JUDGE'S JURISDICTION TO REOPEN AND REVISE A DETERMINATION OR DECISION

A. General

When a case is properly before an ALJ in connection with a current application or otherwise, the ALJ has jurisdiction to reopen and revise a prior "final and binding" determination. When a case is properly before an ALJ and the conditions exist for reopening a prior ALJ's decision, the ALJ may reopen and revise the ALJ decision on his or her own motion or upon request of a party to the hearing.

B. When an ALJ may Reopen

The ALJ has jurisdiction to reopen a prior ALJ decision (his or her own decision or another ALJ's decision) under any of the following circumstances:

no party filed a request for review with respect to the prior ALJ decision; or

the Appeals Council did not review the prior ALJ decision on its own motion; or

a party filed a request for review with respect to the prior ALJ decision, but the Appeals Council dismissed the request for review for a reason other than the death of the claimant; or

a party filed a request for review with respect to the prior ALJ decision, but the Appeals Council denied the request for review and the prior ALJ decision became "final and binding."

NOTE: If the Appeals Council denied the request for review and the claimant submits additional evidence to the ALJ within the 60-day period for filing a civil action, the ALJ must refer the material to the Appeals Council for its consideration.

Usually additional evidence is before the ALJ in connection with a second application. Because the 60-day period for filing a civil action following the Appeals Council's denial of the request for review on the first application would have expired in this case, the ALJ has jurisdiction to reopen and revise the prior ALJ decision.

The ALJ cannot reopen and revise a prior ALJ decision solely on the basis of the evidence which the Appeals Council had considered at the time it denied the request for review of the ALJ decision on the first application.

A Federal court's affirmation of the prior decision does not affect the ALJ's jurisdiction to reopen and revise the prior decision.

C. ALJ Lacks Jurisdiction to Reopen

Although an ALJ may not have jurisdiction to reopen a prior decision in order to find entitlement on a prior application, the ALJ may, on the basis of new and material evidence, make new findings of fact with respect to the previously adjudicated period and find entitlement on the basis of the current application.



HALLEX I-3-908

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-908 APPEALS COUNCIL'S JURISDICTION TO REOPEN AND REVISE A DETERMINATION OR DECISION

When a case is properly before the Appeals Council and the conditions for reopening exist, the Appeals Council has jurisdiction to reopen any decision issued by the Appeals Council or an ALJ.

The Appeals Council has jurisdiction to reopen the following:

any Appeals Council decision; or

any ALJ decision, if

--the case is properly before the Appeals Council on the basis of a subsequent application, own motion review, or otherwise; or

--a party 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; or

--a party filed a request for review with respect to the prior ALJ decision, the Appeals Council denied the request for review, and the Council is now considering evidence or other material (constituting a request for reopening and revision) submitted by the claimant or on the claimant's behalf within 60 days after the Appeals Council denied the request for review.

any initial determination, or reconsidered determination, if the case is properly before the Appeals Council on the basis of a subsequent application, own motion review, or otherwise.



HALLEX I-3-910

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-910 PROTEST CASES (REVISED 06/94)

A. General

As noted in section > I-3-140, if effectuating components believe a decision is contrary to the law, regulations, or rulings, they may forward an ALJ or Appeals Council decision to the Deputy Director for Operations, OAO, for further consideration. Effectuating components may also forward cases if they receive additional evidence which requires further action on a case. The Deputy Director's office controls and distributes these cases to the appropriate OAO branch.

B. Restrictions on Reopening

Reopening is restricted as follows:

In the First Circuit, pursuant to McCuin v. Bowen, the Appeals Council may not reopen a decision after the 60-day own motion period has expired, unless the claimant requests reopening.

In the Eleventh Circuit, pursuant to Butterworth v. Bowen, only an ALJ may reopen an ALJ's decision.

When a protest is received in a First or Eleventh Circuit case after the 60-day own motion period has expired, return the case to the protesting component with a brief memorandum stating that the Appeals Council cannot consider the reopening issue pursuant to McCuin or Butterworth, as appropriate.

