416.1442—Prehearing proceedings and decisions by attorney advisors.
(a) General.
After a hearing is requested but before it is held, an attorney advisor may conduct prehearing proceedings as set out in paragraph (c) of this section. If after the completion of these proceedings we can make a decision that is fully favorable to you and all other parties based on the preponderance of the evidence, an attorney advisor, instead of an administrative law judge, may issue the decision. The conduct of the prehearing proceedings by the attorney advisor will not delay the scheduling of a hearing. If the prehearing proceedings are not completed before the date of the hearing, the case will be sent to the administrative law judge unless a fully favorable decision is in process or you and all other parties to the hearing agree in writing to delay the hearing until the proceedings are completed.
(b) When prehearing proceedings may be conducted by an attorney advisor.
An attorney advisor may conduct prehearing proceedings if you have filed a claim for SSI benefits based on disability and—
(4)
There is an error in the file or some other indication that a fully favorable decision may be issued.
(c) Nature of the prehearing proceedings that may be conducted by an attorney advisor.
As part of the prehearing proceedings, the attorney advisor, in addition to reviewing the existing record, may—
(2)
If necessary to clarify the record for the purpose of determining if a fully favorable decision is warranted, schedule a conference with the parties.
(d) Notice of a decision by an attorney advisor.
If the attorney advisor issues a fully favorable decision under this section, we shall mail a written notice of the decision to all parties at their last known address. We shall state the basis for the decision and advise all parties that an administrative law judge will dismiss the hearing request unless a party requests that the hearing proceed. A request to proceed with the hearing must be made in writing within 30 days after the date the notice of the decision of the attorney advisor is mailed.
(e) Effect of actions under this section.
If under this section, an administrative law judge dismisses a request for a hearing, the dismissal is binding in accordance with § 416.1459 unless it is vacated by an administrative law judge or the Appeals Council pursuant to § 416.1460. A decision made by an attorney advisor under this section is binding unless—
(1)
A party files a request to proceed with the hearing pursuant to paragraph (d) of this section and an administrative law judge makes a decision;
(2)
The Appeals Council reviews the decision on its own motion pursuant to § 416.1469 as explained in paragraph (f)(3) of this section; or
(f) Ancillary provisions.
For the purposes of the procedures authorized by this section, the regulations of part 416 shall apply to—
(1)
Authorize an attorney advisor to exercise the functions performed by an administrative law judge under §§ 416.920a, 416.927, and 416.946 ;
(2)
Define the term “decision” to include a decision made by an attorney advisor, as well as the decisions identified in § 416.1401; and
(3)
Make the decision of an attorney advisor subject to review by the Appeals Council under § 416.1469 if an administrative law judge dismisses the request for a hearing following issuance of the decision, and the Appeals Council decides to review the decision of the attorney advisor anytime within 60 days after the date of the dismissal.
(g) Sunset provision.
The provisions of this section will no longer be effective on August 10, 2011, unless we terminate them earlier or extend them beyond that date by notice of a final rule in the Federal Register.