BASIC (12-93)

A. Policy

1. How to Request a Hearing

a. Written Request

An appellant may request a hearing by filing a written request, either a Form HA-501-U5 (Request for Hearing) or a letter, which contains at least the following:

• His/her name and Social Security Number (SSN);

• The name and SSN of his/her spouse (if any);

• The appellant's reasons for disagreeing with the determination;

• A statement of additional evidence (if any) and the date it will be submitted; and

• The name and address of any designated representative.

NOTE: Effective March 16, 2012, appointed representatives have the affirmative duty to use the iAppeals (i561, i501, and i3441) application to file a request for reconsideration or a request for hearing on a medically denied claim if they request direct fee payment on the matter. For more information about appointed representatives’ affirmative duties, see GN 03970.010.

b. When and Where to File

A hearing request may be filed within 60 days after the appellant's receipt of a notice of the reconsidered determination or revised hearing decision. An appellant may submit a hearing request at any SSA office, the Veterans Administration Regional Office in the Philippines, any Foreign Service Post, or any Railroad Retirement Board (RRB) office (if the appellant has at least 10 years or after December 31, 1995 has at least 5 years of service in the railroad industry).

NOTE: SSA will accept faxed appeal requests.

c. Extension of Time to Request a Hearing

An appellant who has the right to request a hearing, but fails to do so timely, may ask for more time to make the request for hearing. The request for extension must be in writing and state the reasons why the request for hearing was not filed timely, and it must be filed in an SSA office. If the appellant shows good cause for missing the deadline, the ALJ will extend the time for requesting a hearing.

To determine whether good cause exists, the ALJ will use the same standards as are used to determine good cause for failure to request reconsideration timely. (See SI 04020.020B.3. and regulation no. 416.1411 for a description of the basis for finding good cause.)

2. Parties Do Not Wish to Appear

The ALJ may make a decision on the record and not conduct an oral hearing if the evidence supports a finding that is fully favorable to the appellant or if the appellant and all parties to the hearing inform SSA in writing that they do not want to appear before the ALJ at an oral hearing.

3. When an Oral Hearing Is Not Held

The ALJ shall make a record of any evidence material to the issues in the case which may include any or all of the following:

• Applications;

• Written statements;

• Certificates;

• Reports;

• Affidavits;

• Any other documents used in making the decision; and

• Any other evidence which the appellant or another party to the hearing may have presented in writing.

The ALJ's decision must be based on this record.

4. Withdrawal of Hearing Request

An appellant or other party or parties to the appeal who requested the hearing may withdraw his/her request at any time before notice of the hearing decision is mailed. The withdrawal request may be submitted to the ALJ in writing or made orally at the hearing.

a. Contents of the withdrawal request must include:

• The appellant's name and SSN;

• The name and SSN of the surviving eligible spouse or other individual who may be eligible to receive benefits due a deceased claimant where appropriate (see section A.6.f. below);

• A statement of the reasons for requesting withdrawal; and

• A statement that he/she understands the effect of the request,

b. Action By an ALJ on a Withdrawal Request

The ALJ may approve the withdrawal. If so, the findings of initial, revised, or reconsidered determination become final. Withdrawal of a hearing request prevents the issuance of a hearing decision and causes the prior determination to become final.

The ALJ may refuse to approve the withdrawal request if:

• He/she believes that the appellant did not understand the consequences of a withdrawal, or

• The withdrawal would harm the appellant's interest, or

• Other parties to the hearing have not agreed to the withdrawal request and their interests would be harmed by the withdrawal.

In such instances, the hearing process will proceed as if the withdrawal had not been requested.

5. Dismissal of Hearing Requests

a. Who Can Dismiss a Hearing Request

An ALJ or the Appeals Council can dismiss a hearing request.

b. Notice of Dismissal

A notice of dismissal must be mailed to all parties at their last known address and contain the reason(s) for the dismissal. It must also state that the appellant has the right to ask the AC to vacate the dismissal action.

c. Effect of Dismissal

A dismissal is binding unless it is vacated by an ALJ or the AC.

d. Vacating a Dismissal

An ALJ or the AC may vacate a dismissal if the appellant requests it within 60 days after receiving the dismissal notice and shows good cause why the request should not have been dismissed.

