I-3-9-7.Reopening at the Hearing Level in Post-Hearing Decision Situations

Last Update: 3/08/13 (Transmittal I-3-46)

A. Administrative Law Judge"s (ALJ"s) Jurisdiction

When a current application or request for reopening is properly before an ALJ, the ALJ has jurisdiction to consider the issue of reopening and revising a final determination or ALJ decision on a prior application under any of the following circumstances:

  1. The claimant did not file a request for review by the Appeals Council (AC);

  2. The AC did not review the prior ALJ decision and issue an AC decision either on its own motion or after granting the claimant"s request for review;

  3. The claimant filed a request for review and the AC dismissed the request for a reason other than death of the claimant; or

  4. The claimant filed a request for review, the AC denied the request, and the 60-day period for filing a civil action has expired.

NOTE 1:

If the AC denied the request for review and the claimant submits additional evidence to the ALJ within the 60-day period for filing a civil action, the ALJ must refer the material to the AC for its consideration.

NOTE 2:

A Federal court"s affirmation of the prior ALJ"s decision does not affect the current ALJ"s jurisdiction to reopen and revise the prior decision.

NOTE 3:

If the AC has denied a party"s request for review of an ALJ decision (regardless of whether a Federal court has affirmed the ALJ decision), the ALJ cannot later reopen and revise the ALJ decision solely on the basis of the same evidence the AC considered when it denied the request for review. Such evidence would not be “new.” However, if new and material evidence, as defined in HALLEX I-2-9-40 and I-3-9-4, is submitted with either a request for reopening or in connection with a new application and the other conditions for reopening exist, the ALJ must reopen the prior hearing decision.

B. ALJ Lacks Jurisdiction to Reopen

An ALJ does not have jurisdiction to reopen an AC decision. Therefore, if an ALJ believes that evidence submitted in connection with a current application establishes that the claimant was under a disability during a period previously adjudicated by an AC decision on a prior application, the ALJ must take the following actions:

  1. If the time limit on reopening has expired and reopening is no longer possible:

    • Issue a decision finding the claimant disabled as of whatever date the evidence establishes, but find entitlement and/or eligibility based only on the current application(s).

    • If the claimant explicitly requested reopening, explain in the decision why reopening is not possible. If the claimant did not explicitly request reopening, reopening by the AC is barred by the regulations, and no useful purpose would be served by addressing the reopening issue in the decision on the current claim.

  2. If the time limit on reopening has not expired:

    • Issue a decision finding the claimant disabled as of the day after the date of the AC decision, and find entitlement and/or eligibility based on the current application(s) only.

    • State in the decision that the AC decision on the prior application is final and binding.

    • On the transmittal to the effectuating component, state that the AC has jurisdiction to consider the issue of reopening its decision on the prior application, and ask the effectuating component to forward the claim file to the AC when they complete their action.

    • Send a memorandum to the AC requesting the AC consider the issue of reopening its decision on the prior application(s). Attach copies of the ALJ decision and transmittal.