I-3-5-70.Recommendation to Deny Request for Review of ALJ's Dismissal
Last Update: 9/08/05 (Transmittal I-3-36)
Use forms HA-52 and HA-52A or the computerized disability fact sheet to recommend that the Appeals Council deny a request for review of an Administrative Law Judge's dismissal. The analyst's assessment or rationale must be on a separate sheet attached to the forms and must include:
A brief statement of the analyst's reasons for concluding that the dismissal was proper. The analyst must note any problem in the case or with the ALJ's order of dismissal (e.g., ALJ did not cite the correct determination which is the final determination of the Commissioner).
The analyst will prepare a brief statement as to the merits of the case if the analyst believes the facts would have supported favorable action had the request for hearing (R/H) not been dismissed. The analyst will include a statement of the merits with the recommendation in cases when the Administrative Law Judge could have assumed jurisdiction (e.g.,the claimant was denied on reconsideration and, although advised of the right to a hearing, the claimant did not timely file a R/H). By doing so, the Appeals Council will have the opportunity to determine whether to assume jurisdiction to correct a clearly erroneous reconsideration determination.
However, when the ALJ dismissed because the claimant had no right to a hearing (e.g., there had been no reconsideration, or the claimant was not a proper party, or the original action taken by SSA was not an initial determination as defined under 20 CFR 404.902 and 416.1402), do not include a statement regarding the merits of the case.