§ 404.933 Consolidated issues.

When one or more additional issues are raised by the hearing examiner pursuant to § 404.924, such issues may, in the discretion of the hearing examiner, be consolidated for hearing and decision with other issues pending before him upon the same request for a hearing, whether or not the same or substantially similar evidence is relevant and material to the matters in issue. A single decision may be made upon all such issues. § 404.934 Waiver of right to appear and present evidence.

If all parties waive their right to appear before the hearing examiner and present evidence and contentions personally or by representative, it shall not be necessary for the hearing examiner to give notice of and conduct an oral hearing as provided in §§ 404.923 to 404.933, inclusive. A waiver of the right to appear and present evidence and allegations as to facts and law shall be made in writing and filed with the hearing examiner. Such waiver may be withdrawn by a party at any time prior to the mailing of notice of the decision in the case. Even though all of the parties have filed a waiver of the right to appear and present evidence and contentions at a hearing before the hearing examiner, the hearing examiner may, nevertheless, give notice of a time and place and conduct a hearing as provided in §§ 404.923 to 404.933, inclusive, if he believes that the personal appearance and testimony of the party or parties would assist him to ascertain the facts in issue in the case. Where such a waiver has been filed by all parties, and they do not appear before the hearing examiner personally or by representative, the hearing examiner shall make a record of the relevant written evidence, including applications, written statements, certificates, affidavits, reports, and other documents which were considered in connection with the initial determination and reconsideration, and whatever additional relevant and material evidence the party or parties may present in writing for consideration by the hearing examiner. Such documents shall be considered as all of the evidence in the case and the decision, as provided for in § 404.939, shall be based on them.

§ 404.935

Dismissal of request for hearing; by application of party.

With the approval of the hearing examiner at any time prior to the mailing of notice of the decision, a request for a hearing may be withdrawn or dismissed upon the application of the party or parties filing the request for such hearing. A party may request a dismissal by filing a written notice of such request with the hearing examiner or orally stating such request at the hearing.

§ 404.936 Dismissal by abandonment of party.

With the approval of the hearing examiner, a request for hearing may also be dismissed upon its abandonment by the party or parties who filed it. A party shall be deemed to have abandoned a request for hearing if neither the party nor his representative appears at the time and place fixed for the hearing and either (a) prior to the time for hearing such party does not show good cause as to why neither he nor his representative can appear or (b) within 10 days after the mailing of a notice to him by the hearing examiner to show cause, such party does not show good cause for such failure to appear and failure to notify the hearing examiner prior to the time fixed for hearing that he cannot appear.

The hearing examiner may, on his own motion, dismiss a hearing request, either entirely or as to any stated issue, under any of the following circumstances:

(a) Res judicata. Where there has been a previous determination or decision by the Secretary with respect to the rights of the same party on the same facts pertinent to the same issue or issues which has become final either by judicial affirmance or, without judicial consideration, upon the claimant's failure timely to request reconsideration, hearing, or review, or to commence a civil action with respect to such determination or decision (see §§ 404.911, 404.918, 404.946, and 404.951).

(b) No right to hearing. Where the party requesting a hearing is not a proper party under section 205(b) of the act or does not otherwise have a right to a hearing under § 404.905 or § 404.917. This would include, but is not limited to, an individual claiming as a representative payee appointed pursuant to § 404.1601 (see § 404.906).

(c) Hearing request not timely filed. Where the party has failed to file a hearing request timely pursuant to § 404.918 and the time for filing such request has not been extended as provided in

§ 404.612 or § 404.954.

(d) Death of party. Where the party who filed the hearing request dies and there is no information before the hearing examiner or the Administration showing that an individual who is not a party may be prejudiced by the Administration's determination which is the subject of the request for hearing; provided, that if, within 6 months from the date of mailing notice of the Administration's reconsidered determination to the original party or within 3 months from the date notice of such dismissal is mailed to the original party at his last known address, whichever is later, any such other individual states in writing that he desires a hearing on such claim and shows that he may be prejudiced by the Administration's initial determination, then the dismissal of the request for hearing shall be vacated.

[25 F.R. 1677, Feb. 26, 1960, as amended at 27 FR. 4513, May 11, 1962; 28 F.R. 14492, Dec. 31, 1963]

§ 404.937a Notice of dismissal and right to request review thereon.

