Last Update: 12/12/13 (Transmittal I-2-99)
Unless the agency exercises its authority under the pilot program in 20 CFR 404.936 and 416.1436 that began on August 9, 2010, the administrative law judge (ALJ) sets the time and place for the hearing. The ALJ may change the time and place, if necessary. The objective is to hold a hearing as soon as possible after the request for hearing (RH) is filed, at a site convenient to the claimant. The hearing office (HO) staff will telephone hearing participants to ascertain availability before scheduling the hearing.
If a claimant threatens violence against the general public or HO personnel, or has been banned from entering a Federal or Social Security facility, see the instructions for scheduling a hearing in 20 CFR 404.937 and 416.1437 and in Chapter I-1-9 of the Hearings, Appeals and Litigation Law (HALLEX) manual.
A. Determining the Time and Place for Hearing
When an ALJ sets the time and place for a hearing, the ALJ will consider:
the number and types of cases to be set for hearing,
the proximity of the hearing site to the claimant's residence, and
the availability of the claimant, representative, and witnesses on the proposed hearing date.
To the extent possible, the location of the hearing site will be within 75 miles of the claimant's residence. The ALJ also will consider conducting the hearing by video teleconferencing (VTC) or, at the claimant's request, by telephone.
1. Determining the Claimant's Manner of Appearance
The ALJ determines how the claimant's appearance will be made at the hearing, and will notify the claimant of the manner of appearance in the notice of hearing. See 20 CFR 404.936 and 416.1436. The ALJ will also respond to any objections raised by the claimant about the manner of his or her appearance. (See HALLEX I-2-3-10 D in this section). Regardless of a claimant's manner of appearance, the ALJ must inquire fully into all matters at issue and conduct the hearing in a fair and impartial manner. See HALLEX I-2-6-1.
A claimant or other party to the hearing will not be denied the right to a hearing because of geographic considerations. For example, if a person whose rights may be adversely affected by the decision resides in a different HO service area than the claimant, the ALJ may conduct a primary hearing for the claimant who filed the RH, and arrange for the other person to attend the hearing or a supplemental hearing by VTC.
A claimant's confinement in a prison or other institution may require an ALJ to schedule the hearing at the place of confinement, unless other arrangements can be made. Some institutions have VTC technology that can be used to conduct hearings. ALJs are encouraged to pursue this avenue for security reasons, as well as to reduce delays in the hearing that may otherwise occur.
The regulations permit the claimant or any party to the hearing to request to appear at the hearing by telephone. The ALJ will grant the request to appear by telephone if the ALJ determines that extraordinary circumstances prevent the claimant or other party from appearing in person or by VTC. See 20 CFR 404.936 and 416.1436. For example, extraordinary circumstances may exist if there would otherwise be significant delay in adjudicating the case due to incarceration.
Despite these alternatives, there may be circumstances in which the only alternative for scheduling a hearing for a claimant who is confined is to wait until the period of confinement ends. For example, an ALJ may not conduct a hearing by telephone for a confined claimant if he or she objects in any manner to appearing by telephone.
2. Determining the Manner of Appearance by Other Necessary Persons
The ALJ will determine whether any person other than the claimant, including a medical or vocational expert, will appear at the hearing in person, by VTC, or by telephone. The notice of hearing will inform the claimant of the manner of these appearances.
The ALJ will direct a person other than the claimant to appear by VTC or telephone when the ALJ determines the following:
VTC or telephone equipment is available;
Use of VTC or telephone equipment would be more efficient than conducting an examination of a witness or medical or vocational expert in person; and
There is no other reason that VTC or telephone should not be used.
If the claimant objects to any other person appearing by VTC or by telephone, the ALJ will decide the issue, either in writing or at the hearing.
B. Estimating the Time Required for the Hearing
When an ALJ schedules several hearings in succession, the ALJ will estimate the time required for each hearing to ensure that the schedule allows sufficient time for each hearing.
C. Adjourning, Postponing or Continuing the Hearing
An ALJ may postpone a hearing before the time set for the hearing or adjourn a hearing in progress to continue it at a later date. The ALJ will give the claimant reasonable notice of postponement or continuance of a hearing. See HALLEX I-2-3-35.
D. Claimant Objects to the Time or Place of the Hearing
A claimant may object to the time or place of a hearing by notifying the ALJ of the reasons for the objection at the earliest possible opportunity, and the time and place he or she would prefer the hearing to be held. When the hearing is scheduled by video teleconferencing, the claimant has an absolute right to request the hearing be postponed and re-scheduled in favor of an in-person hearing. See 20 CFR 404.936(e) and 416.1436(e). See also HALLEX I-5-1-16 III. B. As explained in subsection A, a hearing by telephone for a confined claimant may not be held if he or she objects in any manner.
Whenever possible, the claimant or the claimant's representative should submit the objection in writing. However, if necessary, the claimant may object by telephone. If a claimant notifies the HO of an objection by telephone, the HO staff must prepare a report of contact and associate it with the claim folder. When a proposed exhibit list is created, the report of contact should be made an exhibit to the claim folder.
For disability claims filed in Region I, a claimant who objects to the time or place of the hearing must notify the ALJ in writing at the earliest possible opportunity before the date set for the hearing, but no later than 30 days after receiving notice of the hearing. The claimant must provide the reason(s) for the objection, and state the time and place he or she wants the hearing to be held. See 20 CFR 405.317.
E. Determining Whether a Claimant Has Good Cause for Objecting to the Time or Place of the Hearing
1. When an ALJ Must Find Good Cause
An ALJ must find good cause for changing the time or place of a scheduled hearing if:
A serious physical or mental condition or incapacitating injury makes it impossible for the claimant or the claimant's representative to travel to the hearing, or a death in the family occurs;
severe weather conditions make it impossible to travel to the hearing; or
the claimant objects to a hearing held by VTC. See HALLEX I-5-1-16 III.B.
2. When an ALJ May Find Good Cause
The ALJ may also find good cause for changing the time or place of a scheduled hearing based on other circumstances. When determining whether a claimant has good cause for objecting based on other circumstances, the ALJ will consider the claimant's reason(s) for objecting, the facts supporting the reason(s), and the effect of the proposed change on the efficient administration of the hearing process.
A change in residence address does not necessarily constitute good cause. See HALLEX I-2-0-70 C for instructions on when a claimant relocates while a hearing request is pending.
When determining the impact that changing the time or place of the hearing would have on the efficient administration of the hearing process, factors the ALJ will consider include, but are not limited to: the impact on other cases awaiting hearing, the cost of implementing the change (e.g., higher expert witness fees or travel expenses), whether the ALJ granted the claimant an earlier change, and whether a change would unnecessarily delay the hearing.
F. ALJ Finds Good Cause to Change the Time or Place of the Hearing
When the ALJ finds that there is good cause to change the time or place of the hearing, the ALJ will reschedule the hearing. The ALJ or the HO staff will notify the claimant and representative of the finding by issuing a new notice of hearing at least 20 days before the hearing. See HALLEX I-2-3-15.
G. ALJ Does Not Find That There Is Good Cause to Change the Time or Place of the Hearing
When the ALJ does not find that there is good cause to change the time or place of the hearing, the ALJ will not reschedule the hearing. The ALJ or the HO staff will notify the claimant and representative of the finding and the rationale for the finding before the hearing. The notification could be either a written notice or via telephone by HO staff, documented in a report of contact. Any documentation will be made an exhibit to the administrative record.
The place of a hearing may not be changed simply because another site would be more convenient for the representative. Rather, the ALJ will consider the instructions in HALLEX I-2-0-70 in determining whether to change the place of a hearing.