20 CFR 404.935—404.937; 404.947
Where claimant timely requests review of an Administrative Law Judge's hearing decision, held, the Appeals Council may, under section 404.947 of Social Security Administration Regulations No. 4, grant review and dismiss the claimant's request for a hearing for any reason such request could have been dismissed by the Administrative Law Judge under section 404.935 through 404.937 of Regulations No. 4, without regard to the 90-day time period from the date of mailing the hearing decision to the claimant.
R, the claimant, who last met the special earnings requirement for disability insurance benefits on June 30, 1969, filed an application for benefits on September 30, 1969. The claim was denied initially and on reconsideration. Following a hearing, the Administrative Law Judge on November 24, 1970, issued a decision denying the claim. This became the final decision of the Secretary under section 404.940 of Regulations No. 4. Subsequently, the Appeals Council denied R's request for review and judicial review of the decision was not sought. On December 7, 1971, R filed a second application for disability insurance benefits. After this later claim was denied both initially and on reconsideration on the basis of res judicata, a request for a hearing made on February 18, 1972, was granted. R asserted that he had no new evidence to submit and asked that the Administrative Law Judge make a decision on the evidence before him.
Following the hearing, in which R appeared and in which additional evidence was presented, the Administrative Law Judge found "no new evidence in this case which would justify reopening the previous decision in this case and that the final decision remains that the claimant is not entitled to establish a period of disability or to disability benefits, as determined by the Administrative Law Judge and the Appeals Council." The decision was mailed to R on July 14, 1972. Upon notice of the decision, and of his right to request review, the claimant filed with the Appeals Council on August 28, 1972, timely request for review.
The question raised is the interpretation of section 404.947 of Social Security Administration Regulations No. 4. The specific issue is whether the Appeals Council may dismiss a request for a hearing where a claimant files a timely request for review and, at the time the Appeals Council proposes to dismiss the request for a hearing, more than 90 days has elapsed from the date of mailing notice of the decision of the Administrative Law Judge to the claimant.
The regulation in question reads as follows:
404.947 Action by Appeals Council on Review. The Appeals Council may dismiss (see §404.952) or, in its discretion, deny or grant a party's request for review of a hearing examiner's decision, or may, on its own motion, within 90 days from the date of mailing notice of such decision, reopen such decision for review or for the purpose of dismissing the party's request for hearing for any reason for which it could have been dismissed by the hearing examiner (see §§404.935 through 404.937). Notice of the action by the Appeals Council shall be mailed to the party at his last known address.
Under the regulation, the Appeals Council acquires jurisdiction with respect to a claim either on review timely requested by a claimant, or on its own motion if it acts within 90 days from the date of the mailing of the Administrative Law Judge's decision. Only where jurisdiction is acquired on the basis of the Appeals Council's "own motion" decision to review, must action be taken within the 90-day period. This time limitation is imposed so that if no appeal is taken by the claimant from the decision, the claimant may, in most circumstances, consider the matter settled and the decision of the Administrative Law Judge final. This consideration is not present, however, where the claimant himself timely seeks review. In the latter instance, although it is contemplated that the Appeals Council will process review requests with due diligence, there is no specific time limitation in the regulations for the initiation or completion of such review.
Further, it would be an anomaly to allow dismissal of a hearing request when jurisdiction is based on the Appeals Council's own timely reopening but preclude dismissal of a hearing request when the claimant himself has timely sought review, and a hearing was inappropriate.
Accordingly, it is held that the Appeals Council upon timely request by the claimant for review of the Administrative Law Judge's hearing decision, may dismiss a request for a hearing for any reason the Administrative Law Judge could have dismissed such request even though the 90-day period from the date of mailing the hearing decision to the claimant has elapsed.[*]
[*]The Administrative Law Judge may dismiss a request for a hearing where the party requests dismissal (§404.935 of Regulations No. 4), and where the party abandons the request. (§404.936). Also, under section 404.937, a hearing request may be dismissed either entirely or as to any stated issue where (a) there has been a previous final decision with respect to the right(s) of the same party on the same facts pertinent to the same issue(s) (res judicata); (b) the party requesting the hearing is not a proper party or otherwise has no right to a hearing; (c) the party has failed to file a timely hearing request and the time has not been extended; and (d) the party requesting the hearing has died and there is no showing that an individual not a party will be prejudiced by the dismissal.
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