I-2-1-82.Claimant Waives the Right to Appear at the Hearing
Last Update: 11/20/18 (Transmittal I-2-221)
A claimant may waive the right to appear at a hearing and request that an administrative law judge (ALJ) decide the case based on the evidence of record. A waiver of the right to appear at a hearing must be in writing and signed by the claimant. Any waiver must be made voluntarily and knowingly, as defined in Social Security Ruling 79-19: Titles II, XVI and XVIII: Waiver of Personal Appearance at a Hearing.
While useful in assessing the claimant's intent, the checkbox in question six in form HA-501-U5 “Request for Hearing by Administrative Law Judge” that states, “I do not wish to appear at a hearing and I request that a decision be made based on the evidence in my case. (Complete Waiver Form HA-4608)” is not sufficient to show that the claimant “knowingly” submitted a waiver.
An ALJ may schedule a hearing even when a claimant waives his or her right to an appearance at a hearing, if the ALJ believes a personal appearance and testimony from the claimant are necessary to decide the case. See 20 CFR 404.950(b) and 416.1450(b), and Hearings, Appeals and Litigation Law (HALLEX) manual I-2-6-1. For additional instruction, see subsection D below.
B. Receipt of Waiver
If a claimant marks the checkbox in question six in the request for hearing (see subsection A above) or states in another writing that he or she waives the right to appear at a hearing, hearing office (HO) staff will obtain written documentation from the claimant. HO staff may use form HA-4608 “Waiver of Your Right to Personal Appearance Before an Administrative Law Judge.” HO staff can access form HA-4608 through the Document Generation System by clicking on “Correspondence,” “Prehearing” and “Waiver of Oral Hearing.” HO staff will add form HA-4608 and any correspondence in the claim(s) file to help establish that the claimant submitted the waiver voluntarily and knowingly.
A form HA-4608 is not required for a claimant to waive his or her right to appear at a hearing. It is acceptable if the claimant elects to respond in a different signed writing that provides the same information.
Written documentation of the claimant waiving the right to representation is not required if it was provided during a prehearing conference, because the recording from the conference is part of the record. See HALLEX I-2-1-75 D.
Even when a claimant voluntarily and knowingly waives his or her right to a hearing, an ALJ must afford the claimant the opportunity to submit written comments, or respond to interrogatories or other evidence, unless any of the conditions in subsection E below apply that do not require proffering evidence. See generally 20 CFR 404.929, 404.935, 416.1429, and 416.1435; and HALLEX I-2-5-29.
C. Prehearing Conference (PHC) and Prehearing Development Contacts (PHDC)
Even if a claimant waives his or her right to appear at a hearing, an ALJ or an authorized designee may schedule a PHC, when necessary, to narrow and clarify issues. See HALLEX I-2-1-75. HO staff may also contact an unrepresented claimant prior to a hearing through a PHDC. See HALLEX I-2-1-80 A.2.
D. Hearing Despite Waiver
If an ALJ schedules a hearing despite a claimant's waiver of the right to a hearing, the ALJ will issue a detailed notice of hearing to specify the facts and issues that require development at a hearing. If the ALJ holds the hearing, despite the waiver, and neither the claimant nor any appointed representative appear, the ALJ may not dismiss the request for hearing. See HALLEX I-2-4-25 F. Rather, an ALJ must decide the case based on the evidence of record. An ALJ will explain in the decision:
The reason for requesting the claimant's appearance and the ALJ's efforts to put the claimant on notice of the need for the hearing; and
Any adverse presumptions regarding the weight of the evidence that arose from the claimant's refusal to appear.
If circumstances suggest that a representative routinely advises his or her clients to waive the right to appear at a hearing or to ignore a scheduled hearing despite the waiver, an ALJ will consider whether it would be appropriate to submit a referral to the Office of the General Counsel under HALLEX I-1-1-50 for possible representative misconduct.
E. Proffering Evidence
1. Post-hearing Evidence
If an ALJ schedules and holds a hearing despite the claimant's waiver of the right to appear at a hearing, the ALJ must proffer any evidence received after a hearing, unless the claimant also waived the right to examine the evidence or to appear at a supplemental hearing. See subsection B above and HALLEX I-2-7-1, I-2-7-15, and I-2-7-30.
2. Vocational Expert and/or Medical Expert Testimony
If an ALJ schedules and holds a hearing despite a waiver, the ALJ may need to proffer testimony received from a vocational expert and/or medical expert(s) at the hearing, depending on whether the claimant had notice of the expert testimony prior to waiving his or her right to appear at the hearing.
If the claimant waived his or her right to appear at the hearing after receiving a notice of hearing informing him or her that a vocational expert and/or medical expert(s) is scheduled to appear, the ALJ will not need to proffer testimony received from such expert(s) noticed to appear. See subsection B above.
If the claimant waived the right to appear at the hearing before receiving notice that a vocational expert and/or medical expert(s) is scheduled to appear, and the claimant was not subsequently informed of such potential expert testimony pursuant to subsection B above, the ALJ must proffer the testimony by such expert(s), following the procedures in E.1 above. However, if the claimant reaffirmed his or her waiver to appear after receiving notice of such expert(s) scheduled appearance, the ALJ will not need to proffer testimony from such expert(s).