C. Consideration of Reopening Current Decision

If after review of the record and a complete tape audit, a recommendation for reopening by the Appeals Council is appropriate, the analyst must prepare for the Appeals Council's consideration Forms HA-52 and HA-52A (Disability Case Fact Sheet and Disability Case Analysis and Recommendation) and a reopening notice to the claimant/representative advising them of the reasons for reopening and of their rights.

If the Appeals Council assumes jurisdiction, the Council will proffer the protest memorandum to the claimant and representative (see > I-3-140, Workup of Case by Analyst--Bureau Protest Cases Consideration of Own Motion Review, and > I-3-654, Proffer of Protest Memorandum).

D. Reopening Current Decision not Warranted

If after review of the record and a complete tape audit, a recommendation for reopening by the Appeals Council is not appropriate, the analyst must prepare for the Appeals Council's consideration Forms HA-52 and HA-52A (Disability Case Fact Sheet and Disability Case Analysis and Recommendation) and a draft response to the protesting component for the signature of the AAJ.

E. Protest Requests Reopening a Prior Determination or Decision

When the protest memorandum asks the Appeals Council to consider reopening a prior determination or decision, the analyst will review the case to the extent necessary to determine that reopening is permitted under the rules of administrative finality and:

1. if the prior decision was issued by the Appeals Council, prepare an appropriate recommendation for Council action;

2. if the prior decision was issued by an ALJ, or an initial or reconsidered determination is to be reopened, prepare an appropriate referral to the ALJ who issued the current hearing decision on the case. The Appeals Council does not take jurisdiction in these cases.

The referral will advise the ALJ to forward the file to the effectuating component if the ALJ reopens the prior decision or determination, or to return the file to OAO if the ALJ does not reopen.

F. Protest Replies

See section > I-3-140 F. for information regarding protest replies.



HALLEX I-3-920

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-920 RECEIPT OF MATERIAL CONSTITUTING A REQUEST FOR REOPENING

Upon receipt in the Docket and Files Branch (DFB) of material (e.g., a letter, medical report, or other document) constituting a request to reopen an ALJ or Appeals Council decision, DFB will forward the material and the claim file to the appropriate OAO branch for necessary action.

If the ALJ has jurisdiction to consider the reopening question and the material constituting a request to reopen the hearing decision was sent directly to OHA Headquarters, the analyst will forward the material to the ALJ to consider the reopening question.

If the ALJ had initially received the material and has jurisdiction to consider the reopening question but had erroneously forwarded the material to OHA Headquarters, the analyst will return the material to the ALJ to consider the reopening question.

Section > I-3-921 contains the guides for completing the overprinted Form HA-505, Transmittal by Office of Hearings and Appeals, used to forward or return material to the ALJ to consider the reopening question.

If the ALJ (1) construed the material as being a request for review, (2) prepared a Form HA-520 (Request for Review), and (3) forwarded the material to OHA Headquarters, the Appeals Council will consider the request for review (and request for reopening).



HALLEX I-3-921

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-921 FORWARDING OR RETURNING MATERIAL TO AN ALJ TO CONSIDER REOPENING

An analyst must use the appropriate overprinted form HA-505 to forward material or, when the material had been improperly forwarded by the ALJ to OHA Headquarters, return material to an ALJ to consider the question of reopening. If the claim file is not already in OHA, it need not be obtained. The ALJ will determine whether to obtain the file.

In completing the form HA-505, show the name and location of the ALJ to whom the material is being sent, and check the appropriate block or blocks to indicate whether the claim file is being sent. Check the block marked EVIDENCE, if appropriate, and/or OTHER and identify the material being forwarded. Prepare a copy of the form HA-505 for the appeals file, if any.



