Last Update: 11/20/18 (Transmittal I-2-221)
As provided in 20 CFR 404.961 and 416.1461, an administrative law judge (ALJ) may decide on his or her own authority, or at the request of any party to the hearing (see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-1-45), to conduct a prehearing conference (PHC) to facilitate the hearing or the hearing decision.
The ALJ may either conduct the PHC or select an authorized designee to conduct the PHC. If an ALJ selects an authorized designee, the ALJ must provide the authorized designee with specific instructions regarding the purpose of the PHC.
An ALJ will not dismiss a request for hearing based solely on a claimant's failure to attend a PHC.
The purpose of a PHC is generally to explain or discuss with the claimant:
the right to representation, pursuant to HALLEX I-2-1-80 A, if he or she is unrepresented;
the hearing process;
what is needed for a finding of disability;
what is in the claim(s) file;
that medical treatment record(s) needs to be up-to-date and when applicable, that the claimant needs to submit a new form HA-4631 “Claimant's Recent Medical Treatment,” HA-4632 “Claimant's Medications,” or SSA-827 “Authorization to Disclose Information to the Social Security Administration” (for more information about obtaining a new form SSA-827, see HALLEX I-2-5-14 A);
that any recent work or school activity must be reported to the Social Security Administration (SSA), and when applicable, any new work activity must be recorded in a form HA-4633 “Claimant's Work Background”;
any particular issue for which an ALJ or authorized designee requested the PHC; or
additional information that is necessary for an ALJ to determine the next appropriate action or to come to an agreement on an issue(s).
During a PHC, only an ALJ can issue an order affecting the outcome or merits of a claim(s) (see, e.g., subsections D and E below). For example, an ALJ can agree to dismiss the title II portion of a concurrent claim, if the claimant amends his or her onset date after an expired date last insured and the claimant requests to withdraw the request for hearing on that portion of the claim pursuant to HALLEX I-2-4-20. If an authorized designee conducts a PHC where an agreement or the issuance of an order affecting the outcome or merit(s) of a case is needed, the ALJ will further evaluate the claim and take any necessary action.
C. Scheduling a PHC
An ALJ or hearing office (HO) staff will decide, after considering the totality of circumstances, whether the PHC will be in person, by video teleconferencing, or by telephone. Using the appropriate templates in the Document Generation System, an ALJ or HO staff will notify the claimant in writing of the time, place, and purpose of a PHC at least seven business days before a scheduled PHC date, unless all parties have indicated in writing that they waive the right to such advanced written notice of a PHC. An ALJ or HO staff will ensure this writing is associated with the record and will note the date and time of the scheduled PHC in a Remark in the Case Processing and Management System (CPMS).
An ALJ or HO staff may grant a request to postpone a PHC. However, except in unusual circumstances, multiple requests to postpone a PHC will not be granted.
An ALJ or HO staff may send forms and information to the claimant with a PHC notice.
If the record shows that a claimant party has a limited proficiency in English when an ALJ or HO staff schedules a PHC, see HALLEX I-2-1-70. If the record shows that a hearing-impaired party may require an interpreter, see HALLEX I-2-1-72. For other possible accommodations when scheduling a PHC, see HALLEX I-2-0-8.
To avoid the possibility of any inadvertent disclosure of personally identifiable information (PII), an ALJ or authorized designee will only hold a PHC with one claimant at a time. For more information about PII, see HALLEX I-1-4-5.
If an ALJ or authorized designee is prejudiced or partial with respect to any party or has any interest in the claim(s), the ALJ or authorized designee must disqualify or recuse himself or herself from presiding over a PHC and when applicable, adjudicating the claim (see HALLEX I-2-1-60).
D. Conducting a PHC
Each PHC must be recorded using Digital Recording Acquisition Project equipment. An ALJ or HO staff must ensure the recording becomes part of the official record.
During a PHC, an ALJ or authorized designee may discuss with the claimant or any appointed representative, the merits or strength of the claimant's claim(s), and the likelihood of an award or denial of benefits. During a PHC, an ALJ or authorized designee must neither encourage nor discourage representation (see also Program Operations Manual System GN 03910.010).
Generally, an ALJ or authorized designee will begin the PHC with an opening statement that provides the following information:
an explanation that the PHC will be recorded (and why);
verification of the claimant's contact information;
a brief statement explaining how the PHC will be conducted, the objectives of the PHC, and what issue(s) will be discussed; and
if the claimant appears to be unrepresented, verification that the claimant is unrepresented, and an explanation of the right to representation pursuant to HALLEX I-2-1-80.
If a claimant asserts he or she is represented, but the claim(s) file does not yet contain the appropriate written documentation, an ALJ or authorized designee will not proceed with a PHC. However, the ALJ or authorized designee will explain that in order to be recognized as a representative, the representative must submit a completed form SSA-1696 or other equivalent written statement to SSA (see HALLEX I-1-1-11).
During a PHC, the claimant has the opportunity to ask questions within the scope of a PHC. Unless a party to the PHC objects, an ALJ who conducts a PHC may issue an on-the-record order and reiterate all agreement(s) and action(s) resulting from the PHC. If an ALJ agreed to take certain action(s) or issue an order after a PHC, the ALJ must explain on-the-record that he or she will exhibit any order(s) or agreement(s) and make them part of the record and that any agreements on issue(s) or action(s) are binding.
E. After a PHC
After a PHC, an ALJ or HO staff will complete a form SSA-5002 “Report of Contact” to document the date of the PHC, the claimant's name, and summarize any action(s) taken. If an ALJ agreed to take a certain action(s) or issue an order during the PHC, the ALJ must provide a written summary that is proffered to the claimant and any appointed representative. For prehearing proffer procedures, see HALLEX I-2-5-29.
An ALJ or HO staff will also add a remark in CPMS documenting whether the claimant attended the PHC and whether he or she was informed of the right to representation, pursuant to the procedures set forth in HALLEX I-2-1-80 A.1.