I-1-10-35.Appeals Council (AC) Processing of a Request for Review of Administrative Law Judge (ALJ) Dismissal With Associated Subsequent Application(s)

Last Update: 8/26/13 (Transmittal I-1-67)

Under certain circumstances set forth in 20 CFR 404.957 and 416.1457, an ALJ may dismiss a request for a hearing. If the claimant appeals the dismissal to the AC, the AC will act on the request as set forth in HALLEX I-3-1-5. When a subsequent application exists, the AC must also take certain actions to explain how its action affects the subsequent application.

A. Granting Review Based on Good Cause

1. Allowance on Subsequent Application

If the Office of Appellate Operations (OAO) analyst recommends a remand and a favorable determination was issued on a subsequent application, the analyst will address the allowance in the Appeals Review Processing System (ARPS) and the AC action document, using the instructions in HALLEX I-1-10-30.

2. Subsequent Application Pending or Denied

If the analyst recommends remand and the subsequent application is pending or was denied, the analyst will indicate in the ARPS analysis and AC remand order whether the remand action renders the subsequent application duplicate.

  • If the subsequent application is rendered duplicate, the remand order will direct the ALJ to associate the subsequent application with the prior claim and offer the claimant the opportunity for a hearing on the associated claims.

  • If the subsequent application is not duplicate, the remand order will advise the ALJ of the subsequent application, instruct the ALJ to consider consolidation, and, if the claims are consolidated, offer the claimant the opportunity for a hearing on the associated claims. If the subsequent application involves an overlapping period of time with the prior claim, the AC may direct that the ALJ consolidate the claims and adjudicate them together on remand.

If the analyst recommends a favorable decision, the AC decision will acknowledge the subsequent application and indicate the effect of the decision on the subsequent application. Generally, the AC decision will render the subsequent application duplicate.

B. Denying Review

1. Allowance on Subsequent Application

If a favorable determination was issued on a subsequent application, the analyst must consider whether any evidence in the subsequent application may be relevant to the dismissal. For example, if the claimant was found disabled based on a mental impairment, the evidence could be relevant to the issue of whether good cause exists for missing the deadline to request review. See generally SSR 91-5p.

  • If evidence is relevant to the dismissal, the analyst must evaluate and address the subsequent allowance in ARPS and the denial notice, using the instructions in HALLEX I-1-10-30.

  • If the evidence is not relevant to the dismissal, the analyst will explain why it is not relevant in the ARPS analysis. The denial notice will acknowledge the subsequent allowance and state that it does not affect the AC's action with respect to the dismissal.

2. Subsequent Application Pending or Denied

If the subsequent application is pending or denied, the analyst will note the subsequent application in the ARPS analysis but need not address the subsequent application unless there is additional evidence that shows the ALJ's dismissal was erroneous.

If the claimant submits additional evidence that is not relevant to the dismissal, the analyst must:

  • Associate the evidence with the subsequent application;

  • Add a message in eView to alert the State agency or hearing office of the additional evidence or forward the information to the appropriate location if the subsequent application folder is paper; and

  • State in the denial notice that the AC is forwarding the evidence to the field office or hearing office.