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DI 33020.025: Reopenings by the Disability Hearing Officer (DHO)

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  • Effective Dates: 08/22/2012 - Present
  • Effective Dates: 12/18/2017 - Present
  • TN 4 (02-90)
  • TN 5 (12-17)
  • DI 33020.025 Reopenings
  • DI 33020.025 Reopenings by the Disability Hearing Officer (DHO)
  • A. Reference
  • A. Reference for reopening
  • See DI 27500.000ff for an understanding of the rules 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. Policy
  • B. General Procedures for reopening
  • 1. Basis Change
  • 1. Basis change
  • When a DHO proposes to reopen an unfavorable reconsidered determination to change only the basis for the cessation, the claimant will be offered a disability hearing before the determination is issued.
  • 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 Determinations
  • 2. Conflicting decisions
  • See DI 27520.030 and C.2 below for information on conflicting determinations.
  • For information on conflicting decisions see DI 33020.025C.2. in this subsection and DI 27520.030.
  • 3. Due Process
  • * See DI 27525.001 for general information on due process.
  • * Requirements
  • * A notice explaining the evidence and the reasoning for the proposed adverse reopening must be sent to the claimant.
  • * The notice must include the right to submit additional evidence or arguments, and the right to request a disability hearing before a formal adverse determination is made.
  • * Notice Content
  • 3. Due process
  • A notice containing the following elements is sent to the claimant/ representative prior to taking an adverse action:
  • * Indication that we are planning to reopen our previous determination and the reason for doing so (e.g., new evidence received, an error was made.)
  • * The date of the proposed cessation.
  • * A list and dates of all medical reports used to make the preliminary judgment to revise. If development was undertaken and reports were not received, a disclaimer statement will be provided that only reports necessary to the decision process were obtained.
  • * An explanation of why the evidence indicates that the individual is not disabled or blind. This is similar to the information given on a personalized disability notice.
  • * An explanation that the claimant may request a disability hearing and present any evidence or arguments in support of his/her belief that he/she is disabled. This must be requested within 10 days of the receipt of the notice, by completing the Response to Notice of Revised Determination (SSA-765), and returning it to the DHU. (An SSA-765 is attached to the notice so the claimant can respond.) A formal determination will be made if the claimant fails to respond within 10 days.
  • * An explanation of the effect of a formal adverse determination (i.e., benefits continue for two months after disability has ceased.)
  • * An explanation of disability hearing rights, including the right to representation, to bring witnesses and evidence, and that notification of the date/place/time of the hearing will be sent by mail.
  • * Auxiliaries must also receive advance notice of a proposed adverse action. Model language for such a notice is in DI 27525.005.
  • For information on due process for adverse reopening, see DI 27525.001.
  • NOTE: Contact with the primary beneficiary is considered advance notice for all auxiliaries who are living with him/her.
  • In a fully favorable revision, we do not require advance due process since we are not depriving the individual of any property interest.
  • C. Procedure
  • 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.
  • 1. Recon Determination Cannot be Reopened and Revised
  • a. Requirements
  • * 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.
  • Follow DI 27501.005.
  • b. Pre-decision notice content
  • 2. Conflicting Determinations
  • * General
  • 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:
  • Offer due process as shown in B.3 above before revising a favorable determination to correct conflicting determinations.
  • * DHO Issued Unfavorable Determination—ALJ or Appeals Council (AC) Issued Favorable Decision
  • * Prepare a revised determination to conform the DHO's prior decision to the ALJ's or AC's decision, or
  • * Forward the claims to ODAR's central office if there is a basis for the ALJ's or AC's decision to be reopened, e.g., material evidence is in the claims folder which was not available to ALJ or AC, or error on the face of the evidence exists. Prepare a revised determination as shown above if ODAR responds by saying the ALJ's or AC's decision will not be reopened.
  • * DHO Issued Favorable Determination—ALJ or AC Issued Unfavorable Decision
  • We attempted to obtain the reports but were unable to do so, and
  • Forward the claims to ODAR's central office to resolve the conflict. This is necessary considering that DHOs cannot reopen an ALJ's or AC's decision and that the claimant must be given an opportunity for a hearing before revising a favorable determination.
  • 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.
  • 3. After Due Process Notice Released
  • For additional instructions related to the due process notice, see DI 33020.025C in this section.
  • Diary the case for 15 days (10 days plus 5 days mail time).
  • c. Auxiliary notice
  • Add the case to the hearing schedule upon receipt of the claimant's response to the notice or upon expiration of the diary, whichever is earlier.
  • Send all auxiliaries an advance notice of a proposed adverse action.
  • Review all responses received from the claimant to make sure that the information needed to provide notification of a hearing is present.
  • For model notice language, see DI 27525.005
  • 4. Due Process Notice Returned (Whereabouts Unknown)
  • C. Procedures for various issues
  • Attempt to contact the beneficiary, including auxiliary beneficiaries, at their last known telephone numbers. Issue a due process notice if an address is obtained. Otherwise, request the FO to try to locate the individual's whereabouts. Advise the FO of any leads in the claims folder which may aid in locating the beneficiary.
  • 1. Reconsideration decision cannot be reopened and revised
  • Add the case to the hearing schedule if the beneficiary cannot be located. When the case is scheduled, process as a waiver of appearance case.
  • Follow instructions, Reopening and revising a determination or decision in DI 27501.005.
  • 5. Allegations of Improper or No Due Process Notice
  • 2. Conflicting decisions
  • Follow DI 27525.020
  • a. General instructions to correct conflicting decisions
  • 6. Allegation of No Final Cessation/Termination Notice
  • Offer due process as shown in this subsection before revising a favorable decision to correct conflicting decisions.
  • Review the claims folder to ensure that the advance due process notice complies with existing instructions.
  • 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.
  • Take corrective action as shown in DI 27525.020 if any deficiency exists concerning the due process notice.
  • c. DHO issued a favorable decision ALJ or AC issued an unfavorable decision
  • Determine if a cessation notice was properly sent if the review discloses that a proper due process notice was provided. If the cessation notice was not sent, reinstate benefits as in DI 27525.020, and take appropriate corrective action.
  • 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.
  • Send a letter to the claimant/representative explaining the situation, giving the date of the notice, etc. Do this regardless of whether a cessation notice was sent.
  • 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.
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