I-2-2-10.Notice of Issues

Last Update: 8/15/05 (Transmittal I-2-61)

The Administrative Law Judge (ALJ), or the hearing office (HO) staff under the ALJ's direction, must send notice of the hearing to the claimant and representative at least 20 days before the hearing, unless the claimant has waived the right to a 20-day notice or the claimant has waived the right to a hearing. The Notice of Hearing must include a statement of all issues to be decided. (See sample language in I-2-2-90 through I-2-2-101 and I-2-3-15, Notice of Hearing.)

The ALJ may raise new issues (i.e., issues not previously adjudicated) if the ALJ notifies the claimant in writing about the new issues or the claimant has waived the right to notice of the new issue on record or in writing. The ALJ may agree to adjudicate new issues raised by the claimant.

EXCEPTION:

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

Example 1.

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

Example 2.

An ALJ has a claim for supplemental security income based on disability. The claim was previously denied because of the claimant's excess income. There is medical evidence in the file. The ALJ is prepared to rule favorably on the excess income issue and find the claimant disabled, but as of a date later than the claimant alleges. The ALJ cannot raise the new disability issue, because the decision about disability would not be wholly favorable. The ALJ must rule only on the excess income issue, and return the claim file to the State agency for action on the disability issue. If, however, the ALJ is prepared to issue a wholly favorable decision on the issue of disability, the ALJ can raise it as a new issue and provide notice of the new issue to the claimant or seek a waiver of the 20-day notice requirement.