The AC may also vacate a dismissal on its own motion within 60 days after the date of the dismissal notice.

The AC will advise the appellant in writing of its action.

6. Grounds For Dismissing Hearing Requests

a. Request By All Parties

The ALJ has the discretion to dismiss the hearing request if the claimant or the party or parties that requested the hearing ask that it be withdrawn or dismissed.

b. All Parties Abandon the Hearing

A party is deemed to have abandoned the hearing if:

• Neither the appellant nor his/her representative appears at the time and place fixed for the hearing; and

• Good cause for failure to appear is not established within 10 days after the ALJ mails notice to him/her advising that good cause must be established for the failure to appear at the scheduled hearing.

The option to dismiss is at the discretion of the ALJ. If there is more than one party, the request may be dismissed only if all parties abandon it.

c. Res Judicata or Collateral Estoppel

A request may be dismissed if the same facts and issues were decided involving the same party or parties in a previous claim under title XVI (res judicata), and the prior decision has become final. A new decision would be issued if the same facts and issues were decided involving the same parties under a different title of the Social Security Act applying the rule of collateral estoppel, and the prior decision has become final.

NOTE: See SI 04005.020D., which specifies that a hearing request may not be dismissed because the claim is res judicata if the appellant relied on incomplete, incorrect or misleading information.

d. No Right to a Hearing

There is no right to a hearing when:

• The appellant was not a party to the initial or reconsidered determination and his/her rights have not been, and cannot be, prejudiced by the determination; or

• The matter complained of is not an “initial determination”; or

• The initial determination has not been reconsidered, except for a revised initial determination where there is no reduction, suspension or termination of current benefits.

e. Request Not Timely and Good Cause Not Shown

The appellant may submit a statement explaining the reasons he/she did not file the request timely. If the ALJ finds that good cause is not shown for late filing, he/she will dismiss the case.

f. Appellant Dies Before the Hearing is Held or the Hearing Record is Complete

The ALJ may dismiss unless there is a surviving spouse or other eligible individual who may qualify for the benefit that may be payable to the deceased appellant, there is another remaining party to the hearing or there is interim assistance, see subsection SI 04030.020B.11. in this section. Also, see SI 04020.020B.9. and SI 04020.020B.10.

g. FO or DDS Renders Favorable Determination

The ALJ may dismiss a hearing request after 30 days after the date of notice of a revised determination if the FO or DDS reopens and revises the reconsidered determination or otherwise makes a fully favorable determination based on the evidence received, and if the appellant and all other parties to the hearing indicate that they do not wish to proceed with the hearing by a request to withdraw the hearing request.

Upon receipt of a case on remand, a revised determination must be issued. (See SI 04070.001 ff.)

7. Consolidation of RSDHI and SSI Hearing Requests

Where practicable, hearing requests on RSDHI and/or SSI claims involving one or more of the same issues may be disposed of at one hearing. If a claim for RSDHI and/or SSI is pending at any level of development involving the same party and the same issues(s), the ALJ may escalate the other claim and resolve all claims at a consolidated hearing. If, when forwarding an SSI claim for hearing, or later, you become aware of a pending hearing request on an RSDHI claim involving the same issue, Office of Hearings Operations (OHO) must be notified so that the ALJ can consider consolidating the claims. (See DI 12045.027.)

B. Procedure — Processing Hearing Requests

1. Terminal Illness Cases

Process in accordance with GN 00203.010 and DI 11005.000.

2. Waiver of Personal Appearance

Fully and carefully explain the effects of waiving the right to personal appearance at the hearing to an appellant who indicates he/she does not wish to appear.

a. Form HA-4608 (Waiver of Your Right to Personal Appearance Before An Administrative Law Judge)

If the appellant insists on waiving personal appearance, have him/her complete Form HA-4608.

DO NOT ENCOURAGE WAIVER.

b. Withdrawal of Waiver

Accept a withdrawal of the appellant's waiver at any time before the ALJ's decision is mailed.

c. ALJ May Request Appellant's Presence

Advise the appellant that an ALJ may request the appellant's presence at the hearing if the ALJ believes that the testimony and appearance of the appellant would assist in making the decision.

