to whether, under sections 204(b) or 1870 (c) of the Act, there shall be no adjustment or recovery where an overpayment (including a payment under sec. 1814(e) of the Act) with respect to an individual has been made.

(Secs. 202, 216, 223, 49 Stat. 623, as amended, 53 Stat. 1368, as amended, 68 Stat. 1080 as amended, 70 Stat. 815, as amended, 49 Stat. 647, as amended; 42 U.S.C. 402, 416, and 423) [25 F.R. 1677, Feb. 26, 1960, as amended at 27 F.R. 1166, Feb. 8, 1962; 28 F.R. 14492, Dec. 31, 1963; 31 F.R. 16765, Dec. 31, 1966; 34 F.R. 13313, Aug. 16, 1969]

§ 404.906 Administrative actions which are not initial determinations. Administrative actions which shall not be considered initial determinations under any provision of the regulations in this Subpart J, but which may receive administrative review, include, but are not limited to, the following:

(a) The suspension of benefits pursuant to section 203 (h) (3) of the Act pending investigation and determination of any factual issue as to the applicability of a deduction or deductions under section 203(b) of the Act.

(b) The suspension of benefits pursuant to section 225 of the act pending investigation and determination as to the cessation of the disability of an individual entitled to benefits under section 202(d) or 223 of the act.

(c) The appointment or continuance of a representative payee for and on behalf of a beneficiary under Title II of the act (see § 404.1601).

(d) The certification of any two or more individuals of the same family for joint payment of the total benefits payable to such individuals (see § 404.904).

(e) The withholding by the Administration in any month, for the purpose of recouping an overpayment, of less than the full amount of the monthly benefit otherwise payable in that month (see § 404.502).

(f) The authorization approving or regulating the amount of the fee that may be charged or received by a representative for services before the Administration (see § 404.975 (e)).

(g) The disqualification or suspension of an individual from acting as a representative in a proceeding before the Social Security Administration (see § 404.979).

(h) The determination by the Administration under the authority of the Federal Claims Collection Act of 1966

(31 U.S.C. 951-953) not to compromise a claim for overpayment under title II or title XVIII of the Act or not to suspend or terminate collection of such a claim or the determination to compromise such a claim, including the compromise amount and the time and manner of payment (see § 404.515).

[25 F.R. 1677, Feb. 26, 1960, as amended at 25 F.R. 2127, Mar. 15, 1960; 25 F.R. 9469, Oct. 4, 1960; 27 F.R. 4513, May 11, 1962; 28 F.R. 14492, Dec. 31, 1963; 32 F.R. 7750, May 27, 1967; 33 F.R. 3060, Jan. 16, 1968: 34 F.R. 385, Jan. 10, 1969; 34 F.R. 6973, April 26, 1969; 34 F.R. 14889, Sept. 27, 1969]

Written notice of an initial determination shall be mailed to the party to the determination at his last known address, except that no such notice shall be required in the case of a determination that a party's entitlement to benefits has ended because of such party's death (see § 404.905(d)). If the initial determination disallows, in whole or in part, the application or request of a party, or if the initial determination is to the effect that a husband, widower, or parent was not receiving the requisite support from an insured individual, or that a party's entitlement to benefits has ended, or that a reduction, deduction, or adjustment is to be made in benefits or a lump sum, or that a period of disability established for a party has terminated, the notice of the determination sent to the party shall state the basis for the determination. Such notice shall also inform the party of the right to reconsideration (see § 404.910) unless such determination is to the effect that a deduction, or, except in disability claims, a termination, is to be made and such determination is based only upon facts reported to the Administration by the party to the determination. Notice of termination because of cessation of disability shall inform the party to the determination of the right to reconsideration, even where the termination was based on a report to the Administration by the party to the determination that his condition improved or that he returned to work.

[31 F.R. 16766, Dec. 31, 1966]

§ 404.908 Effect of initial determination.

The initial determination shall be final and binding upon the party or parties to such determination unless it is reconsid

ered in accordance with §§ 404.910404.916, or it is revised in accordance with § 404.956.

§ 404.909

Reconsideration and hearing.

Any party who is dissatisfied with an initial determination may request that the Administration reconsider such determination, as provided in § 404.910. If a request for reconsideration is filed, such action shall not constitute a waiver of the right to a hearing subsequent to such reconsideration if the party requesting such reconsideration is dissatisfied with the determination of the Administration made on such reconsideration; and a request for a hearing may thereafter be filed, as is provided in § 404.917.

