If the record shows that the claimant, during a PHC, PHDC, or CEO,
was previously informed of the right to representation, as described in A
above, the ALJ will ordinarily deny any request for postponement to obtain
a representative, absent good cause. However, the ALJ must confirm on
the record that the claimant was advised of the right to representation
at a PHC, PHDC, or CEO, before denying the postponement request. If
the record does not show that the claimant was
previously informed of the right to representation at a PHC, PHDC, or CEO,
as described in subsection A above, an ALJ must inform the claimant of
the right to representation and will typically grant a claimant's first
request for a postponement to obtain a representative.
Notwithstanding prior notification of the right to representation,
an ALJ will also typically grant a claimant's first postponement request
when:
•
The claimant is unrepresented and appears at a hearing
with an unregistered individual that they wish to appoint as their
representative, as described in B.2 above, to give the individual the
opportunity to register and to submit a valid Form SSA-1696;
or
•
The claimant is unrepresented and attempts to appoint a
registered representative with an invalid Form SSA-1696
that has not yet been corrected prior to the start of
the hearing, to give the registered representative an
opportunity to submit a valid Form SSA-1696.
ALJs will generally only provide the
claimant one postponement opportunity in such situations, i.e., where
the claimant was advised of the right to representation prior to the
hearing but appears with an unregistered individual or attempts to
appoint a registered representative with an invalid SSA-1696, absent
extraordinary circumstances.
When considering whether to grant a postponement request, the ALJ
must consider the totality of the circumstances including any mental
limitations that may impair the claimant's understanding regarding the
right to representation or any other factors that may indicate good
cause (see, e.g., Social
Security Ruling 91-5p, Titles II and XVI: Mental Incapacity and
Good Cause for Missing the Deadline to Request Review and HALLEX HA 01205.060). For
example, an ALJ may be more likely to grant a postponement when a claimant
has an intellectual disability that may have prevented the claimant from
understanding the right to representation. An ALJ may also consider that
the claimant made a good faith effort to obtain a representative but was
unable to find a representative willing to accept an appointment. However,
in all cases, the ALJ will consider the totality of the circumstances in
deciding whether to grant a postponement. If the ALJ denies the request
for a postponement, the ALJ will explain to the claimant on-the-record
at the hearing the reasons for denying the request.
If an ALJ grants the claimant a postponement to obtain a
representative, the ALJ will:
•
Confirm that the claimant has been advised of the right
to representation;
•
Explain that the hearing office can provide
information about organizations that provide free legal services (this
information is generally included with the SSA-HA-L2 Request for Hearing
Acknowledgment Letter), unless the claimant has indicated they already
have a representative in mind and the representative has agreed to take
the case;
•
Advise the claimant to notify the hearing office as soon
as possible if representation is obtained;
•
Advise the claimant that the hearing office will send
notification of the new hearing date and time;
•
Advise the claimant that normally only one postponement
is permitted to obtain representation; and
•
Advise the claimant that if the claimant appears at the
rescheduled hearing without a representative, the hearing will proceed
without the representative, unless there is good cause for an additional
postponement.