NOTE: The appellant's waiver of his/her right to appear cannot prevent the issuance of a hearing decision.

3. Accepting the Premature Hearing Request

If the initial SSI determination has not been reconsidered or the claimant is appealing a revised determination that requires a continuation of payment at the established rate, and the claimant wants to request a hearing, explain to the claimant that reconsideration is the next step in the administrative appeals process. If he/she still wants to file a request for hearing, allow him/her to execute an HA-501-U5 (Request for Hearing).

4. Processing the Premature Hearing Request

a. Upon Receipt of the Hearing Request

Attach an RC to all copies except the appellant's, which contains a brief statement of the FO explanation and indicates why he/she insisted on filing for a hearing before having a reconsideration. Send the claims folder copy of the SSA-636-U3 (Transmittal Notice of Hearing Case) without the claims folder but with the certification in d. below, if:

• No reconsideration has been requested; or

• A reconsideration is in process but a determination has not been made; or

• A reconsideration request was not timely filed and a good cause extension was not granted.

b. If an Unfavorable Reconsidered Determination Is Expected Within 3 Days

Process the determination.

Model the notice after the SSA-L8456-U2 or SSA-L8457-U2 except for the language under the caption, “Do You Disagree With the Decision?” Substitute the preprinted language with paragraph ALSM 50 in NL 00804.224.

Then, prepare the claims file as indicated in SI 04030.030B.1. and forward it to the HO.

c. If a Favorable Reconsidered Determination Is Expected or An Unfavorable Reconsideration Determination Is Expected But the Reconsideration Will Not be Completed in 3 Days

Do not delay processing the SSA-636-U3; forward it immediately with the RC but without the claims file to the HO.

NOTE: The individual can then decide whether he/she wishes to request a hearing again, after notice of the ALJ's dismissal of the premature hearing request and receipt of the favorable reconsideration determination.

If the individual did not file a timely request for reconsideration, show this on the SSA-636-U3, as indicated below, and include the file in the material forwarded to the HO.

d. In Those Cases Where the SSA-636-U3 Is Forwarded to the Hearing Office

Enter the following certification under “Remarks:”

“The undersigned, an employee of the Social Security Administration, certifies that on (date), notice was mailed to (name of appellant) that it was determined (issue) and he/she was advised of his/her right to request a reconsideration if he/she disagreed with the findings. On (date), (Mrs.), (Ms.), (Mr.) (name of appellant) requested a hearing with respect to the above determination. The undersigned further certifies that the appellant (has a request for reconsideration pending on which no determination has been made) (has not requested reconsideration of the initial determination) (did not timely request a reconsideration of the determination).”

e. In cases involving medical issues, add the following to the above certification: “ODIO action awaits a copy of your dismissal order.”

Complete the SSA-636-U3 in all other respects as indicated in GN 03103.110, and distribute copies of the form as explained in that section.

f. If the ALJ Dismisses the Hearing Request

The ALJ will advise the appellant that he/she has no jurisdiction to hold a hearing since the initial determination has not been reconsidered by SSA. At that time, update the MSSICS appeal system concerning the appeal. Do not take any final related action pending the ALJ action on the hearing request. Upon receipt of notice of the ALJ action, complete any pending action and/or consider any additional evidence or information submitted.

5. Informal Requests for Hearing

a. Definite Request in Letter from the Appellant, another Party or a Representative of Either

Prepare a Form HA-501-U5.

• Type the name of the person making the request in the space for signature.

• Enter under “reason for disagreement” that the request was made in a letter, from whom the letter was received, and the date of the letter.

• Attach the original letter to the original HA-501-U5, and a legible copy of the letter to each copy of the HA-501-U5 unless the letter is of a confidential nature; e.g., correspondence from a member of Congress.

• When a “confidential” letter constitutes a request for a hearing, include on the HA-501-U5 an explanatory statement along the following lines: “Senator John Smith's letter dated September 23, 1989, on behalf of (Name of Appellant).”