[25 F.R. 1677, Feb. 26, 1960, as amended at 28 F.R. 14492, Dec. 31, 1963]

§ 404.910 Reconsideration; right to re

consideration.

The Administration shall reconsider an initial determination if a written request for reconsideration is filed, as provided in § 404.911, by or for the party to the initial determination (see § 404.905). The Administration shall also reconsider an initial determination (unless the determination is with respect to the revision of the Administration's earnings records) if a written request for reconsideration is filed, as provided in § 404.911, by an individual as a wife, widow, divorced wife, surviving divorced wife, surviving divorced mother, husband, widower, child, parent, individual alleging equitable entitlement to a lump sum, or representative of a decedent's estate, who makes a showing in writing that his or her rights with respect to monthly benefits, a lump sum, a period of disability, or entitlement to hospital or supplementary medical insurance benefits, may be prejudiced by such determination. The Administration shall also reconsider an initial determination relating to the revision of the Administration's record of the earnings § 404.905 (g)) of a deceased individual if a written request for reconsideration is filed, as provided in § 404.911, by a person as a widow, divorced wife, surviving divorced wife, surviving divorced mother, widower, child, parent, an individual alleging equitable entitlement to a lump sum, or representative of the decedent's estate.

[31 F.R. 16766, Dec. 31, 1966]

§ 404.911 Time and place of filing request.

The request for reconsideration shall be made in writing and filed at an office of the Administration or, in the case of an individual in the Philippines, at the Veterans' Administration Regional Office in the Philippines or, in the case of an individual having 10 or more years of service in the railroad industry (see Subpart O of this Part 404) or of an individual entitled to an annuity on the basis of an award under the Railroad Retirement Act prior to October 30, 1951, who requests in writing reconsideration with respect to his application to establish a period of disability under section 216(i) of the act, at an office of the Railroad Retirement Board, within 6 months from the date of mailing notice of the initial determination, unless such time is extended as provided in § 404.612 § 404.953. [25 F.R. 6468, July 9, 1960, as amended at at 28 F.R. 14492, Dec. 31, 1963]

or

§ 404.912 Parties to the reconsideration.

The parties to the reconsideration shall be the person who was the party to the initial determination (see § 404.905), and any other person referred to in § 404.910 upon whose request the initial determination is reconsidered.

§ 404.913 Notice of reconsideration.

If the request for reconsideration is filed by a person other than the party to the initial determination, the Administration shall, before such reconsideration, mail a written notice to such party at his last known address, informing him that the initial determination is being reconsidered. In addition, the Administration shall give such party a reasonable opportunity to present such evidence and contentions as to fact or law as he may desire relative to the determination. [25 F.R. 1677, Feb. 26, 1960, as amended at 28 F.R. 14492, Dec. 31, 1963]

Reconsidered determination.

The Administration shall, when a request for reconsideration has been filed, as provided in §§ 404.910 and 404.911, reconsider the initial determination in question and the findings upon which it was based; and upon the basis of the evidence considered in connection with the initial determination and whatever other evidence is submitted by the parties or is otherwise obtained, the Administration

shall make a reconsidered determination affirming or revising, in whole or in part, the findings and determination in question.

[25 F.R. 1677, Feb. 26. 1960, as amended at 28 F.R. 14492, Dec. 31, 1963]

§ 404.915 Notice of reconsidered determination.

Written notice of the reconsidered determination shall be mailed to the parties at their last known addresses. The reconsidered determination shall state the basis therefor and inform the parties of their right to a hearing (see § 404.917). § 404.916 Effect of reconsidered determination.

The reconsidered determination shall be final and binding upon all parties to the reconsideration unless a hearing is requested in accordance with § 404.918 and a decision rendered or unless such determination is revised in accordance 404.956.

with

§ 404.917 Hearing; right to hearing.

An individual has a right to a hearing about any matter designated in § 404.905, if:

(a) An initial determination and a reconsideration of the initial determination have been made by the Administration; and

(b) The individual is a party referred to in § 404.919 or § 404.920; and

(c) The individual has filed a written request for a hearing under the provisions described in § 404.918.

[31 F.R. 16766, Dec. 31, 1966]

§ 404.918 Time and place of filing request.

