TN 5 (12-17)
DI 33020.025 Reopenings by the Disability Hearing Officer (DHO)
A. Reference for reopening
For rules for reopening for initial and reconsideration cases see chapter DI 27500.000. For instructions related to CDR reopenings, see 28500.000.
B. General Procedures for reopening
1. Basis change
When a disability hearing officer (DHO) proposes to reopen an unfavorable reconsidered decision only to change the basis for the cessation, offer the individual a disability hearing before we issue the final decision.
2. Conflicting decisions
For information on conflicting decisions see DI 33020.025C.2. in this subsection and DI 27520.030.
3. Due process
For information on due process for adverse reopening, see DI 27525.001.
In a fully favorable revision, we do not require advance due process since we are not depriving the individual of any property interest.
In a partially favorable revision that is more favorable than the prior DHO decision, we do not require advance due process since the present decision is more favorable to the individual’s interest see DI 28501.005A.
Send a pre-decision notice to the individual explaining the evidence and the reasoning for the proposed adverse reopening.
The notice must include the right to submit additional evidence or arguments. Also, it must include the right to request a disability hearing before we make a formal adverse decision.
b. Pre-decision notice content
Send a notice containing the following elements to the individual and his or her representative prior to taking an adverse action:
Indicate that we are planning to reopen our previous decision. Also, indicate the reason for doing so (e.g., we received new evidence; we made an error).
The date of the proposed cessation.
A list and dates of all medical reports we used to make the preliminary judgment to revise. If we undertook development but did not receive all reports, we will provide a disclaimer statement that:
We attempted to obtain the reports but were unable to do so, and
We must make the decision based on the available evidence.
An explanation of why the evidence indicates that the individual is not disabled or blind. This information is similar to the information in a personalized decision notice (PDN).
An explanation that the individual may request a disability hearing and present any evidence or arguments in support of his or her belief that he or she is disabled. The individual must request this action within 10 days from receipt of the notice. The individual must complete the Form SSA-765 (Response to Notice of Revised Decision), and return it to the Disability Hearing Unit (DHU). Attach an SSA-765 to the notice so the individual can respond. We will make a formal decision if the individual fails to respond within 10 days.
An explanation of the effect of a formal adverse decision (i.e., benefits continue for two months after the cessation date).
An explanation of the right to have a disability hearing, including the right to representation, to bring witnesses and evidence. We will send notification of the date, place, and time of the hearing by mail.
For additional instructions related to the due process notice, see DI 33020.025C in this section.
c. Auxiliary notice
Send all auxiliaries an advance notice of a proposed adverse action.
For model notice language, see DI 27525.005
C. Procedures for various issues
1. Reconsideration decision cannot be reopened and revised
Follow instructions, Reopening and revising a determination or decision in DI 27501.005.
2. Conflicting decisions
a. General instructions to correct conflicting decisions
Offer due process as shown in this subsection before revising a favorable decision to correct conflicting decisions.
b. DHO issued an unfavorable decision; administrative law judge (ALJ) or the Appeals Council (AC) issued a favorable decision
Reopen and revise the prior DHO decision to conform to the ALJ's or AC's decision, or
Forward the case to the Office of Disability Operations (ODO) in central office to determine if there is a basis for reopening an ALJ's or AC's decision, e.g., material evidence is in the current case folder that was not available to the ALJ or AC, or error on the face of the evidence exists.
Prepare a revised decision if the Office of Hearings Operations (OHO) responds by stating that we will not reopen the ALJ's or AC's decision.
c. DHO issued a favorable decision ALJ or AC issued an unfavorable decision
Forward the case to OHO’s central office to resolve the conflict. This action is necessary considering that DHO cannot reopen an ALJ's or AC's decision and that we must give the individual an opportunity for a hearing before revising a favorable decision to an unfavorable one.
3. After due process notice released
Diary the case for 15 days (10 days plus 5 days mail time).
Add the case to the hearing schedule upon receipt of the individual’s response to the notice or upon expiration of the diary, whichever is earlier.
Review all responses received from the individual to make sure that we have the information we need to provide notification of a hearing.
4. Due process notice returned
(i.e., whereabouts unknown)
Attempt to contact the individual, including all auxiliary individuals, at their last known telephone number.
Issue a due process notice if we obtain an address. Otherwise, request the FO to try to locate the individual's whereabouts. Advise the FO of any leads in the case folder which may aid in locating the individual.
Add the case to the hearing schedule if we cannot locate the individual. When we schedule a hearing for the case, process it as a “waiver of appearance” case.
5. Allegations of improper or no due process notice
Follow instructions, Reinstating benefits when a beneficiary alleges improper or no due process in DI 27525.020.
6. Allegation of no final cessation or termination notice
Review the case folder to ensure that the advance due process notice complies with existing instructions.
Take corrective action if any deficiency exists concerning the due process notice see DI 27525.020.
Determine if we sent a proper cessation notice. If we did not send a proper cessation notice, reinstate benefits as in DI 27525.020, and take appropriate corrective action.
Send a letter to the individual and or representative explaining the situation, giving the date of the notice, etc. Send this letter regardless of whether we sent a cessation notice.