I-2-1-82.Claimant Waives the Right to Appear at the Hearing
Last Update: 4/1/16 (Transmittal I-2-169)
A claimant may waive the right to appear at a hearing and request that the 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 the claimant must sign the writing. A waiver must also 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.
Form HA-501, Request for Hearing by Administrative Law Judge, includes a checkbox that says “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)”. While useful in assessing the claimant's intent, this checkbox does not show the claimant “knowingly” submitted a waiver. Therefore, when this checkbox is marked, hearing office (HO) staff will take additional action, as explained in subsection B below.
An ALJ may schedule a hearing notwithstanding the waiver if he or she believes a personal appearance and testimony from the claimant are necessary to properly decide the case. See 20 CFR 404.950(b), 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 states in the request for hearing or other writing that he or she waives the right to appear at a hearing, the ALJ or the HO staff will take the following actions:
If the claimant is unrepresented, advise the claimant of the right to representation.
Advise the claimant of the advantages of appearing at a hearing (including the opportunity to provide testimony regarding his or her impairment(s) and to question witnesses);
Ensure the claimant is fully advised of the possible consequences of his or her waiver; and
Explain that even though he or she has waived the right to appear, the ALJ may schedule and conduct a hearing if the ALJ deems it necessary.
If the claimant still elects to waive the right to appear at a hearing, HO staff will obtain written documentation from the claimant using the form HA-4608, Waiver of Your Right to Personal Appearance Before an Administrative Law Judge. HO staff can access the HA-4608 through the Document Generation System by clicking on “Correspondence,” “Prehearing” and “Waiver of Oral Hearing.” HO staff will associate the form and any correspondence with the record to help establish that the claimant submitted the waiver voluntarily and knowingly.
It is acceptable if the claimant elects to respond in a signed writing rather than by completing and returning the HA-4608.
Even when a claimant voluntarily and knowingly waives the right to a hearing, the ALJ must still afford the claimant the right to submit written comments, responses to interrogatories, or other evidence. See generally HALLEX I-2-5-29.
C. Prehearing Conference
D. Hearing Despite Waiver
When an ALJ schedules a hearing after the claimant has waived 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 an ALJ schedules and holds a hearing despite a waiver, the ALJ must proffer any evidence received at the hearing, unless the claimant also waived the right to examine the evidence or to appear at a supplemental hearing. See HALLEX I-2-7-1, I-2-7-15, and I-2-7-30.
If the claimant or the appointed representative, if any, does not appear at the scheduled hearing, the ALJ may not dismiss the request for hearing. See HALLEX I-2-4-25 F. Rather, the ALJ must decide the case based on the evidence of record. The 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, etc., that arose from the claimant's refusal to appear.
If circumstances suggest a representative is routinely advising his or her clients to waive appearance at a hearing or to ignore a scheduled hearing despite the waiver, the ALJ will ensure the claimant received notice that failure to appear at the scheduled hearing could jeopardize successful resolution of the claim and take any other necessary action to adjudicate the claim. The ALJ will also consider submitting a referral to the Office of the General Counsel under HALLEX I-1-1-50 for possible representative misconduct.