I-3-6-20.Notice of Own Motion Review
Last Update: 4/1/16 (Transmittal I-3-135)
When the Appeals Council (AC) reviews a hearing decision or order of dismissal on its own motion (see Hearings, Appeals and Litigation Law (HALLEX) manual I-3-6-5 and I-3-6-10), the AC must give the claimant and his or her representative (if any) notice of the review. In the notice, the AC will explain the reasons for the proposed action and provide an opportunity for the claimant to submit additional evidence and written statements before the AC takes additional action. In addition to being a due process protection for the claimant, the notice is also necessary to establish the AC's jurisdiction in the case and prevent a hearing decision from becoming the final decision of the Commissioner.
When the AC exercises own motion authority for the purpose of issuing a fully favorable decision, notice is not required.
Under 20 CFR 404.969 and 416.1469, the AC must send a claimant and his or her representative, if any, written notification of own motion review no later than 60 days after the date of the hearing action. When appropriate, assisting staff will send the notice to the claimant and appointed representative, if any, by certified mail.
B. Content of Notice
The content of an own motion notice may vary from case to case. For example, the content may vary depending on the facts of the case, the action proposed by the AC, the court jurisdiction in which the claimant resides, or how many days remain in which the AC can take own motion review. For most situations, appropriate language can be found in the Document Generation System templates and stored paragraphs.
In addition to providing standard notice language, the AC will consider whether additional notice language may be required based on any of the following:
1. Opportunity for a Supplemental Hearing
During own motion proceedings, the AC will usually provide an opportunity to request an appearance before the AC and, when appropriate, an opportunity to request a hearing before an administrative law judge (ALJ). However, in accordance with the decision in Goldberg v. Kelly, 397 U.S. 254 (1970), the AC must offer the claimant the opportunity to request a hearing when exercising own motion authority in a title XVI claim when the claimant is in payment status and the proposed revised action is not fully favorable. See 20 CFR 416.1336 and HALLEX I-3-9-84.
2. Proffering Protest Memorandum
When the AC initiates own motion review based on a protest from an effectuating component, the AC must proffer the protest memorandum to the claimant and representative, if any, unless the AC intends to issue a fully favorable decision. When appropriate, the AC will also offer the opportunity to request a supplemental hearing with the proffered protest memorandum. For more information about proffering evidence, see HALLEX I-3-7-1.
3. 8001 Cases
Unless the case involves a closed period of disability or the claimant is deceased, the AC will send notice to the claimant if the AC takes own motion review on a hearing decision that finds the claimant disabled (or that the claimant continues to be disabled). In the notice, the AC will advise the claimant that the agency will pay interim benefits if a final decision is not issued within 110 days after the date of the hearing decision. For specific language, see HALLEX I-3-6-40.
4. Subsequent Applications
In the notice, the AC will notify the claimant if the proposed action on own motion review has any impact on a subsequent application or subsequent allowance.