An issue is “new” if it has not been previously
adjudicated. When an ALJ has jurisdiction to do so, he or she may
agree to adjudicate a new issue(s) raised by a party to the hearing,
or may adjudicate a new issue(s) on his or her own initiative.
When raising a new issue(s), an ALJ must notify all parties,
in writing, about the new issue(s) at any time after receiving the
request for hearing and before mailing a decision. See 20 CFR 404.946 and 416.1446.
The ALJ may also raise a new issue(s) if, on the record during the
hearing or in a writing the ALJ associates with the record, the
claimant waives the right to advance notice of the new issue(s).
However, an ALJ may not raise a new issue(s) if it involves
a claim that is within the jurisdiction of a State agency under
a Federal-State agreement concerning the determination of disability,
unless the ALJ is issuing a fully favorable decision on the issue
of disability. If the ALJ does not intend to issue a fully favorable
decision and there is a disability claim within the jurisdiction
of the State agency, the ALJ will rule on the issues within his
or her jurisdiction and dismiss the request for hearing with respect
to the issue(s) within the State agency's jurisdiction. The ALJ
will then return the claim(s) file to the State agency for action
on the issue(s) within its jurisdiction.
An ALJ is adjudicating a claim for supplemental
security income based on disability. The claim was previously denied
because of the claimant's excess income and there is no medical
evidence in the file. The ALJ is prepared to rule favorably on the
excess income issue, but cannot issue a fully favorable decision
on the issue of disability because the medical record has not been
developed. The ALJ cannot raise the disability issue as it is “new.” The
ALJ must rule only on the excess income issue and return the claim
file to the State agency for action on the disability issue.
An ALJ is adjudicating a claim for supplemental
security income based on disability. The claim was previously denied
because of the claimant's excess income but there is medical evidence
in the file. The ALJ is prepared to rule favorably on the excess
income issue and find the claimant disabled, but at a date later
than the claimant alleges. The ALJ cannot raise the disability issue
because, although it is “new,” the decision about disability would
not be fully favorable. The ALJ must rule only on the excess income
issue and return the claim file to the State agency for action on
the disability issue. (NOTE: If the ALJ had found disability as
of the claimant's alleged onset date, the ALJ could have issued
a fully favorable decision.)