HALLEX I-3-930

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-930 PROCEDURE WHEN THE APPEALS COUNCIL CONSIDERS REOPENING

When the Appeals Council is to consider a request for reopening, the analyst must review the material to see whether reopening and revision are warranted. The analyst must request the claim file and/or appeals file if not already on hand. The analyst will take one of the following actions:

1. If further development is needed to determine whether reopening and revision are warranted, the analyst will recommend such development to the "A" and "B" AAJs.

2. If the analyst believes that reopening and revision are warranted, the analyst will prepare an appropriate recommendation and draft decision, etc.

When forwarding a reopening recommendation to the Appeals Council, the analyst must clearly show on the route slip the date by which reopening must be initiated.

3. If the analyst believes that reopening and revision are not warranted and the material was submitted to OHA Headquarters by the claimant (or representative), the analyst will prepare a letter to the claimant (with copy to the representative, if any) over the signature of the "A" AAJ responding to any questions contained in the correspondence and explaining why the additional material does not warrant a change in the prior decision (see sample paragraphs below). The letter must be prepared in final and routed for review to the "A" AAJ. Upon approval, the "A" AAJ's appeals technician will release it. The analyst must prepare a similar letter to the claimant if the material was submitted by some other source and the claimant was aware of its submission. If the claimant was not aware of its submission, the analyst will not prepare a letter to the claimant but, instead, will prepare a memorandum for the file (form HA-521) documenting that the material submitted does not warrant reopening and revision. The files must be routed to the "A" AAJ for approval.

Use the following (or similar) language in the letter sent to the claimant (and the representative, if any) when reopening and revision is not warranted:

a. "The Appeals Council has carefully studied the medical report of October 1, 1988, signed by Dr. Jay. The information contained in this report is essentially the same as that appearing in an earlier report by Dr. Kay, which is already a part of the record in your case. For this reason the additional evidence does not warrant a change in the (Appeals Council's) decision of August 4, 1988, which stands as the final decision of the Secretary."

b. "The Appeals Council has carefully studied the report of your recent hospitalization from June 15 to June 21, 1988. You had requested the Mayo Clinic to submit the report in support of your claim for disability benefits. The evidence was not previously a part of the record in your case and shows that you have an arthritic impairment. However, the record as supplemented by this report does not show that this impairment was present on or before March 31, 1985, when you last met the special earnings requirement of the law. Therefore, the hospital report does not warrant a change in the (Appeals Council's) decision of April 25, 1988, which stands as the final decision of the Secretary."



HALLEX I-3-931

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-931 REOPENING AND REVISING PRIOR DECISION BEFORE FORWARDING CURRENT DECISION FOR EFFECTUATION

An analyst may review a favorable hearing decision in accordance with procedures for review of unappealed cases before sending it to the appropriate component for effectuation. If the analyst believes that the regulations warrant reopening and revising a prior hearing decision but such action had not been taken, he or she must take one of the following actions:

1. ALJ Had Jurisdiction to Reopen Prior Hearing Decision

If the ALJ had jurisdiction to reopen and revise the prior decision but did not consider doing so, the analyst must prepare a memorandum to refer the case to the ALJ for further consideration.

2. Appeals Council Had Sole Jurisdiction to Reopen the Prior Decision

If the Appeals Council had sole jurisdiction to reopen the prior decision, the analyst must recommend that the Council review the decision on its own motion for the purpose of reopening and revising the prior decision.

3. Request for Review Filed

If reopening and revision of a prior hearing decision were warranted and a request for review is filed, the analyst will recommend granting the request for review for the purpose of reopening and revising the prior decision.



HALLEX I-3-932

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-932 DEATH OF CLAIMANT SHORTLY AFTER UNFAVORABLE DISABILITY DECISION ISSUED

If the Appeals Council issued an unfavorable disability decision or denied review of an ALJ's unfavorable disability decision and learns of the claimant's death afterward, an analyst must determine whether we need further information regarding possible reopening and revising the decision.

Factors to be considered as to whether development needs to be undertaken include:

1. the date the claimant last had insured status for disability purposes,

2. the length of time between the date of the latest pertinent medical evidence of record and the date of death,

3. whether the death resulted from the impairment(s) previously considered, and

4. whether the cause of death, if known, requires a reevaluation of the medical reports already of record.