The request for hearing shall be made in writing and filed at an office of the Administration or, in the case of an individual in the Philippines, at the Veterans' Administration Regional Office in the Philippines, or with a hearing examiner, service in the railroad industry (see Subor the Appeals Council, or, in the case of an individual having 10 or more years of part O of this part) or of an individual entitled to an annuity on the basis of an award under the Railroad Retirement Act prior to October 30, 1951, who requests in writing a hearing with respect to his application to establish a period of disability under section 216 (i) of the act, at an office of the Railroad Retirement Board. The request for hearing must be filed within 6 months after the

date of mailing notice of the reconsidered determination to such individual, except where the time is extended as provided in § 404.612 or § 404.954.

[25 F.R. 6468, July 9, 1960, as amended at 28 F.R. 14492, Dec. 31, 1963]

§ 404.919 Parties to a hearing.

The parties to a hearing shall be the person or persons who were parties to the initial determination in question and the reconsideration. Any other individual may be made a party if such individual's rights with respect to monthly benefits, a lump sum, a period of disability, or entitlement to hospital insurance benefits or supplementary medical insurance benefits may be prejudiced by the decision, upon notice given to him by the hearing examiner to appear at the hearing or otherwise present such evidence and contentions as to fact or law as he may desire in support of his interest. [31 F.R. 16766, Dec. 31, 1966]

§ 404.920 Additional parties to the hearing.

The following individuals, in addition to those named in § 404.919, may also be parties to the hearing. Unless the hearing is with respect to the revision of an earnings record established and maintained by the Administration, a wife, widow, divorced wife, surviving divorced wife, surviving divorced mother, husband, widower, child, parent, individual alleging equitable entitlement to a lump sum, or representative of a decedent's estate, who makes a showing in writing that such individual's rights with respect to monthly benefits, a lump sum, a period of disability, or entitlement to hospital insurance benefits or supplementary medical insurance benefits may be prejudices by any decision that may be made, may be a party to the hearing. Where the hearing is with respect to the revision of an individual's earnings record, a widow, divorced wife, surviving divorced wife, surviving divorced mother, widower, child, parent, individual alleging equitable entitlement to a lump sum, or representative of the decedent's estate, may after his death, be made a party to the hearing upon filing a written notice of his or her desire to be a party. [31 F.R. 16766, Dec. 31, 1966]

§ 404.921 Hearing examiner.

The hearing provided for in this Subpart J shall, except as herein provided, be conducted by a hearing examiner des

ignated by the Director of the Bureau of Hearings and Appeals or his delegate. In an appropriate case, the Director may designate another hearing examiner or a member or members of the Appeals Council to conduct a hearing, in which case the provisions of this Subpart J governing the conduct of a hearing by a hearing examiner shall be applicable thereto.

[25 F.R. 1677, Feb. 26, 1960, as amended at 28 F.R. 1037, Feb. 2, 1963]

§ 404.922 Disqualification of hearing examiner.

No hearing examiner shall conduct a hearing in a case in which he is prejudiced or partial with respect to any party, or where he has any interest in the matter pending for decision before him. Notice of any objection which a party may have to the hearing examiner who will conduct the hearing, shall be made by such party at his earliest opportunity. The hearing examiner shall consider such objection and shall, in his discretion, either proceed with the hearing or withdraw. If the hearing examiner withdraws, another hearing examiner shall be designated by the Director of the Bureau of Hearings and Appeals or his delegate to conduct the hearing. If the hearing examiner does not withdraw, the objecting party may, after the hearing, present his objections to the Appeals Council, as provided in §§ 404.945-404.949, as reasons why the hearing examiner's decision should be revised or a new hearing held before another hearing examiner.

[25 F.R. 1677, Feb. 26, 1960, as amended at 28 F.R. 1037, Feb. 2, 1963]

§ 404.923 Time and place of hearing.

The hearing examiner shall fix a time and place for the hearing, written notice of which, unless waived by a party, shall, not less than 10 days prior to such time, be mailed to the parties at their last known addresses, or given to them by personal service. Written notice of the objections of any party to the time and place fixed for a hearing shall be filed by the objecting party with the hearing examiner at the earliest practicable opportunity. The notice shall state the reasons for the party's objection and his choice as to the time and place for the hearing. The hearing examiner may, for good cause, fix a new time and/or place for the hearing.

§ 404.924 Hearing on new issues.