Notice of the hearing examiner's dismissal action shall be given to the parties or mailed to them at their last known addresses. Such notice shall advise the parties of their right to request review of the dismissal action by the Appeals Council (see § 404.945).

§ 404.937b Effect of dismissal.

The dismissal of a request for hearing shall be final and binding unless vacated (see § 404.938).

§ 404.938 Vacation of dismissal of request for hearing.

A hearing examiner or the Appeals Council may, on request of the party and for good cause shown, vacate any dismissal of a request for hearing at any time within 6 months from the date of mailing notice of the dismissal to the party requesting the hearing at his last known address. In any case where a hearing examiner has dismissed the hearing request, the Appeals Council may, on its own motion, within 60 days after the mailing of such notice, review such dismissal and may, in its discretion, vacate such dismissal.

§ 404.939 Hearing examiner's decision or certification to Appeals Council. As soon as practicable after the close of a hearing, the hearing examiner, except as herein provided, shall make a decision in the case or certify the case with a recommended decision to the Appeals Council for decision (see §§ 404.942-404.944). If the hearing examiner makes a decision in the case, such decision shall be based upon the evidence adduced at the hearing (§§ 404.923 to 404.933, inclusive) or otherwise included in the hearing record (see 404.934). The decision shall be made in writing and contain findings of fact and a statement of reasons. A copy of the decision shall be mailed to the parties at their last known addresses. § 404.940 Effect of hearing examiner's

decision.

The hearing examiner's decision, provided for in § 404.939, shall be final and binding upon all parties to the hearing unless it is reviewed by the Appeals Council (see §§ 404.948-404.950) or unless it is revised in accordance with § 404.956. If a party's request for review of the hearing examiner's decision is denied (see § 404.947) or is dismissed (see § 404.952), such decision shall be final and binding upon all parties to the hearing unless a civil action is filed in a district court of the United States, as is provided in section 205 (g) of the act, or unless the decision is revised in accordance with § 404.956.

§ 404.941 Removal of hearing to Appeals Council.

The Appeals Council on its own motion may remove to itself any request for hearing pending before a hearing examiner. The hearing on any matter so removed to the Appeals Council shall be conducted in accordance with the requirements of §§ 404.924 to 404.938, inclusive. Notice of such removal shall be mailed to the parties at their last known addresses.

§ 404.942 Appeals Council proceedings

on certification and review; procedure before Appeals Council on certification by the hearing examiner. When a case has been certified to the Appeals Council by a hearing examiner with his recommended decision (see § 404.939), the hearing examiner shall mail notice of such action to the parties at their last known addresses. The par

ties shall be notified of their right to file with the Appeals Council within 10 days from the date of mailing of the recommended decision, briefs or other written statements of exceptions or allegations as to applicable fact and law, except in the case of suspension or disqualification (see § 404.985 (b)). Upon request of any party made within such 10-day period, a 10-day extension of time for filing such briefs or statements shall be granted and, upon a showing of good cause, such 10day period may be extended, as appropriate. Where there is more than one party, copies of such briefs or written statements shall be filed in sufficient number that they may be made available to any party requesting a copy or any other party designated by the Appeals Council. Copies or a statement of the contents of the documents or other written evidence received in evidence in the hearing record, and a copy of the transcript of oral evidence adduced at the hearing, if any, or a condensed statement thereof shall be made available to any party upon request, upon payment of the cost, or if such cost is not readily determinable, the estimated amount thereof, unless, for good cause shown, such payment is waived. When a case has been certified to the Appeals Council by a hearing examiner for decision any party shall be given, upon his request, a reasonable opportunity to appear before the Appeals Council for the purpose of presenting oral argument. [34 F.R. 17519, Oct. 30, 1969]

§ 404.943 Evidence in proceeding before Appeals Council.

