[Federal Register Volume 81, Number 49 (Monday, March 14, 2016)]
[Notices]
[Pages 13438-13439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05663]


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SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2015-0070]


Social Security Acquiescence Ruling (AR) 16-1(7), Boley v. 
Colvin: Judicial Review of an Administrative Law Judge's Order Finding 
No Good Cause for a Late Hearing Request and Dismissing the Request as 
Untimely--Titles II and XVI of the Social Security Act

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Acquiescence Ruling (AR).

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SUMMARY: We are publishing this Social Security AR to explain how we 
will apply a holding in a decision of the United States Court of 
Appeals for the Seventh Circuit that we have determined conflicts with 
our interpretation of the law regarding judicial review of an 
administrative law judge's (ALJ's) order finding no good cause for a 
late hearing request and dismissing the request as untimely.

DATES: Effective: March 14, 2016.

FOR FURTHER INFORMATION CONTACT: Todd Lewellen, Office of the General 
Counsel, Office of Program Law, Social Security Administration, 6401 
Security Boulevard, Baltimore, MD 21235-6401, (410) 965-3309, or TTY 
410-966-5609, for information about this notice. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: We are publishing this Social Security AR in 
accordance with 20 CFR 402.35(b)(2), 404.985(a), (b), and 416.1485(a), 
(b) to explain how we will apply a holding in Boley v. Colvin, 761 F.3d 
803 (7th Cir. 2014), regarding judicial review of an ALJ's order 
finding no good cause for a late hearing request and dismissing the 
request as untimely.
    An AR explains how we will apply a holding in a decision of a 
United States Court of Appeals that we determine conflicts with our 
interpretation of a provision of the Social Security Act (Act) or 
regulations when the Government has decided not to seek further review 
of that decision or is unsuccessful on further review.
    This AR explains how we will apply the holding in Boley v. Colvin 
to claims in which the claimant makes a late request for an ALJ 
hearing, the ALJ dismisses the hearing request and finds that the 
claimant lacked good cause for missing the appeal deadline, and then 
the claimant timely seeks review of the ALJ's dismissal by the Appeals 
Council (AC). We will apply this AR to all claims in the Seventh 
Circuit in which the AC denied a request for review of such a dismissal 
on or after March 14, 2016. If the AC denied a request for review of an 
ALJ dismissal between August 4, 2014 (the date of the Court of Appeals' 
decision) and March 14, 2016 (the effective date of this AR), the 
claimant may request that we apply the AR.
    When we received this precedential Court of Appeals' decision and 
determined that an AR might be required, we began to identify those 
claims that were pending before the agency that might be subject to 
readjudication if we subsequently issued an AR. Because we have 
determined that an AR is required and are publishing this AR, we will 
send a notice to those individuals whose claims we have identified. In 
the notice, we will provide information about the AR and the claimant's 
rights under the AR. However, claimants may request that we apply this 
AR to their claims even if they did not receive a notice, as provided 
in 20 CFR 404.985(b)(2) and 416.1485(b)(2).
    If we later rescind this AR as obsolete, we will publish a notice 
in the Federal Register to that effect, as provided in 20 CFR 
404.985(e) and 416.1485(e). If we decide to relitigate the issue 
covered by this AR, as provided by 20 CFR 404.985(c) and 416.1485(c), 
we will publish a notice in the Federal Register stating that we will 
apply our interpretation of the Act or regulations involved and 
explaining why we have decided to relitigate the issue.

(Catalog of Federal Domestic Assistance, Program Nos. 96.001 Social 
Security--Disability Insurance; 96.002 Social Security--Retirement 
Insurance; 96.004 Social Security--Survivors Insurance)

    Dated: March 3, 2016.
Carolyn W. Colvin,
Acting Commissioner of Social Security.

ACQUIESCENCE RULING 16-1(7)

    Boley v. Colvin, 761 F.3d 803 (7th Cir. 2014): Judicial Review of 
an Administrative Law Judge's Order Finding No Good Cause for a Late 
Hearing Request and Dismissing the Request as Untimely--Titles II and 
XVI of the Social Security Act.
    ISSUE: May a claimant obtain judicial review of an administrative 
law judge (ALJ)'s order finding no good cause for a late hearing 
request and dismissing the request as untimely?
    STATUTE/REGULATION/RULING CITATION: Sections 205(g) and 1631(c)(3) 
of the Social Security Act (42 U.S.C. 405(g), 1383(c)(3)); 20 CFR 
404.900(a), 404.901, 404.903(j), 404.933(b)-(c), 404.955, 404.957, 
404.959, 416.1400(a), 416.1401, 416.1403(a)(8), 416.1433(b)-(c), 
416.1455, 416.1457, 416.1459.
    CIRCUIT: Seventh (Illinois, Indiana, Wisconsin).
    APPLICABILITY OF RULING: This ruling applies to claims in which a 
claimant resides in a State within the Seventh Circuit and in which an 
ALJ entered an order finding no good cause for a late hearing request, 
the ALJ dismissed the request as untimely, the claimant requested 
review by the Appeals Council (AC), and the AC denied review.
    DESCRIPTION OF CASE: Marilyn Boley filed a claim for disability 
insurance benefits. We denied her claim at the initial and 
reconsideration levels of administrative review. Although she was 
represented by an attorney at the time we denied her request for 
reconsideration, we sent notice of the reconsidered determination to 
Ms. Boley, but not to her attorney. After learning that we had denied 
Ms. Boley's request for reconsideration, the attorney requested a 
hearing. An ALJ dismissed that request as untimely because the 
regulations at 20 CFR 404.933(b) and 416.1433(b) require a claimant to 
request a hearing within 60 days of the claimant's receipt of a 
reconsidered

