I-2-2-10.Notice of Issues
Last Update: 1/13/16 (Transmittal I-2-159)
The administrative law judge (ALJ) uses the notice of hearing to notify any party to the hearing of the issue(s) he or she will decide, unless the claimant has waived, in writing, the right to advance notice of hearing or the right to a hearing. For notice of hearing procedures, see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-3-15. For information about a waiver of advance notice of hearing, see HALLEX I-2-3-25. For the definition of a party to the hearing, see HALLEX I-2-1-45.
B. Issues Previously Decided in Claimant's Favor
If new evidence presented before or during the hearing causes the ALJ to question a favorable determination, the ALJ will notify the claimant of any prior favorable issues that he or she will reconsider when making the hearing decision. See 20 CFR 404.946(a) and 416.1446(a). In the decision, the ALJ will make appropriate findings on the relevant issue(s).
Even when an ALJ does not receive additional evidence, an ALJ may question a favorable determination on an issue(s) if the determination is based on an error of law. In this situation, the ALJ must send advance notice to inform the claimant that the ALJ will consider the issue(s) at the hearing and make any appropriate findings in the decision.
C. New Issues
An issue is “new” if it has not been previously adjudicated. When an ALJ has jurisdiction to do so, he or she may agree to adjudicate a new issue(s) raised by a party to the hearing, or may adjudicate a new issue(s) on his or her own initiative.
When raising a new issue(s), an ALJ must notify all parties, in writing, about the new issue(s) at any time after receiving the request for hearing and before mailing a decision. See 20 CFR 404.946 and 416.1446. The ALJ may also raise a new issue(s) if, on the record during the hearing or in a writing the ALJ associates with the record, the claimant waives the right to advance notice of the new issue(s).
However, an ALJ may not raise a new issue(s) if it involves a claim that is within the jurisdiction of a State agency under a Federal-State agreement concerning the determination of disability, unless the ALJ is issuing a fully favorable decision on the issue of disability. If the ALJ does not intend to issue a fully favorable decision and there is a disability claim within the jurisdiction of the State agency, the ALJ will rule on the issues within his or her jurisdiction and dismiss the request for hearing with respect to the issue(s) within the State agency's jurisdiction. The ALJ will then return the claim(s) file to the State agency for action on the issue(s) within its jurisdiction.
An ALJ is adjudicating a claim for supplemental security income based on disability. The claim was previously denied because of the claimant's excess income and there is no medical evidence in the file. The ALJ is prepared to rule favorably on the excess income issue, but cannot issue a fully favorable decision on the issue of disability because the medical record has not been developed. The ALJ cannot raise the disability issue as it is “new.” 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.
An ALJ is adjudicating a claim for supplemental security income based on disability. The claim was previously denied because of the claimant's excess income but 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 at a date later than the claimant alleges. The ALJ cannot raise the disability issue because, although it is “new,” the decision about disability would not be fully 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. (NOTE: If the ALJ had found disability as of the claimant's alleged onset date, the ALJ could have issued a fully favorable decision.)