Last Update: 9/2/05 (Transmittal I-2-64)
“Claimant,” as used herein, refers to the party to the initial, reconsidered, or revised determination who has requested a hearing before an ALJ, and any other party to the determination, or person whose rights may be adversely affected by a hearing decision. (See I-2-1-45, Parties to the Hearing.)
The Social Security Act requires the Commissioner of Social Security Administration to provide a claimant with reasonable notice and opportunity for a hearing. The Commissioner has delegated to Administrative Law Judges (ALJs) the authority to hold hearings and issue decisions.
The regulations at 20 CFR §§ 404.938, 416.1438, require that a notice of the hearing to be provided to the claimant and the representative, if one is of record, at least 20 days before the hearing. This 20-day notice may be waived when the claimant is advised of his or her right to a 20-day written notice. The waiver should be in writing and placed as an exhibit in the administrative record. SSA has developed a “Waiver of Written Notice of Hearing” form, which may be accessed through the Document Generation System (DGS) by clicking on “Correspondence,” then on “Prehearing,” and then on “Waiver of Written Notice of Hearing.”
The ALJ must inquire fully into all matters at issue and conduct the administrative hearing in a fair and impartial manner. The hearing is open to the claimant and to other persons the ALJ considers necessary and proper. The ALJ must ensure that the claimant understands how the hearing will be conducted, and the general and specific issues on which findings will be made. The ALJ or the hearing office (HO) staff under the ALJ's direction will take some or all of the actions described in the following sections.
The ALJ hearing generally includes:
an introduction (See I-2-6-50, Administrative Law Judge Introduction at the Hearing.);
an opening statement (See I-2-6-52, Opening Statement.);
oaths or affirmations (See I-2-6-54, Oaths and Affirmations.);
adducing the evidence (See I-2-6-56, Adducing the Evidence.);
receipt of oral testimony (See I-2-6-60, Testimony of Claimants and Witnesses.);
presentation of written or oral argument (See I-2-6-76, Arguments by the Claimant.); and
a closing statement (See I-2-6-78, Closing the Hearing.).
The regulations provide that the claimant may waive his or her right to a hearing. The only requirement is that for a waiver to be valid is that it must be in writing. The waiver may be withdrawn by a party prior to the mailing of a decision in the case. Also, the regulations provide that an ALJ may conduct a hearing upon notice to the claimant if a hearing would help in deciding the issue in question.
Form HA-501, “Request for Hearing” has a check-block for this purpose worded as follows: “I waive my right to appear and give evidence, and hereby request a decision on the evidence in the file.”
It is not proper for an ALJ to schedule a hearing to obtain additional evidence that would assist the ALJ to decide the issue and then dismiss the Request for Hearing for the claimant's failure to appear. If the claimant does not appear, the ALJ should obtain the evidence and decide the case.
See I-2-7-20, I-2-7-30, and I-2-7-35 on the steps to be taken to proffer and admit evidence obtained at a hearing noticed by the ALJ. The evidence should be provided to, or summarized and provided to the claimant or the claimant's representative and marked as an exhibit, either for comment or to permit the claimant or the claimant's representative to take additional actions permitted once post hearing evidence is proffered.
SSA has issued additional instructions (SSR 79-19) that clarify when a claimant or the claimant's representative may waive the right to a personal appearance at a hearing by a written statement signed by the individual or authorized representative. The written waiver document must reflect a thorough understanding of the following:
the hearing procedure;
the right to personal appearance at the hearing to testify and present evidence;
the right to representation at the hearing by an attorney or other person of the individual's choice;
the possibility that additional evidence obtained through oral testimony and personal presence before the ALJ may be beneficial in evaluating the issues;
the knowledge that the decision not to appear means that the claim will be decided solely on the written evidence then in the file, plus any additional evidence submitted by the individual or the representative, or obtained by the ALJ;
the understanding that he or she may withdraw the waiver of the right to appear at the hearing at any time prior to OHA's mailing the notice of decision.
SSA has developed Form HA-4608 to assist the ALJ in complying with the above requirements. Form HA-4608 can be obtained through DGS by clicking on “Correspondence,” then clicking on “Prehearing,” and then clicking on “Waiver of Oral Hearing.”