Effective Date: March 14, 2016
Federal Register Vol. 81, No. 49, page 13438

Acquiescence Ruling 16-1(7)

Boley v. Colvin, 761 F.3d 803 (7th Cir. 2014): Judicial Review of an Administrative Law Judge's Order Finding No Good Cause for a Late Hearing Request and Dismissing the Request as Untimely—Titles II and XVI of the Social Security Act.

ISSUE: May a claimant obtain judicial review of an administrative law judge (ALJ)'s order finding no good cause for a late hearing request and dismissing the request as untimely?

STATUTE/REGULATION/RULING CITATION: Sections 205(g) and 1631(c)(3) of the Social Security Act (42 U.S.C. 405(g), 1383(c)(3)); 20 CFR 404.900(a), 404.901, 404.903(j), 404.933(b)-(c), 404.955, 404.957, 404.959, 416.1400(a), 416.1401, 416.1403(a)(8), 416.1433(b)-(c), 416.1455, 416.1457, 416.1459.

CIRCUIT: Seventh (Illinois, Indiana, Wisconsin).

APPLICABILITY OF RULING: This ruling applies to claims in which a claimant resides in a State within the Seventh Circuit and in which an ALJ entered an order finding no good cause for a late hearing request, the ALJ dismissed the request as untimely, the claimant requested review by the Appeals Council (AC), and the AC denied review.

DESCRIPTION OF CASE: Marilyn Boley filed a claim for disability insurance benefits. We denied her claim at the initial and reconsideration levels of administrative review. Although she was represented by an attorney at the time we denied her request for reconsideration, we sent notice of the reconsidered determination to Ms. Boley, but not to her attorney. After learning that we had denied Ms. Boley's request for reconsideration, the attorney requested a hearing. An ALJ dismissed that request as untimely because the regulations at 20 CFR 404.933(b) and 416.1433(b) require a claimant to request a hearing within 60 days of the claimant's receipt of a reconsidered determination. While regulations allow the ALJ to extend the time for requesting a hearing when a claimant has “good cause” for the late request, the ALJ ruled that Ms. Boley lacked good cause because she had received the reconsideration notice and could have filed a hearing request herself. Ms. Boley filed a timely request for review of the ALJ's dismissal order with the AC. When the AC denied her request for review of the ALJ's dismissal order, Ms. Boley sought judicial review.

HOLDING: The United States Court of Appeals for the Seventh Circuit concluded that a claimant for Social Security benefits may obtain judicial review of an ALJ's dismissal order finding no good cause for a late hearing request after exhausting all available administrative remedies.


Unlike the holding in Boley, our policy provides that an ALJ's order finding no good cause for a late hearing request and dismissing the request as untimely is not subject to judicial review. Section 205(g) of the Social Security Act, 42 U.S.C. 405(g), “clearly limits judicial review to a particular type of agency action, a ‘final decision of the [Commissioner of Social Security] made after a hearing.’ ” Califano v. Sanders, 430 U.S. 99, 108 (1977). The Supreme Court has also recognized that “the term ‘final decision’ is left undefined by the Act and its meaning is to be fleshed out by the [Commissioner's] regulations.” Weinberger v. Salfi, 422 U.S. 749, 751 (1975).

Under our regulations, the claimant must first obtain an “initial determination” and then complete an administrative review process consisting of several steps, “which usually must be requested within certain time periods,” 20 CFR 404.900(a), 416.1400(a), before obtaining a judicially reviewable “decision.” Not all agency actions constitute “initial determinations” subject to the administrative review process and, ultimately, judicial review. 20 CFR 404.903, 416.1403(a) (identifying numerous administrative actions that are not initial determinations). For example, although we will extend the time to seek a hearing upon a showing of good cause, 20 CFR 404.933(c), 416.1433(c), an administrative action denying a request to extend a time period is not an initial determination subject to the administrative review process or judicial review. 20 CFR 404.903(j), 416.1403(a)(8).

Further, our regulations provide that a “decision” means “the decision made by the administrative law judge or the Appeals Council.” 20 CFR 404.901, 416.1401. Of direct relevance here, the regulations distinguish between an ALJ's “decision” and an ALJ's dismissal of a claimant's request for a hearing. An ALJ's decision is subject to review by the agency's AC and ultimately may be subject to judicial review. 20 CFR 404.955, 416.1455. An ALJ's dismissal of a hearing request, 20 CFR 404.957, 416.1457, on the other hand, is not a “decision” within the meaning of section 205(g) of the Act. Rather, it is binding unless vacated by an ALJ or the AC, and the dismissal of a hearing request is not subject to judicial review. 20 CFR 404.959, 416.1459.


This Ruling applies only to claims in which all the following criteria are met:

  1. The claimant did not timely request a hearing before an ALJ;

  2. The ALJ dismissed the claimant's request for a hearing;

  3. The basis for the ALJ's dismissal of the hearing request was that the claimant failed to show good cause for untimely filing of the hearing request;

  4. The claimant timely filed a request for the AC to review the ALJ's dismissal of the hearing request;

  5. The AC denied the claimant's request for review; and

  6. The claimant resided in Indiana, Illinois, or Wisconsin at the time the AC denied review.

If a case meets these criteria, we will send notice explaining that the claimant may appeal the dismissal to the Federal district court for the judicial district in Illinois, Indiana, or Wisconsin in which the claimant resides.

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