TN 2 (02-04)

SI 04020.050 SSI Reconsideration Conferences

A. Definitions

1. Adverse witness

An adverse witness is an individual who has furnished information or evidence to SSA which, if determined to be correct, will result in a reduction, suspension, or termination of the claimant's benefits.

2. Summary record

The summary record is a Form SSA-8450 (District Office Record of SSI Reconsideration) which summarizes the reconsideration results.

NOTE: A summary record is required in non-MSSICS cases only.

3. Courtesy subpoena

A subpoena that is issued when a witness is willing to appear and/or

furnish the requested information but wants a subpoena "for the record" or for his/her "protection."

B. Process

1. Arranging for conferences

As soon as the request is received, the time, date, and place is set.

A notice of the conference is sent to the claimant at his/her last known address (or by personal service), his/her representative and all other parties to the appeal at least 10 days before the conference. The conference may be held earlier if everyone agrees. A written notice should not be sent if the claimant waives his/her right to receive it.

The conference should be scheduled within 15 days after the claimant requests it. At the request of the claimant or at your discretion, you may delay a conference if you believe that the delay will ensure that the conference is conducted efficiently and properly.

NOTE: Generally, the conference should be conducted at an SSA office, either by telephone or in person, whichever the claimant prefers.

However, the conference can be held elsewhere in person if the claimant shows circumstances that make this arrangement reasonably necessary.

2. Informal conference

In addition to following the case review procedures, a claimant and other parties to a reconsideration may present witnesses. A summary record of the conference becomes part of the record in non-MSSICS cases. The official who conducts the conference (the decisionmaker) will make the reconsidered determination.

3. Formal conference

In addition to following the informal conference procedures, the claimant and the other parties to the reconsideration may ask SSA to subpoena adverse witnesses and documents and cross-examine adverse witnesses. The summary record of the conference becomes part of the case record. The official who conducts the conference will render the reconsidered determination.

4. Disability hearing

A recipient who has been receiving benefits because of blindness or disability or other party to the appeal may request a disability hearing (i.e., a DDS face-to-face reconsideration) on an initial determination that he/she is no longer disabled/blind for medical reasons. This is similar to the formal conference.

5. Summary record

The SSA-8450 must be completed in non-MSSICS cases only. It should contain, at a minimum, the following information:

  1. Claimant's name and claim number;

  2. Date and location of the conference or case review;

  3. Statement of pertinent issues;

  4. Whether claimant was represented, and, if so, by whom;

  5. Nature of evidence submitted;

  6. Witnesses presented or cross-examined by claimant or representative; and

  7. Summary statement of other pertinent details of the case review or conference.

C. Background

1. When to consider a subpoena

The subpoena procedure is available to enable the claimant to challenge adverse testimony or evidence used in the formulation of the initial determination. Use of a subpoena in a formal conference will be rare and will probably only occur when the claimant for the first time decides to challenge the initial adverse testimony or evidence on appeal.

2. Purpose of SSI conference (formal and informal)

Both types of conferences afford a claimant an opportunity to present his/her case to the person who will make the reconsidered determination if he/she is dissatisfied with a determination. In PE actions, availability of face-to-face contact at the option of the claimant before a proposed adverse action is a major element of due process of law as it applies to public assistance payments.

3. Cross examination of witnesses

At a formal conference, the claimant has the right to contest the accuracy of the information supplied by an adverse witness through cross-examination. The claimant may ask SSA to produce the adverse witness.

If the witness is reluctant to appear and undergo cross-examination and if the claimant requests, the FO may attempt to secure the appearance of the witness at the conference by subpoena.

D. Procedure -- Preparing for formal and informal conferences

1. Scheduling the conference within 15 days

  • Schedule and hold the conference within 15 workdays after the request is received.

  • Mail or personally give the claimant or representative a written notice (SSA-L8165-U2) in advance of the conference (at least 10 workdays before the conference date).

  • If an oral waiver is obtained, document the RPOC to that effect.

NOTE: The 10 day notice requirement can be orally waived by the claimant if the FO can set up a conference in less than 10 days and the claimant or representative is prepared to participate by that time.

