I-2-9-80.Notice of Revised Determination or Decision

Last Update: 7/27/15 (Transmittal I-2-145)

A. When Advance Notice Is Required

1. Advance Notice Is Not Required

An administrative law judge (ALJ) may reopen and revise a determination or decision without advance notice to a claimant in the following situations:

  • In connection with a current application, an ALJ decides that the conditions exist for reopening and revising an unfavorable determination or hearing decision on a prior application, and the revised decision will be fully favorable to the claimant.

  • There is no current claim, the ALJ has jurisdiction, the ALJ decides that the conditions exist for reopening and revising his or her own decision, and the revised decision will be fully favorable to the claimant.

2. Advance Notice Is Required

When a revised determination or decision will not be fully favorable to the claimant, an ALJ will provide notice of the proposed action to any party to the hearing before taking the action. (For more information about who is a party to the hearing, see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-1-45). The content of the notice is explained in subsection B below.

Additionally, with one exception explained below, an ALJ must offer any party to the hearing the right to request a hearing before taking any action. Written notice and the right to request a hearing apply in the following circumstances:

  • A title XVI decision has been effectuated and the revision will not be fully favorable. It is irrelevant whether the revision is based on the same or new evidence. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and 20 CFR 416.1336;

  • Under 20 CFR 404.992 and 416.1492, an ALJ proposes to revise a decision and the revision is based on evidence not included in the record on which the prior decision was based. If the claimant waives the right to a hearing, the ALJ may proceed with his or her proposed action;

  • In conjunction with a current application, an ALJ intends to revise a prior favorable determination or ALJ decision, and the revised decision will be less than fully favorable to the claimant; or

  • The ALJ intends to revise his or her own decision and the revised decision will be less favorable to the claimant.

However, there is one circumstance when an ALJ is required to give notice but does not need to offer the claimant the right to a hearing. Under 20 CFR 404.992 and 416.1492, if an ALJ proposes to revise a decision based solely on the evidence in the record on which the prior decision was based, the ALJ need only notify any party to the hearing of the proposed action in writing. The ALJ must inform the claimant that he or she may request review by the Appeals Council if he or she disagrees with the ALJ's revised decision.

B. Content of Notice of Proposed Revision

When notice is required (see subsection A above), the notice will include the following information:

  • The authority for the action (i.e., the regulatory basis for reopening);

  • The nature and rationale of proposed revisions;

  • The right to request a hearing (when applicable);

  • The opportunity to submit additional evidence or further written statement, even if the claimant waives the right to appear at a hearing; and

  • A statement that the ALJ will proceed with his or her action if the claimant does not request a hearing (if applicable) or has nothing further to submit.

If the proposed revision involves a title XVI claim that was effectuated, the notice must also include the following information:

  • If a hearing is requested within 10 days, payments will continue until a hearing decision is rendered;

  • If a hearing is not requested, payments will continue until the ALJ issues a decision;

  • If the individual is found ineligible, any payment made on the claim will constitute an overpayment; and

  • To avoid the possibility of an overpayment, the individual may waive continuation of payment, or ask that the payments continue at a reduced rate, after receiving a full explanation of his or her rights.

Templates for the notice are located in the Document Generation System and can be modified for the type of claim(s) involved and the circumstances of the case.

C. Proffering Evidence

If the ALJ will consider any additional evidence that the claimant has not had the opportunity to review, the ALJ will proffer the evidence with notice of the proposed revision. See proffer procedures in HALLEX I-2-7-30.

NOTE:

Although a protest or referral memorandum from another agency component that objects to an ALJ decision is not considered new or material evidence, the claimant must be given the opportunity to examine and comment on the information if the revised decision based on the protest or referral will be less than fully favorable to the claimant.