For detailed information about when an administrative law judge (ALJ) will dismiss a request for hearing using administrative res judicata or refuse to consider an issue(s) on a subsequent application arising from the same title of the Social Security Act because of administrative res judicata, see Hearings, Appeals and Litigation Law (HALLEX) manual HA 01240.040.

If, on review of an ALJ decision issued on the merits, the Appeals Council (AC) finds that:

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  The request for hearing should have been dismissed on the basis of administrative res judicata, the AC will grant review (or may take own motion review), vacate the hearing decision, and dismiss the request for hearing.

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  The ALJ should have dismissed one or more issues using administrative res judicata and rendered a decision on other issues, the AC will grant review (or may take own motion review) and determine the most appropriate action based on the facts of the case (e.g., issue a corrective decision or dismissal order, or remand the case for additional administrative proceedings).

The AC must be careful to avoid finding the ALJ erred in not applying res judicata when an exception applies. For possible exceptions, see HALLEX HA 01240.040 C-F.

When an ALJ improperly dismisses a request for hearing (or certain issues) based on administrative res judicata, the AC will generally grant review (or may take own motion review) and remand the case to an ALJ for further proceedings. For example, if a dismissal on the basis of res judicata would be precluded by Section 5107 of the Omnibus Budget Reconciliation Act of 1990 (see HALLEX HA 01240.040 F), and the ALJ did not address the issue, the AC will remand the case if:

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  There is not enough evidence to determine whether the ALJ's dismissal was proper; or

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  The ALJ's dismissal was not proper.