[[Page 13439]]

determination. While regulations allow the ALJ to extend the time for 
requesting a hearing when a claimant has ``good cause'' for the late 
request, the ALJ ruled that Ms. Boley lacked good cause because she had 
received the reconsideration notice and could have filed a hearing 
request herself. Ms. Boley filed a timely request for review of the 
ALJ's dismissal order with the AC. When the AC denied her request for 
review of the ALJ's dismissal order, Ms. Boley sought judicial review.
    HOLDING: The United States Court of Appeals for the Seventh Circuit 
concluded that a claimant for Social Security benefits may obtain 
judicial review of an ALJ's dismissal order finding no good cause for a 
late hearing request after exhausting all available administrative 
remedies.
    STATEMENT AS TO HOW BOLEY DIFFERS FROM THE AGENCY'S POLICY:
    Unlike the holding in Boley, our policy provides that an ALJ's 
order finding no good cause for a late hearing request and dismissing 
the request as untimely is not subject to judicial review. Section 
205(g) of the Social Security Act, 42 U.S.C. 405(g), ``clearly limits 
judicial review to a particular type of agency action, a `final 
decision of the [Commissioner of Social Security] made after a 
hearing.' '' Califano v. Sanders, 430 U.S. 99, 108 (1977). The Supreme 
Court has also recognized that ``the term `final decision' is left 
undefined by the Act and its meaning is to be fleshed out by the 
[Commissioner's] regulations.'' Weinberger v. Salfi, 422 U.S. 749, 751 
(1975).
    Under our regulations, the claimant must first obtain an ``initial 
determination'' and then complete an administrative review process 
consisting of several steps, ``which usually must be requested within 
certain time periods,'' 20 CFR 404.900(a), 416.1400(a), before 
obtaining a judicially reviewable ``decision.'' Not all agency actions 
constitute ``initial determinations'' subject to the administrative 
review process and, ultimately, judicial review. 20 CFR 404.903, 
416.1403(a) (identifying numerous administrative actions that are not 
initial determinations). For example, although we will extend the time 
to seek a hearing upon a showing of good cause, 20 CFR 404.933(c), 
416.1433(c), an administrative action denying a request to extend a 
time period is not an initial determination subject to the 
administrative review process or judicial review. 20 CFR 404.903(j), 
416.1403(a)(8).
    Further, our regulations provide that a ``decision'' means ``the 
decision made by the administrative law judge or the Appeals Council.'' 
20 CFR 404.901, 416.1401. Of direct relevance here, the regulations 
distinguish between an ALJ's ``decision'' and an ALJ's dismissal of a 
claimant's request for a hearing. An ALJ's decision is subject to 
review by the agency's AC and ultimately may be subject to judicial 
review. 20 CFR 404.955, 416.1455. An ALJ's dismissal of a hearing 
request, 20 CFR 404.957, 416.1457, on the other hand, is not a 
``decision'' within the meaning of section 205(g) of the Act. Rather, 
it is binding unless vacated by an ALJ or the AC, and the dismissal of 
a hearing request is not subject to judicial review. 20 CFR 404.959, 
416.1459.
    EXPLANATION OF HOW WE WILL APPLY THE BOLEY DECISION WITHIN THE 
CIRCUIT:
    This Ruling applies only to claims in which all the following 
criteria are met:
    1. The claimant did not timely request a hearing before an ALJ;
    2. The ALJ dismissed the claimant's request for a hearing;
    3. The basis for the ALJ's dismissal of the hearing request was 
that the claimant failed to show good cause for untimely filing of the 
hearing request;
    4. The claimant timely filed a request for the AC to review the 
ALJ's dismissal of the hearing request;
    5. The AC denied the claimant's request for review; and
    6. The claimant resided in Indiana, Illinois, or Wisconsin at the 
time the AC denied review.
    If a case meets these criteria, we will send notice explaining that 
the claimant may appeal the dismissal to the Federal district court for 
the judicial district in Illinois, Indiana, or Wisconsin in which the 
claimant resides.

[FR Doc. 2016-05663 Filed 3-11-16; 8:45 am]
 BILLING CODE 4191-02-P