HALLEX I-3-933

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-933 REOPENING AND REVISING PRIOR FAVORABLE DETERMINATION OR DECISION

Reopening is restricted as follows:

In the First Circuit, pursuant to McCuin v. Bowen, the Appeals Council may not reopen a decision after the 60-day own motion period has expired, unless the claimant requests reopening.

In the Eleventh Circuit, pursuant to Butterworth v. Bowen, only an ALJ may reopen an ALJ's decision.

In other situations, reopening and revision of a prior favorable determination or decision may be warranted when the Appeals Council reaches a conclusion on a current claim which adversely affects a claimant's entitlement, earnings record, insured status, etc.

For example, the Appeals Council may find that the claimant does not have earnings from self-employment for deduction purposes, and that, furthermore, they are not earnings for entitlement purposes. In this event, the prior award must be reopened and revised to disallow the claim or to reduce the amount of monthly benefits, whichever is appropriate.



HALLEX I-3-934

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-934 NOTICE OF PROPOSED REVISION OF PRIOR DECISION

When the Appeals Council proposes to revise a prior decision of an ALJ, it may review the decision on its own motion if the period for such review has not expired (> 20 CFR 404.969 and 416.1469). When time for own motion review has not expired, the Council will assume jurisdiction under its own motion authority and the notices appearing in section 6-30-20 ff. apply.

When the period for own motion review has expired, the Council may reopen a prior ALJ or Appeals Council decision under the rules of administrative finality (> 20 CFR 404.987 and 416.1487 ff.). See the Note to section > I-3-901. The regulations require prior notice of revision, unless the proposed revision is fully favorable to the claimant.

When the Appeals Council proposes to revise a prior decision under the rules of administrative finality and the proposed revision is based on additional evidence, the regulations require not only that the claimant be given notice of the proposed revision but also the opportunity for a hearing. If the claimant waives the right to a hearing, the Council may proceed with its proposed action. When the proposed revision is based on the same evidence, the regulations do not require that the notice give the claimant the right to a hearing. If the proposed revision is fully favorable, the Council may issue the decision without notifying the claimant because such notice would serve no useful purpose. If the proposed revision is not fully favorable, the notice must give the claimant the following information:

1. The authority for the action, i.e., reopening under the rules of administrative finality;

2. The nature of, and rationale for, the proposed revision;

3. Copies of any additional evidence, unless it was submitted by or on behalf of the claimant or the proposed revision is based on evidence which was either before the ALJ or the Appeals Council at the time the prior decision was made. Note that a protest memorandum from another SSA component objecting to an ALJ's decision is not considered "new and material" evidence; however, the claimant must be afforded the right to examine and comment upon it;

4. Opportunity to exercise the right to request a hearing when reopening and revision under the rules of administrative finality is proposed and new and material evidence is involved or the claimant is a title XVI claimant in payment status;

5. Opportunity to submit additional evidence or further written statement even if the claimant waives the right to a hearing;

6. A statement that if the claimant does not wish a hearing or appearance, as appropriate, and has nothing further to submit, the Appeals Council will then proceed with its action.

For guideline language refer to reopening notice shells in 6-30-30 to 6-30-33 of the Appeals Text Guide. Modify the language depending on the type of claim involved and the individual circumstances of the case.



HALLEX I-3-935

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-935 NOTICE OF PROPOSED REVISION IN TITLE XVI CASES WHEN CLAIMANT IS IN PAYMENT STATUS

Notice of a proposed revision of a title XVI decision after it has been effectuated is not required when the revision would be fully favorable to the claimant because such notice would serve no useful purpose. However, when the revision would not be fully favorable, notice of a proposed revision is required, in accordance with the decision in Goldberg v. Kelly, whether the revision would be based on the same or additional evidence (> 20 CFR 416.1336). In addition, the individual must be afforded a right to request a hearing.

