I-3-5-72.Additional Evidence, Legal Arguments, or Contentions When Request for Hearing Was Dismissed and Appeals Council Denies Review
Last Update: 6/25/15 (Transmittal I-3-117)
Except as otherwise noted below, when reviewing an administrative law judge (ALJ) dismissal, an Office of Appellate Operations (OAO) analyst will associate a request for review, legal argument, or contention as he or she would when recommending the Appeals Council (AC) deny review of an ALJ decision. See generally Hearings, Appeals and Litigation Law (HALLEX) manual I-3-5-15.
When an ALJ dismisses a request for hearing, he or she rarely exhibits the record before issuing the dismissal. Therefore, instructions relating to exhibiting in I-3-5-15 will rarely apply at the AC level.
In regard to additional evidence when an ALJ dismissed a request for hearing, the OAO analyst will evaluate whether the evidence demonstrates the ALJ dismissal was erroneous. See 20 CFR 404.960 and 416.1460, and HALLEX I-3-5-15 and I-3-5-70. Regardless of whether the additional evidence demonstrates the ALJ dismissal was erroneous, the OAO analyst will add any additional information the claimant submits to the appropriate section of the claim(s) file. However, when recommending that the AC deny review, the OAO analyst will not exhibit the information, even if the ALJ exhibited the record before dismissing the request for hearing.
In some circumstances where additional evidence or contentions relate to whether the ALJ properly dismissed a request for hearing, it may be appropriate for an OAO analyst to specifically address the issue in the denial notice.
B. ALJ Dismissed for Administrative Res Judicata
Generally, if the claimant submits evidence with the request for review that may relate to the merits of a prior determination or decision, the AC will refer this evidence to the component that made the final determination or decision to consider whether reopening and revision is warranted. However, if the ALJ dismissed a request for hearing based on administrative res judicata, the ALJ considered the matter of reopening and revision as part of the finding that administrative res judicata was applicable. Therefore, the AC will not refer the evidence in this situation.
In some circumstances, it may be appropriate for an analyst to include language in the denial notice that explains why the additional evidence does not constitute new facts and does not preclude application of administrative res judicata.
C. ALJ Dismissed for Reason Other Than Administrative Res Judicata
When an ALJ dismisses a request for hearing for a reason other than administrative res judicata, unless the AC has jurisdiction to consider reopening and revision, it will forward additional evidence that relates to the merits of the case to the component that made the prior final determination (or decision in some circumstances). When the AC forwards evidence to another component, the analyst will note this action in the denial notice.
The analyst will prepare a form HA-505, Transmittal by Office of Disability Adjudication and Review, to transmit the evidence to the component with jurisdiction to consider the reopening and revision issue. The HA-505 can be found in the Document Generation System. The analyst will complete the following on the HA-505:
Check “Claim File”; “Decision or Order”; and “Other”;
Under “Remarks,” add “Additional evidence submitted with the claimant's request for review is being forwarded for your consideration to determine whether it warrants reopening and revision of your prior (decision) (action). Please notify the claimant of your action.”
When OAO staff releases the denial notice, staff will also forward the HA-505, with the additional evidence and a copy of the AC's denial notice to the appropriate component.
When an agency response is required on a legal argument or contention but another component has jurisdiction to respond, OAO staff will refer the issue in the same manner.