TN 21 (07-23)

DI 33015.015 Conducting the Disability Hearing

This section addresses conducting disability hearings at the reconsideration level of administrative review. See DI 33001.001A.3. for information about when a disability hearing is available to a beneficiary (or recipient).

A. Policy

1. Disability hearing officer (DHO) responsibilities

The DHO is responsible for:

  • maintaining the proper pace and decorum in the hearing,

  • conducting the hearing in a thorough, professional, fair, and efficient manner, and

  • ensuring the beneficiary (or recipient) or appointed representative has a sufficient opportunity to present evidence and make statements about the case.

NOTE: Although the DHO must allow a beneficiary (or recipient) or appointed representative sufficient opportunity to present evidence and make statements about the case, the DHO is responsible for controlling the conduct of the proceeding.

2. Audio recordings

The Social Security Administration’s (SSA) policy is that there will be no “official” recorded transcript of the hearing. However, the DHO cannot preclude beneficiaries (or recipients) or appointed representatives from recording the proceeding.

Occasionally, the DHO may wish to make an unofficial recording of a hearing. The DHO must obtain the consent of the beneficiary (or recipient) and appointed representative prior to making the recording.

NOTE: See C.2.b. below if the hearing is recorded.

3. Hearing Format

Form SSA-1204-BK (for disabled children (DC) under age 18) or Form SSA-1205-BK (for other cases, including age-18 redeterminations) is the DHO's primary guide for conducting the disability hearing regardless of whether the beneficiary (or recipient) is represented. These forms provide a structured format for the hearing, assist in preparing the determination, and provide the best record of what occurs at the disability hearing.

The DHO is not bound by the order of the questions on the form, nor are they restricted to those questions. The questions represent the basic information to be obtained, but the DHO should ask follow-up questions to elicit all relevant information.

NOTE: If the hearing involves both a disabled minor child's (DMC) claim (Title II), and a DC (under age 18) claim (Title XVI), the DHO should use the SSA-1204-BK as the guide for conducting the hearing. The DHO should ask additional questions as needed to complete the sequential evaluation for the Title II claim. For example, the DHO may need to ask additional questions relevant to assessing the beneficiary's (or recipient's) residual functional capacity.

B. Description of forms

The Forms SSA-1204-BK and SSA-1205-BK contain the following three parts:

  • Part 1 - for recording identifying information.

  • Part 2 - for recording background information.

  • Part 3 - for recording issues pertinent to the hearing determination.

C. Hearing procedure

1. Before the hearing begins

Before the hearing begins, have materials ready, e.g., Summary of Evidence, claims folder, and Form SSA-1204-BK or SSA-1205-BK, as appropriate.

Provide the beneficiary (or recipient) and appointed representative an opportunity to ask any questions concerning the review of the claims folder, if they have not already had an opportunity to ask questions.

NOTE: For more detailed instructions on arrival to the hearing and reviewing the claims folder, please see DI 33015.001 Arrival of Beneficiary (or Recipient) and Representative at Disability Hearing Unit (DHU) and DI 33015.005 Beneficiary (or Recipient) and Representative Review of Claims Folder.

2. Beginning the hearing

a. Introduction

Make a clear introductory statement such as:

“Good morning/afternoon. My name is _______. I am a disability hearing officer employed by the State of ______________(Social Security Administration, if applicable). I have had no previous involvement with your case. It is my responsibility to conduct a hearing for people who have been receiving disability benefits from the Social Security Administration and who disagree with the determination that they are not now disabled. After this disability hearing, I will make a new determination about whether you continue to be disabled.”

“The basic purpose of the disability hearing is to give you a chance to explain why you do not agree with the determination that you are not now disabled under the Social Security Act. Disability, under Social Security, basically means that your condition(s) prevents you from doing substantial work (results in marked and severe functional limitations for DC claims). You will have the opportunity to offer your own interpretation of the evidence in your claims folder. You will also be able to submit new evidence, including your own testimony and the testimony of people who know about your medical condition(s). You also have the right to question any witness present.”

“After the hearing is over, I will make a new determination as to whether or not you are now disabled under the Social Security Act.” (In concurrent Title II/XVI cases, make sure the beneficiary (or recipient) understands the determination will cover both titles.)

“This hearing today is not like a court hearing where more formal procedures are used. You should feel free to offer any comments or to ask any questions you might have, and to describe things in your own terms in a way that is comfortable for you.”

“I must remind you that you are required by law to provide accurate and complete information to the best of your ability.” (At this point, the DHO will raise their right hand in administering the oath and ask those who will be testifying at the hearing to do likewise.)

“Do you promise to tell the truth to the best of your ability?”

“I will be taking notes and completing a form as we proceed. This form will help me to prepare my determination after the hearing is over. It will also help ensure that we cover all of the questions and issues in your case in the time allotted.”

