20 CFR 416.1423, 416.1450, and 416.1453

SSR 76-43

The claimant filed his application with the State after June 1973 for Aid to the Disabled and was converted to the Federal program in January 1974. Subsequently he was notified he did not meet Federal standards to receive SSI payments based on disability. He requested a reconsideration of the determination; such reconsideration upheld the initial determination. The claimant then requested a hearing and his benefits were continued pending a decision on his claim. He failed to acknowledge receipt of Notice of hearing and did not respond to other attempts to contact him. Held, the claimant's request for hearing is dismissed as abandoned in accordance with Regulations No. 16, section 416.1450. Further held, the reconsideration determination is binding and becomes the final decision of the Secretary of Health, Education and Welfare.

The claimant filed his application for Aid to the Disabled with the State after June of 1973. He was determined to be disabled and entitled to disability benefits from the State in October of 1973. On January 1, 1974, claimant was converted from the State to the Federal disability program. On September 1, 1974, the claimant was notified that since he had not received any disability check from the State for any month prior to July 1973 and since it had been determined that he did not meet the Federal standard of disability, then he was not entitled to receive any supplemental security income benefits. He requested a reconsideration of that determination on October 7, 1974. Claimant was advised on or about November 14, 1974, that his original denial had been affirmed and the Social Security Administration terminated his benefits at that time.

On May 29, 1975, the claimant was notified that he had been receiving supplemental security income benefits for the months of December 1974 through the date of the notification because the Federal court in the case of Buckles v. Weinberger, 398 F. Supp. 931 (1975), held that the Social Security Administration had used improper procedures to terminate his benefits. Claimant was further instructed that if he still disagreed with the initial and reconsidered determinations, he could request a hearing and his benefits would be continued through the rendering of a decision on his claim. The claimant filed a timely request for a hearing on June 27, 1975. A notice of hearing was mailed on November 7, 1975, to the same address that the claimant listed in his request for hearing dated June 27, 1975. Prior to the hearing, a subsequent letter was mailed to the claimant on November 28, 1975. This letter was mailed to the claimant because he had not returned a card indicating whether he would appear at the hearing nor had he contacted the Hearing Examiner as to his intentions. The claimant did not appear at the hearing nor did he respond to the letter dated November 28, 1975.

On December 19, 1975 a notice to show cause for failure to appear was mailed to the claimant by certified mail, return receipt requested. The certified letter was returned with the notation "refused" stamped on it. The certified letter had been mailed to the address listed by the claimant on his request for hearing.

The appropriate sections of Regulations No. 16 as apply here are as follows:

§ 416.1423 Effect of a reconsidered determination. The reconsidered determination shall be final and binding upon all parties to the reconsideration unless a hearing is requested and a decision rendered or unless such determination is reopened and revised, pursuant to § 416.1475 and § 416.1477, or unless the expedited appeals process is used, in accordance with § 416.1424 et. seq.

§ 416.1450 Dismissal by abandonment of party. With the approval of the presiding officer, a request for hearing may also be dismissed upon its abandonment by the party or parties who filed it. A party shall be deemed to have abandoned a request for hearing if neither the party nor his representative appears at the time and place fixed for the hearing and either: (a) prior to the time for hearing such party does not show good cause as to why neither he nor his representative can appear; or, (b) within a reasonable period after furnishing of notice to him by the presiding officer to show cause, such party does not show good cause for such failure to appear and failure to notify the presiding officer prior to the time fixed for hearing that he cannot appear.

§ 416.1453 Effect of dismissal. The dismissal of a request for hearing shall be final and binding unless vacated in accordance with § 416.1454.

Pursuant to the above cited sections of the regulations, the Hearing Examiner concludes that the claimant's request for hearing should be dismissed as the claimant has abandoned his request for a hearing.

The dismissal means that the findings in the reconsideration determination are binding on the claimant since no further decision was rendered (Regulations No. 16, section 416.1423). The reconsideration determination affirmed the initial determination which held that the claimant was not disabled.

Since the claimant is in pay status because of the Federal court decision this dismissal means that his benefits should be ceased immediately and it also means that the claimant is considered not to have been disabled for any month after December 1973.

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