The content of the notice will parallel the contents described above. However, the notice must further advise the individual that if a hearing is requested within 10 days, payments will be continued until a hearing decision is rendered. If no hearing is requested, payments will be continued until the Appeals Council issues a decision. Any payments made for a period of time that the individual is found to be ineligible constitute an overpayment. Therefore, to avoid an overpayment, the individual may waive continuation of payment, or ask that the payments be continued at a reduced rate, after having received a full explanation of his or her rights. See 6-30-39, SP 30 for guideline language to use in this type of notice.



HALLEX I-3-936

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-936 ACTIONS OF APPEALS COUNCIL AFTER NOTIFYING CLAIMANT OF PROPOSED REVISION OF PRIOR DECISION

A. Proposed Action Not Based On Additional Evidence

In title II cases, title XVI cases in which the claimant is not in SSI payment status, and title XVIII cases, the claimant may reply that he or she wishes to submit something additional and/or appear before the Appeals Council. When nothing further is to be submitted, or additional material has been received, and an appearance has been completed, has not been sought, or has been denied, the Council may proceed to its decision. See below when the claimant is a title XVI claimant in payment status.

B. Proposed Action Based on Additional Evidence or Claimant is in Title XVI Payment Status

In title II cases and title XVIII cases, when the proposed revision is based on new and material evidence, the claimant has a right to a hearing.

In addition, in a title XVI case with continuing payments, the claimant must be afforded the right to a hearing, even though no new and material evidence is submitted.

When a hearing is requested, the case must be remanded to an ALJ. When the claimant waives the right to a hearing, but the Appeals Council believes that additional evidence should be obtained to complete the record, the case must also be remanded.

When the Appeals Council finds that the record is complete and the claimant has waived the right to a hearing, the Council may proceed to issue a decision.



HALLEX I-3-940

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-940 POST-AC ACTION CORRESPONDENCE

The chart in 6-90-40 of the Appeals Text Guide provides guidance concerning the disposition of correspondence and/or evidence received (or considered) after the Appeals Council denies a request for review, issues a decision or reviews a case on its own motion. Sample letters and the Appeals Text Guide references are as follows:

6-90-41 Evidence Submitted in Connection with R/R, Received (or Associated) After Denial Letter Issued

6-90-42 Request for Reopening--with Evidence and/or Substantive Contentions

6-90-43 Correspondence and/or Evidence Received After Expiration of Civil Action Period (No Specific Request for Reopening or Extension of Time to File Civil Action)--AC Decision Involved

6-90-44 Correspondence, Evidence and/or Legal Arguments Received After Expiration of Civil Action Period (No Specific Request for Reopening or Extension of Time to File Civil Action)--Denial of R/R of ALJ's Decision Involved

6-90-45 Second HA-520--No Additional Evidence

6-90-46 Unappealed Review Case--HA-520 Received After Own Motion Taken



HALLEX I-3-950

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-950 CONTROL OF POTENTIAL COURT CASES

Under the law and regulations, a party who disagrees with an Appeals Council decision, or with the ALJ's decision if the request for review is denied, may obtain a review of the decision by commencing a civil action in a Federal district court within 60 days after the claimant receives notice of the Council's action, or within such further time as the Council may allow (> 20 CFR 404.981, 404.982, 416.1481, 416.1482, and sections 205(g) and 1631(c)(3) of the Social Security Act). The Council's notice advises the parties that the Council's action is presumed to be received within five days after the date of the notice unless a reasonable showing is otherwise made.

After the Appeals Council issues an unfavorable decision or denies or dismisses a request for review, the claim file is retained in the OAO branch mini-docket for 120 days (180 days for claimants residing in Puerto Rico). If a civil action is filed, the claim file can be quickly retrieved, thereby enabling the Secretary to file a timely answer to the complaint. Although the regulations do not provide a right to court review with respect to Appeals Council dismissals or denials of requests for review of ALJ dismissals, the Secretary must, nevertheless, respond to the complaint if a civil action is filed. Therefore, claim files with these actions are also held.