• Attach the incoming letter from the member of Congress to the “claims file” copy of the HA-501-U5 but do not make copies of the letter.

  NOTE: The ALJ decides whether it is proper to include the letter from the member of Congress in the official record.

• A congressional letter may be only an inquiry. However, if it clearly originated with the appellant and implies a request for appeal, infer that the appellant has requested a hearing.

• Distribute the HA-501-U5 copies immediately as shown in GN 03103.020 and GN 03103.080.

  NOTE: The date of receipt of the letter or mailing date is considered the date of filing the hearing request.

b. Letter Asks for Hearing Form

Send the individual an HA-501-U5.

Include an SSA-1696-U3 (Appointment of Representative) for completion, if the individual has a representative, and the SSA-1696-U3 has not already been filed.

6. Nonmedical Issues

Process as described in GN 03103.020B. and GN 03103.130 or SI 04030.040C.5. except that if:

a. Fully Favorable Action is Possible

• Proceed with award or corrective action;

• Add a paragraph to the award notice which advises the appellant that we have reviewed the claim again, and he/she has the right to ask the ALJ to go ahead with the hearing request if he/she disagrees with our decision; and

• Send the HO a copy of the award notice sent to the claimant.

b. Partially Favorable Action is Possible

• Proceed with award or corrective action;

• Add a paragraph to the award notice which tells the appellant that we have reviewed the claim again and revised our decision. Also tell the appellant that the ALJ will go ahead with the hearing unless he/she withdraws the request; and

• Send the file to the HO with a copy of the award notice sent to the claimant.

7. Medical Issue Cases

Send these cases to the HO, since the effect of any additional medical evidence is not reconsidered by the FO or DDS. (See DI 12010.015 and DI 12010.020 for informal remand procedures in SSI disability cases).

8. Routing the Case to the ALJ

Forward the file to the HO by Form SSA-636-U3 if the hearing request is filed timely.

9. Referring Hearing Requests That Are More Than 5 Days Late

If the appellant's claim cannot be satisfied in full from the evidence then of record, prepare the claims file (see SI 04030.030) and forward it to the HO. Annotate block 11 of form HA-501-U5 to show request was not timely filed. See GN 03103.110 for instructions on the completion of the SSA-636-U3.

See GN 03103.220 for procedure when a request for hearing is not filed timely.

See subsection 13, below, if the appellant submits new evidence.

10. Processing Withdrawal Requests

Prepare a sufficient number of copies of the request so it may be given the same distribution as the HA-501-U5, and forward the original to the HO. If the claims file has not been sent to the HO when the request for withdrawal is received in the FO, prepare a Form SSA-636-U3 to transmit the file to the HO.

If the person requesting withdrawal is the only appellant, or if all parties who requested a hearing also request withdrawal, enter under “Remarks” on the Form SSA-636-U3: “Appellant has withdrawn request for hearing.” If all parties who requested hearing do not consent to the withdrawal, prepare the transmittal in the usual manner for the HO.

11. Appellant Dies While Hearing Request Is Pending

Notify the ALJ and input a death notice to the system.

A surviving spouse or other person who may potentially qualify to receive the underpayment may pursue the hearing as a substitute party.

NOTE: If there is no surviving spouse or other party eligible to receive the underpayments, and if there are no interim assistance, the ALJ will dismiss the hearing request.

If the case involves a disability issue, also ascertain the cause of death and so notify the ALJ, as it may affect the outcome of the hearing.

12. Good Cause for Failure to Appear

If the party contacts the FO, help him/her prepare a statement about his/ her reason(s) for not appearing at the scheduled hearing, and for not notifying the ALJ that he/she would not appear. Send the statement to the ALJ.

13. Revision After Dismissal

If the claimant submits new evidence, review the case folder and evaluate the new evidence to see if the reconsidered determination can be reopened and revised under the rules of administrative finality. (See SI 04070.000 ff.)

If revision is warranted, and the reconsidered determination may be reopened, handle the case as if no hearing had been requested; i.e., effectuate award, etc.

If the reconsidered determination is not revised or may not be reopened, explain that the evidence does not affect SSA's prior determination, but do not include a hearing paragraph in the letter to the claimant.