Evidence in addition to that admitted into the hearing record by the hearing examiner may not be received as evidence except where it appears to the Appeals Council that such additional evidence may affect its decision. If no additional material is presented but such evidence is available and may affect its decision, the Appeals Council shall receive such evidence or designate a hearing examiner or member of the Appeals Council before whom the evidence shall be introduced. Before such additional evidence is received, notice that evidence will be received with respect to certain matters shall be mailed to the parties, unless such notice is waived, at their last known addresses, and the parties shall be given a reasonable opportunity to present evidence which is relevant and material to such matters. When the additional evidence is presented to a

hearing examiner or a member of the Appeals Council, a transcript or a condensed statement of such evidence shall be made available to any party upon request upon payment of the cost, or if such cost is not readily determinable, the estimated amount thereof, unless, for good cause shown, such payment is waived.

[25 F.R. 5181, June 10, 1960] § 404.944

Decision of Appeals Council.

The decision of the Appeals Council, when a case has been certified to it by a hearing examiner along with his recommended decision, shall be made in accordance with the provisions of § 404.950. § 404.945 Right to request review of hearing examiner's decision or dismissal.

If a hearing examiner has made a decision, as provided in § 404.939, or dismissed a request for hearing, as provided in §§ 404.935 through 404.937, any party thereto may request the Appeals Council to review such decision or dismissal. § 404.946 Time and place of filing re

quest.

The request for review shall be made in writing and filed with an office of the Administration, or in the case of an individual in the Philippines, with the Veterans' Administration Regional Office in the Philippines, or with a hearing examiner, or the Appeals Council, or, in the case of an individual having 10 or more years of service in the railroad industry (see Subpart O of this part) or 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 review 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. Such request shall be accompanied by whatever documents or other evidence the party desires the Appeals Council to consider in its review. The request for review must be filed within 60 days from the date of mailing notice of the hearing examiner's decision or dismissal, except 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]

§ 404.947 Action by Appeals Council on review.

The Appeals Council may dismiss (see § 404.952) or, in its discretion, deny or

grant a party's request for review of a hearing examiner's decision, or may, on its own motion, within 90 days from the date of mailing notice of such decision, reopen such decision for review or for the purpose of dismissing the party's request for hearing for any reason for which it could have been dismissed by the hearing examiner (see §§ 404.935 through 404.937). Notice of the action by the Appeals Council shall be mailed to the party at his last known address. § 404.948 Procedure before Appeals Council on review.

Whenever the Appeals Council determines to review a hearing examiner's decision (except when the case is remanded to a hearing examiner in accordance with § 404.950), the Appeals Council shall make available to any party upon request, copies or a statement of the contents of the documents or other written evidence upon which the hearing examiner's decision was based, and a copy of the transcript of oral evidence, if any, or a condensed statement thereof, upon payment of the cost, or if such cost is not readily determinable, the estimated amount thereof, unless for good cause shown, such payment is waived. The parties shall be given, upon request, a reasonable opportunity to file briefs or other written statements of allegations as to fact and law. Copies of such brief or other written statements, where there is more than one party, shall be filed in sufficient number that they may be made available to any party requesting a copy and to any other party designated by the Appeals Council. [25 F.R. 5181, June 10, 1960]

Evidence in addition to that introduced at the hearing before the hearing examiner, or the documents before the hearing examiner where such hearing was waived (see § 404.934), may not be admitted except where it appears to the Appeals Council that such evidence is relevant and material to an issue before it and thus may affect its decision. Where no such evidence is presented, and it appears to the Appeals Council that additional material evidence is available which may affect its decision, the Appeals Council shall receive such evidence and designate a hearing examiner or member of the Appeals Council before whom the evidence shall be intro

duced. Before additional evidence is admitted into the record, as provided in this section, notice that evidence will be received with respect to certain issues shall be mailed to the parties, unless such notice is waived, at their last known addresses, and the parties shall be given a reasonable opportunity to comment thereon and to present evidence which is relevant and material to such issues. When the additional evidence is presented to a hearing examiner or a member of the Appeals Council, a transcript or a condensed statement of such evidence shall be made available to any party upon request, upon payment of the cost, or if such cost is not readily determinable the estimated amount thereof, unless, for good cause shown, such payment is waived.

[25 F.R. 5181, June 10, 1960] § 404.950

Decision by Appeals Council or remanding of case.