To identify clearly all potential court cases, the appeals technician will attach a Potential Court Case flag (form SSA-28) to each claim file when the Appeals Council denies or dismisses a request for review or issues a denial decision. The appeals technician will insert a release date on the form for 120 days after the Council's action (180 days after the Council's action for claimants residing in Puerto Rico).

Docket and Files Branch must refer requests for release of the claim file outside Central Office during the 120 (or 180) day holding period for civil actions to the appropriate OAO branch. If the branch releases a claim file outside OHA Headquarters during the holding period, the branch must carefully document the location of the folder, including the name and phone number of the individual to whom it was sent, so the file can be retrieved quickly in the event the claimant files a civil action.



HALLEX I-3-960

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Post-Adjudicative Actions

Chapter: I-3-900

June 30, 1994

Current through June 1997

I-3-960 REQUESTS FOR EXTENSIONS OF TIME TO FILE CIVIL ACTION (REVISED 11/93)

A. The Appeals Council ordinarily grants extensions of time for a period of 30 days. The Appeals Council may, at its discretion, decide to grant more or less time depending on the circumstances in the individual case.

B. If the claimant or representative gives no reason or an insufficient reason for requesting an extension of time, the Appeals Council will deny the request, regardless of whether the request was filed within or after the 60-day civil action period.

NOTE: If the Appeals Council receives additional evidence or correspondence within or after the 60-day period to file a civil action without a specific request to extend the time, the Council should address the additional material and remain silent on any extension of time. This applies regardless of whether the Appeals Council's response is before or after the civil action period has expired.

C. Docket and Files will refer all requests for extensions of time to commence a civil action to the appropriate OAO branch for action within 10 days.

D. If a claimant or representative orally requests an extension of time, the claimant or representative must confirm the request in writing. However, we will use the date of oral inquiry as the date the request was filed. The Hearings and Appeals Analyst who receives the oral request must:

1. Inform the caller that he or she must (a) put the request for an extension of time in writing and (b) include a reason(s) for the request.

2. Prepare a dated call record of the conversation.

3. Locate the claim file and associate the call record.

E. When the branch releases a notice extending the time to file a civil action, the analyst will change the date on the Potential Court Case flag to 60 days after the date the extension expires (120 days after the extension expires for claimants residing in Puerto Rico).

F. Requests for extensions of time to file a civil action may also raise collateral issues requiring consideration by the Appeals Council, such as a request to reopen the decision based on additional evidence. In such an instance, the analyst must prepare, in final form, a letter which responds to the issues in appropriate detail and forward the letter and claim file to the Administrative Appeals Judge who approved the denial.

G. Whenever the Council declines to grant an extension of time, the notice to the claimant must contain rationale sufficient to justify the conclusion that no good cause exists to extend the time for filing the civil action. Although the Council's refusal to extend the time for filing is discretionary and not subject to court review under section 205(g), the rationale must avoid even the appearance of an abuse of discretion.

H. Sample letters concerning the disposition of specific requests for extension of time to file a civil action, and the appropriate Appeals Text Guide references, are as follows:

6-90-51 Granting an Extension of Time to File a Civil Action

6-90-52 Denying an Extension of Time to File a Civil Action

6-90-53 Denying a Request for Reopening and Granting an Extension of Time to File a Civil Action

6-90-54 Denying Both a Request for Reopening and an Extension of Time to File a Civil Action

I. Appropriate correspondence rules and signature policies are as follows:

Type of Correspondence Signature Requirement

1. Response to claimant's

request to reopen

a. Grant a. "A" and "B" AAJs

b. Deny b. "A" AAJ

2. Response to request for

extension of time to file a

civil action

a. Grant a. Hearings and Appeals Analyst, using this

specific job title on correspondence, but

only after obtaining oral approval of "A"

AAJ. Analyst must document "A" AAJ's

decision in file.

b. Deny b. "A" AAJ



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