I-3-9-34.Notice of Proposed Revision of Prior Decision

Last Update: 9/08/05 (Transmittal I-3-36)

When the Appeals Council proposes to revise a prior decision of an ALJ, it may review the decision on its own motion if the period for such review has not expired (20 CFR 404.969 and 416.1469). When time for own motion review has not expired, the Council will assume jurisdiction under its own motion authority. (See I-3-6-50ff as well as the Appeals Text Guide for notice preparation.)

When the period for own motion review has expired, the Council may reopen a prior ALJ or Appeals Council decision under the rules of administrative finality (20 CFR 404.987 and 416.1487 ff.). See the NOTE to I-3-9-1. The regulations require prior notice of revision, unless the proposed revision is fully favorable to the claimant.

When the Appeals Council proposes to revise a prior decision under the rules of administrative finality and the proposed revision is based on additional evidence, the regulations require not only that the claimant be given notice of the proposed revision but also the opportunity for a hearing. If the claimant waives the right to a hearing, the Council may proceed with its proposed action. When the proposed revision is based on the same evidence, the regulations do not require that the notice give the claimant the right to a hearing. If the proposed revision is fully favorable, the Council may issue the decision without notifying the claimant because such notice would serve no useful purpose. If the proposed revision is not fully favorable, the notice must give the claimant the following information:

  1. The authority for the action, i.e., reopening under the rules of administrative finality;

  2. The nature of, and rationale for, the proposed revision;

  3. Copies of any additional evidence, unless it was submitted by or on behalf of the claimant or the proposed revision is based on evidence which was either before the ALJ or the Appeals Council at the time the prior decision was made;

    NOTE:

    A protest or referral memorandum from another SSA component objecting to an ALJ's decision is not considered “new and material” evidence; however, the claimant must be afforded the right to examine and comment upon it.

  4. Opportunity to exercise the right to request a hearing when reopening and revision under the rules of administrative finality is proposed and new and material evidence is involved or the claimant is a Title XVI claimant in payment status;

  5. Opportunity to submit additional evidence or further written statement even if the claimant waives the right to a hearing;

  6. A statement that if the claimant does not wish a hearing or appearance, as appropriate, and has nothing further to submit, the Appeals Council will then proceed with its action.

  7. If a favorable ALJ decision is being reopened and benefit payments have not been effectuated, a closing paragraph which sets forth the section 8001 provisions (see I-3-6-55 for the language and routing procedures).

For guideline language refer to reopening notice shells in the Appeals Text Guide. Modify the language depending on the type of claim involved and the individual circumstances of the case.