(a) General. If a case is certified to the Appeals Council by a hearing examiner (see § 404.939), the Appeals Council shall make a decision. If the Appeals Council decides to review a hearing examiner's decision as provided in § 404.947, the Appeals Council may, upon such review, affirm, modify, or reverse the decision of the hearing examiner, or vacate such decision and remand the case to a hearing examiner either for rehearing and the issuance of a decision thereon or to take further testimony in the case and return it to the Appeals Council with a recommended decision for decision by the Appeals Council. Where a case has been remanded by a court for further consideration, the Appeals Council may proceed then to make the decision or it may in turn remand the case to a hearing examiner with directions to return the case upon completion of the necessary action to the Appeals Council with a recommended decision for decision by the Appeals Council.

(b) Case remanded to hearing examiner. Where a case is remanded to a hearing examiner, he shall initiate such additional proceedings and take such other action (under §§ 404.919 through 404.940) as is directed by the Appeals Council in its order of remand. The hearing examiner may take any additional action not inconsistent with the order of remand. Upon completion of all action called for by the order of remand and any other action initiated by the hearing examiner, the hearing examiner shall

promptly (1) issue a decision in writing which contains findings of fact and a statement of reasons, or (2) when so directed by the Appeals Council, return the case with his recommended decision to the Appeals Council for its decision. A copy of the decision shall be mailed to each party at his last known address. When a recommended decision is issued, the hearing examiner shall also notify each party of his right to file with the Appeals Council within 10 days from the date of mailing of the recommended decision, briefs or other written statements of exceptions and allegations as to applicable fact and law, except in the case of suspension or disqualification (see § 404.985 (b)). Upon request of any party made within such 10-day period, a 10day extension of time for filing such briefs or statements shall be granted and, upon a showing of good cause, such 10day period may be extended, as appropriate.

(c) Decision by Appeals Council. A decision of the Appeals Council shall be based upon the evidence received into the hearing record and such further evidence as the Appeals Council may receive, as provided in §§ 404.942, 404.943, 404.948, and 404.949. This decision shall be made in writing and contain findings of fact, and a statement of reasons. A copy of the decision shall be mailed to each party at his last known address. [33 F.R. 3060, Jan. 16, 1968, as amended at 34 F.R. 17520, Oct. 30, 1969]

§ 404.951 Effect of Appeals Council's decision or refusal to review.

The Appeals Council may deny a party's request for review or it may grant review and either affirm or reverse the hearing examiner's decision. The decision of the Appeals Council, or the decision of the hearing examiner where the request for review of such decision is denied (see § 404.947), shall be final and binding upon all parties to the hearing unless a civil action is filed in a district court of the United States under the provisions of section 205 (g) or section 1869 (b) of the Act, or unless the decision is revised under the provisions described in § 404.956.

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

§ 404.952 Dismissal by Appeals Council. The Appeals Council may dismiss a request for review or proceedings pend

ing before it under any of the following circumstances:

(a) Upon request of party. Proceedings pending before the Appeals Council may, with the approval of the Appeals Council, be discontinued and dismissed upon written application of the party or parties who filed the request for review to withdraw such request.

(b) Death of party. Proceedings before the Appeals Council, whether on request for review or review on the motion of the Appeals Council, may be dismissed upon the death of a party only if the record affirmatively shows that there is no prejudiced individual who wishes to continue the action.

(c) Request for review not timely filed. A request for review of a decision by a hearing examiner shall be dismissed where the party has failed to file a request for review within the time specified in § 404.946 and the time for filing such request has not been extended as provided in § 404.612 or § 404.954.

§ 404.953 Extension of time to request

reconsideration.

If a party to an initial determination desires to file a request for reconsideration after the time for filing such request has passed (see § 404.911), such party may file a petition with the Administration for an extension of time for the filing of such request. Such petition shall be in writing and shall state the reasons why the request for reconsideration was not filed within the required time. For good cause shown, the component of the Social Security Administration which has jurisdiction over the proceedings (see § 404.902) may extend the time for filing the request for reconsideration. An extension, however, may not be granted where the sole purpose of the request is to seek revision of an individual's earnings record or a finding as to wages or self-employment income after revision is precluded by the provisions of section 205 (c) (4) or (5) of the Act (see §§ 404.804 and 404.806). Where in a proper case the time for filing a request for reconsideration has been extended in accordance with the provisions of this section, no revision of an individual's earnings record or of a finding as to wages or self-employment income may be made except as is otherwise provided in this Subpart J. [31 F.R. 16766, Dec. 31, 1966]