Last Update: 6/20/2016 (Transmittal I-3-144)
HA 01350.070 Recommendation
to Deny Request for Review of Administrative Law Judge Dismissal
Renumbered from HALLEX section I-3-5-70
An Office of Appellate Operations (OAO) analyst will evaluate
an administrative law judge (ALJ) dismissal using the instructions
in Hearings, Appeals and Litigation Law (HALLEX) manual HA 01330.015.
If the OAO analyst recommends that the Appeals Council (AC)
deny the request for review, the analyst will include the following
in his or her analysis in the Appeals Review Processing System:
•
A brief statement
explaining the ALJ's basis for dismissal and why the dismissal was proper;
•
A discussion of any unresolved issue in the case
or with the ALJ's order of dismissal; and
•
If the facts support a favorable action had the
ALJ not dismissed the request for hearing, a brief statement as
to the merits of the case and a recommendation as to whether the
AC should assume jurisdiction.
If the ALJ correctly dismissed
the request for hearing because the claimant had no right to a hearing
(e.g., there had been no reconsideration, the claimant was not a
proper party, or the original action was not an initial determination
as defined under 20
CFR 404.902 and 416.1402), the analyst
will not evaluate the merits of the case.
An ALJ dismissal is final and binding unless it is vacated
by the ALJ or the AC. Therefore, if the AC denies review of an ALJ's
dismissal, the AC's notice does not include the right to appeal.
(See Note 2 below for possible exceptions.) Therefore, when proposing
that the AC deny review of an ALJ dismissal, the analyst will use
the DEN 20 denial notice template in the Document Generation System
so that the claimant is not mistakenly offered appeal rights.
In the 7th Circuit
(Illinois, Indiana, or Wisconsin), the AC follows Acquiescence Ruling (AR) 16-1(7),
Boley v. Colvin, under which a claimant may file a
civil action in certain circumstances after the AC denies review of an ALJ
dismissal order. For information about AR 16-1(7), see HALLEX HA 01330.015 A.
If AR 16-1(7) applies,
the analyst will add language offering appeal rights to the denial
notice.
When the AC intends to deny a request for review of an ALJ
dismissal and the claimant has submitted additional evidence that is new
and material but does not relate to the period on or before the date of
the last merits-based determination, the AC will give protective filing
as of the date of the request for review. For definitions, see HALLEX
HA 01330.006. If the
additional evidence relates to the date on or before the last
merits-based determination, the AC will not give protective filing but
will send the evidence to the component that made the last
merits-based determination, as noted in HALLEX HA 01350.072.