“Do you have any questions so far?”

b. Audio recording

If an audio recording is made of the hearing (see A.2. above), the DHO must state, at the commencement of the audio recording, that they are making an unofficial recording of the proceedings, which will not become part of the record.

c. 20-Day advance notice waived

If the beneficiary (or recipient) waived their right to a notice of hearing mailed at least 20 days before the date of the hearing, mention the waiver in the opening statement.

d. Right to appoint a representative

The DHO should remind an unrepresented beneficiary (or recipient) that:

  • they have a right to be represented,

  • there are groups that will provide free legal services or only charge a fee if the beneficiary (or recipient) wins their appeal, and

  • the hearing can be rescheduled if the beneficiary (or recipient) wants to obtain representation.

If the beneficiary (or recipient) elects to proceed without an appointed representative, the DHO should note on the form that the DHO advised the beneficiary (or recipient) of their right to an appointed representative, and elected to proceed without an appointed representative.

3. During the hearing

  1. a. 

    Complete the questions of the SSA-1204-BK or SSA-1205-BK, providing detailed explanations as indicated.

  2. b. 

    Enter the name and relationship of a parent, payee or guardian who will be testifying on the beneficiary’s (or recipient’s) behalf, as appropriate.

  3. c. 

    Use the "additional issues" section to address any additional pertinent issues, such as a new claim, section 301 continued payments, or drug addiction or alcoholism, not covered elsewhere on the form.

  4. d. 

    Enter "N/A" for any questions not addressed or not pertinent to the hearing.

  5. e. 

    Explain that the beneficiary's (or recipient's) disability was found to have ceased as of the date shown. (Modify this explanation as appropriate in adverse reopenings of initial claims.) Be sure this is the beneficiary's (or recipient's), parent's, etc., understanding as well, even though they do not agree with the cessation (reopening) determination.

  6. f. 

    Remember that a DHO must function as an impartial decisionmaker. Although a beneficiary (or recipient) may expect the DHO to provide a detailed rationale for the cessation or to advise them on whether to proceed with an appeal, the DHO must not function as an advocate for the beneficiary (or recipient) or the government. While it is appropriate to explain terms, and to give a general explanation of disability requirements, avoid justifications or criticisms of the disability program.

  7. g. 

    Make sure to address all pertinent issues and avoid unnecessary repetition in the hearing.

  8. h. 

    Thoroughly explain all terms used (e.g., comparison point decision) and answer all questions during the hearing. Explain or rephrase questions as needed during the hearing.

  9. i. 

    Permit the beneficiary (or recipient) and appointed representative to comment on the evidence in the claims folder in order to provide their interpretation as well as to explain any conflicts that may exist in the medical evidence. This is a very important part of the disability hearing process because it is the first opportunity the beneficiary (or recipient) has to challenge the cessation at a hearing.

  10. j. 

    Provide assistance, without appearing to defend the unfavorable determination or information in the medical evidence of record, if the beneficiary (or recipient) needs help to understand the evidence and the significance of their own interpretation of it. If they have no comments, document that in the appropriate space on the form.

  11. k. 

    See DI 33015.030 for the DHO's responsibilities in deciding how to treat information supplied by the beneficiary (or recipient) at the hearing concerning evidence or sources of evidence other than those available in the claims folder or presented at the hearing.

  12. l. 

    Allow witnesses, presented by the beneficiary (or recipient), the opportunity to testify at the hearing. Offer the beneficiary (or recipient) or appointed representative the opportunity to examine witnesses.

  13. m. 

    Document any observations and important notes.

4. Concluding the hearing

  1. a. 

    Conclude the hearing by allowing the beneficiary (or recipient) and appointed representative to make a closing statement and to present their view fully, but do not allow irrelevant or repetitious discussions.

  2. b. 

    Place any new information the beneficiary (or recipient) or appointed representative provides (e.g., statements about daily activities, pain, etc.) in the appropriate space on the form with an annotation that the information was provided by the beneficiary (or recipient) or appointed representative.

  3. c. 

    Answer disability-related questions about the case, and refer beneficiaries (or recipients) to the field office for detailed explanations of other issues, such as payment questions.

  4. d. 

    Provide the beneficiary (or recipient) with an approximate timeframe for issuing the DHO's determination. Also, advise them about the possibility of their case being randomly selected for a quality review by the state or federal review component. Inform them that if the state or federal review component selects the case for quality review (and the DHO has no way to determine if it will be), the determination will not be issued until the review has been completed.

  5. e. 

    Inform the beneficiary (or recipient) that if they disagree with the determination, they have a right to request a hearing with an administrative law judge. The determination notice will explain the appeal rights.

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DI 33015.015 - Conducting the Disability Hearing - 07/28/2023
Batch run: 07/28/2023