I-2-9-80.Reopening and Revision Is Warranted — Notice and the Revised Decision

Last Update: 9/28/05 (Transmittal I-2-65)

Citations:

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 rendered by any ALJ on a prior application, and the revised decision will be fully favorable to the claimant, the ALJ may proceed with the reopening and revision without advance notice to the claimant.

  2. If, in connection with a current application, an ALJ decides that the conditions exist for reopening and revising a favorable determination or ALJ decision rendered by any ALJ on a prior application, and the revised decision will be less than fully 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.

  3. If there is no current claim and an ALJ decides that the conditions exist for reopening and revising an unfavorable ALJ decision issued by that ALJ, and the revised decision will be fully favorable to the claimant, the ALJ may proceed with the reopening and revision without advance notice to the claimant.

  4. 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 issued by that ALJ, 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.

  5. If an ALJ decides to revise a prior decision under the rules of administrative finality and the proposed revision is based on additional evidence, the claimant must be given notice of the proposed revision and an opportunity for a hearing. If the claimant waives the right to a hearing, the ALJ may proceed with his or her proposed action. When the proposed revision is based upon the same evidence the regulations do not require that the notice give the claimant the right to a hearing.

  6. 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 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.

B. Notice of Proposed Revision of Prior Decision - Content

If the proposed revision of a prior decision requires Notice to the claimant, the notice must give the claimant the following information:

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

  • The nature of, and rationale for, the proposed revisions;

  • The opportunity to exercise the right to request a hearing when reopening or 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;

  • The opportunity to submit additional evidence or further written statement even if the claimant waives the right to a hearing;

  • A statement that if the claimant does not wish a hearing or appearance, as appropriate, and has nothing further to submit, the ALJ will then proceed with his or her action;

  • 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 at the time the prior decision was made;

  • If the proposed revision involves a Title XVI case and the claimant is in payment status, the content of the notice will parallel the above requirements. 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 ALJ 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.

    NOTE:

    A protest or referral 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 on it.

    For guidelines language refer to the notice shells in the Document Generation System and modify the language depending on the type of claim involved and the individual circumstances of the case.

C. Revised Decision — Content

  1. 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:

    1. The date of the prior decision, an explanation of the basis for reopening and the part(s) of the decision being revised.

    2. The reasons for the revision.

    3. Reference to the appropriate law and regulations.

    4. A summary of any new and material evidence.

    5. A complete rationale.

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

  2. 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 revised decision must contain the following information:

    1. The date of the prior decision, an explanation of the basis for reopening and the specific part(s) of the decision being revised.

    2. The reasons for the revision.

    3. Reference to the appropriate law and regulations.

    4. A summary of any new and material evidence.

    5. A complete rationale.

    6. 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 Appeals Council review is filed and either:

    • the Appeals Council grants the request; or

    • the Appeals Council denies the request, and a civil action is filed; or

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

  3. the revised decision is further revised by the Appeals Council or by an ALJ.