I-2-4-30.Dismissal — No Right to a Hearing
Last Update: 2/7/14 (Transmittal I-2-104)
The administrative law judge (ALJ) may dismiss a request for hearing (RH) when the person requesting the hearing has no right to it under 20 CFR 404.930 and 416.1430. For authority, see 20 CF 404.957(c) and 416.1457(c).
In general terms, 20 CFR 404.930 and 416.1430 state:
We will hold a hearing only if the claimant or another party to the hearing files the written request for a hearing; and
We have made one of the determinations or decisions listed in the regulations (as detailed in HALLEX I-2-4-30 C below).
An individual is a party to a hearing if he or she is a party to the initial, reconsidered, or revised determination, or is another person who shows in writing that his or her rights may be adversely affected by the hearing. In addition, any other person may be made a party to the hearing if his or her rights may be adversely affected by the ALJ's decision or dismissal and we notify the person to appear at the hearing or to present evidence supporting his or her interest. See 20 CFR 404.932 and 416.1432. See also Hearings, Appeals, and Litigation Law (HALLEX) manual I-2-1-45.
B. Persons Who May File an RH
The ALJ considers any of the following a proper party for the purposes of filing an RH:
The claimant or other party to the hearing;
An appointed representative or representative payee;
A person who may receive benefits due to a deceased beneficiary or recipient; or
An individual filing on behalf of a minor child, a mentally incompetent individual, or one who is physically unable to sign his or her own request.
The ALJ will accept an RH filed by a guardian or parent of an individual who has only recently turned 18.
C. Administrative Procedures Required Before Requesting a Hearing
Under title II (20 CFR 404.930), a claimant has a right to request a hearing if he or she has received:
A reconsidered determination;
A revised determination of an initial determination, unless the revised determination concerns the issue of whether, based on medical factors, the claimant is disabled;
A reconsideration of a revised initial determination concerning the issue of whether, based on medical factors, the claimant is disabled;
A revised reconsidered determination;
A revised decision based on evidence not included in the record on which the prior decision was based;
An initial determination denying waiver of adjustment or recovery of an overpayment based on a personal conference under 20 CFR 404.506; or
An initial determination denying waiver of adjustment or recovery of an overpayment based on a review of the written evidence of record under 20 CFR 404.506, and the determination was made concurrent with, or subsequent to, a reconsideration determination regarding the underlying overpayment but before an administrative law judge holds a hearing.
Under title XVI (20 CFR 416.1430), a claimant has a right to request a hearing if he or she has received:
A reconsidered determination;
A reconsideration of a revised determination of an initial or reconsidered determination that involves a suspension, reduction or termination of benefits;
A revised initial determination or revised reconsidered determination that does not involve a suspension, reduction or termination of benefits; or
A revised decision based on evidence not included in the record on which the prior decision was based.
When an ALJ determines that the claimant has not exhausted all earlier administrative procedures (i.e., the claimant has not received the required initial and reconsidered or revised determinations), the ALJ must find that the claimant does not have the right to a hearing and dismiss the RH.
If an RH includes or is based on issues for which the Social Security Administration (SSA) does not have jurisdiction, see the instructions in HALLEX I-2-2-10 if the issues are within the jurisdiction of a State agency, or HALLEX I-2-2-35 if the issues are within the jurisdiction of the Internal Revenue Service. Generally, the ALJ will rule on the issues for which SSA has jurisdiction, and dismiss the RH with respect to the issues for which SSA does not have jurisdiction.
If a hearing is requested on an action listed in 20 CFR 404.903 and 416.1403, “Administrative actions that are not initial determinations,” the claimant does not have a right to a hearing under the administrative review process and the RH will be dismissed. These administrative actions include a number of SSA actions, including (but not limited to) suspension of benefits pending an investigation, determining the fee that a representative may charge, and denying a request to readjudicate a claim and apply an Acquiescence Ruling.
D. Preparing Dismissal Orders
Use the Document Generation System (DGS) to prepare the Order of Dismissal, selecting “No Reconsideration Determination” in the Findings Integrated Template Dismissal template for a dismissal order when there has been no reconsideration in a title II case.
In other cases, using DGS, select the blank order to prepare the dismissal as needed. See HALLEX I-2-4-5 for necessary content in a dismissal order.