I-2-4-30.Dismissal — No Right to a Hearing
Last Update: 7/22/05 (Transmittal I-2-59)
The Administrative Law Judge (ALJ) may dismiss a request for hearing (RH) if it was not filed by a proper claimant or there is otherwise no right to a hearing.
Generally, the ALJ will consider an RH to have been filed by a “proper claimant” if it was filed by:
a claimant to the initial, reconsideration or revised determinations;
an individual who was not a claimant to the initial, reconsideration or revised determinations, but who shows in writing that his or her rights may be adversely affected;
a duly appointed representative on behalf of a proper claimant; or
an individual who has filed an application for and pursued a claim on behalf of a proper claimant because that claimant is a minor child, mentally incompetent, or physically unable to file an RH.
B. Actions Which Must Precede a Right to a Hearing
A claimant has a right to a hearing if the claimant has received:
in non-prototype states, a notice of a reconsideration or revised reconsideration determination; notice of revised initial determination in non-disability cases; or an ALJ's notice of proposed revised decision based on new evidence in a Title II and/or Title XVI claim; or
in prototype states, a notice of initial determination; notice of revised initial determination in non-disability cases, or an ALJ's notice of proposed revised decision based on new evidence in a Title II and/or Title XVI claim; or
an initial determination on the issue of waiver of overpayment if the field office (FO) is unable to conduct the personal conference or the claimant declines the personal conference to request an ALJ hearing in a combined overpayment reconsideration or waiver situation.
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, e.g., issues which are within the jurisdiction of a State agency (See I-2-2-10, Notice of Issues.) or the Internal Revenue Service (See I-2-2-35 Earnings Related Issues the Administrative Law Judge May and May Not Address—Jurisdiction.), the ALJ must 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 issue 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 should 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 and Acquiescence Ruling.
C. Dismissal Orders
Use DGS to prepare the Order of Dismissal, selecting “No Reconsideration” for the dismissal order when there has been no reconsideration in a Title II case.
In other cases, use DGS, selecting the blank order to prepare the dismissal as needed. Exercise care to include the appropriate facts, pertinent statutory and regulatory authority, and supporting rationale.