At any time after a request for hearing has been made, as provided in § 404.918, but prior to the mailing of notice of the decision, the hearing examiner may, in his discretion, either on the application of a party or his own motion, in addition to the matters brought before him by the request for hearing, give notice that he will also consider any specified new issue (see § 404.905) whether pertinent to the same or a related matter, and whether arising subsequent to the request for hearing, which may affect the rights of such party even though the Administration has not made an initial and reconsidered determination with respect to such new issue: Provided, That notice of the time and place of the hearing on any new issue shall, unless waived, be given to the parties within the time and manner specified in § 404.923: And provided further, That the claim is not one within the jurisdiction of a State agency under a Federal-State agreement pursuant to section 221(b) of the act. Upon the giving of such notice, the hearing examiner shall, except as otherwise provided, proceed to hearing on such new issue in the same manner as he would on an issue on which an initial and reconsidered determination has been made by the Administration and a hearing requested with respect thereto by a party entitled to such hearing.

[25 FR. 1677, Feb. 26, 1960, as amended at 28 F.R. 14492, Dec. 31, 1963]

§ 404.925 Change of time and place for hearing.

The hearing examiner may change the time and place for the hearing, either on his own motion or for good cause shown by a party. The hearing examiner may adjourn or postpone the hearing, or he may reopen the hearing for the receipt of additional evidence at any time prior to the mailing of notice to the party of the decision in the case. Reasonable notice shall be given to the parties of any change in the time or place of hearing or of an adjournment or a reopening of the hearing. § 404.926 Subpoenas.

When reasonably necessary for the full presentation of a case, a hearing examiner or a member of the Appeals Council, may, either upon his own motion or upon the request of a party, issue subpoenas for the attendance and testimony of wit

nesses and for the production of books, records, correspondence, papers, or other documents which are relevant and material to any matter in issue at the hearing. Parties who desire the issuance of a subpoena shall, not less than 5 days prior to the time fixed for the hearing, file with the hearing examiner or at a district office of the Administration a written request therefor, designating the witnesses or documents to be produced, and describing the address or location thereof with sufficient particularity to permit such witnesses or documents to be found. The request for a subpoena shall state the pertinent facts which the party expects to establish by such witness or document and whether such facts could be established by other evidence without the use of a subpoena. Subpoenas, as provided for above, shall be issued in the name of the Secretary of Health, Education, and Welfare, and the Social Security Administration shall pay the cost of the issuance and the fees and mileage of any witness so subpoenaed, as provided in section 205 (d) of the act.

[25 F.R. 1677, Feb. 26, 1960, as amended at 28 F.R. 14492, Dec. 31, 1963]

§ 404.927 Conduct of hearing.

Hearings shall be open to the parties and to such other persons as the hearing examiner deems necessary and proper. The hearing examiner shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. If the hearing examiner believes that there is relevant and material evidence available which has not been presented at the hearing, the hearing examiner may adjourn the hearing or, at any time prior to the mailing of notice of the decision, reopen the hearing for the receipt of such evidence. The order in which evidence and allegations shall be presented and the procedure at the hearing generally, except as these regulations otherwise expressly provide, shall be in the discretion of the hearing examiner and of such nature as to afford the parties a reasonable opportunity for a fair hearing.

Witnesses at the hearing shall testify under oath or affirmation, unless they are excused by the hearing examiner for cause. The hearing examiner may examine the witnesses and shall allow the parties or their representatives to do so. If the hearing examiner conducts the examination of a witness, he may allow the parties to suggest matters as to which they desire the witness to be questioned, and the hearing examiner shall question the witness with respect to such matters if they are relevant and material to any issue pending for decision before him. § 404.930 Oral argument and written allegations.

The parties, upon their request, shall be allowed a reasonable time for the presentation of oral argument or for the filing of briefs or other written statements of allegations as to facts or law. Where there is more than one party to the hearing, copies of any brief or other written statement shall be filed in sufficient number that they may be made available to any party.

§ 404.931 Record of hearing.

A complete record of the proceedings at the hearing shall be made. The record shall be transcribed in any case which is certified to the Appeals Council without decision by the hearing examiner (see §§ 404.939 and 404.942 to 404.944, inclusive), in any case where a civil action is commenced against the Secretary (see § 404.951), or in any other case when directed by the hearing examiner or the Appeals Council.

§ 404.932 Joint hearings.

When two or more hearings are to be held, and the same or substantially similar evidence is relevant and material to the matters in issue at each such hearing, the hearing examiner may fix the same time and place for each hearing and conduct all such hearings jointly. Where joint hearings are held, a single record of the proceedings shall be made and the evidence introduced in one case may be considered as introduced in the others, and a separate or joint decision shall be made, as appropriate.