II-5-1-6.Appeals Council Action When an Administrative Law Judge (ALJ) Dismisses a Request for Hearing for Failure to Appear Without Proper Notice to the Claimant

Appeals Council Interpretation
SUBJECT : Appeals Council Action When an Administrative Law Judge (ALJ) Dismisses a Request for Hearing for Failure to Appear Without Proper Notice to the Claimant
     
ISSUE : Should the Appeals Council assume jurisdiction when an ALJ dismisses a request for hearing for failure to appear if the claimant has not received proper notice of hearing?
     
DISCUSSION : Social Security Regulations at 20 CFR 404.957(b)(1) and (2) and 416.1457(b)(1) and (2) provide two procedures for dismissing a request for hearing when both the claimant and the representative fail to appear at a scheduled hearing. Although 20 CFR 404.957(b)(1) and 416.1457(b)(1) specifically refer to the notice of hearing, paragraph (b)(2) of these regulations is silent regarding notification. Nevertheless, all dismissals under these sections must be in accord with the regulatory notice requirements.
     
    The regulations at 20 CFR §§ 404.938 and 416.1438 provide that a notice of hearing will be mailed to the claimant's last known address at least 20 days before the hearing and must contain a statement of the issues to be decided and a statement that the ALJ may dismiss the request for hearing if both the claimant and the representative fail to appear without good cause. If the claimant or the representative fails to acknowledge receipt of the notice, the hearing office must attempt to contact the claimant for an explanation. HALLEX I-2-4-25 B. and C. state that the return of the acknowledgement card or the attempt to perfect notice, documented in the record, is a prerequisite to dismissing the request for hearing on the grounds of abandonment. Accordingly, an ALJ cannot use a show cause order as an alternative to following the regulatory notice requirements, unless there is information clearly establishing that notice was received.
     
    The Appeals Council has decided that in a case in which an ALJ did not fully comply with the requirements of 20 CFR §§ 404.938 and 416.1438, it will not assume jurisdiction when the information submitted with the request for review clearly shows that the claimant had notice of the time and place set for the hearing.
     
INTERPRETATION : The Appeals Council will ordinarily assume jurisdiction on error of law grounds and remand the case if the ALJ dismissed a request for hearing on the grounds of abandonment when the record shows that the hearing office did not comply with the notice requirements. Conversely, the Appeals Council will not assume jurisdiction when the information submitted with the request for review clearly shows that the claimant had notice of the time and place set for the hearing.
     
APPLICATION : The Appeals Council will apply this interpretation in all cases that come before it involving the same issue.
     
EFFECTIVE DATE : December 14, 1989, as supplemented on July 21, 1992
     
CROSS-REFERENCE : 20 CFR §§ 404.938, 404.957, 416.1438, and 416.1457; HALLEX I-2-3-15, I-2-3-20, I-2-4-25, and I-3-3-15.