If strictly adhered to, the timeframes allow only 5 workdays to prepare all materials and space, allow the claimant to review the folder, arrange for witnesses, etc., necessary for the conference. Careful but expeditious attention is essential to preparation for the conference.

Schedule and hold the conference, whether by telephone or in person, within 15 days after the request is received. If the claimant agrees, hold the conference at the time the request is made. If the conference cannot be held at once, make arrangements for the claimant to examine the claims folder subject to the rules of disclosure. (See GN 03305.000 regarding rules of disclosure.)

NOTE: This review may take place at any time convenient to both the claimant and the FO.

2. Notice of conference

Send written notice to claimant and claimant’s representative on a Form SSA-L8165-U2 (Important Information) using the following language:

"You asked us to look at your case again and review our finding that (1) . You also asked us to hold a meeting to look at the facts in your case.

"Information About The Meeting

"The meeting will take place on (2) at (3) at the address shown at the top of this page. You may come by yourself or you can bring other people to explain your case.

"What You Need To Do

"Please let us know right away if you cannot come to this meeting or if you need more time to prepare for the meeting."

Fill-ins:

  1. Explain issue being appealed—for example, "you received $400.00 in rental income in April 2002."

  2. Date of conference — in format; June 16, 2003

  3. Time of conference — in format; 2:00 p.m.

3. FO delays conference

At SSA’s discretion or at the claimant’s request, delay the conference if the delay will ensure that the conference is conducted efficiently and properly, e.g., the folder is not readily available or if more development is necessary to accumulate more evidence or information. If a delay is necessary for any other reason, obtain written approval of the FO manager. Follow these procedures if it is obvious that you will not be prepared to conduct the conference within 15 workdays:

a. Immediate favorable determination not possible

Inform the claimant or representative at once, and set a tentative date that is reasonable both for the FO and the claimant.

b. Immediate favorable determination possible

If, during the development of further evidence for a reconsideration conference, you find that a fully favorable reconsidered determination can be rendered without the participation of the claimant or representative at a conference, immediately render that determination through case review. Complete all appropriate MSSICS appeal screens, e.g., ARCN, ARAT, ADIS, etc. For non-MSSICS cases complete all folder documentation required of any case review (including an SSA-8450); notify the claimant at once both orally and in writing (SSA-L8455-U2). Conduct the conference if the claimant still wants one after the determination has been rendered.

4. Claimant requests postponing the conference

a. General

Scheduled conferences may be postponed, but keep the number and duration of postponements to a minimum, especially if payment is being continued pending the reconsidered determination.

Normally, allow only one postponement of no more than 5 working days.

b. If the claimant or representative requests postponement

Agree to the first request for any reason and to additional requests if there is good cause.

If it appears from the circumstances that the claimant or representative is attempting to delay the reconsidered determination without good cause, carefully document the indications on the RPOC. Do not postpone the conference further.

If the claimant or representative should protest the denial of a request for further postponement, tell him/her that the reconsidered determination will be based on the evidence of record. Offer him/her the opportunity to submit additional evidence or information.

c. If the claimant or representative fails to appear without notifying you

The first time that this occurs, reschedule the conference and send a notice to the claimant and representative of the rescheduled date of the conference. Include in this notice a statement that a second failure to appear may result in a case review.

The second time that this occurs, attempt to contact the claimant or representative directly and determine whether there is good cause for failure to appear. If there is good cause, reschedule the conference again at a time that is agreeable to the claimant and representative. If there is not, send the notice in SI 04020.050D.5.

d. Good Cause for postponing conference

In determining whether there is good cause to postpone the conference or for the failure by the claimant or representative to appear at a scheduled conference, take into account any physical, mental, educational or linguistic limitations that the claimant may have, including any lack of facility with the English language.

5. Recipient fails, for a second time, to appear for a scheduled conference

Send a notice on an SSA-L8165-U2 (Important Information) to the claimant and his/her representative, if there is one containing the following language:

We are writing to tell you that we will review (1) Supplemental Security Income (SSI) case without meeting with you.

" (2) asked us to review our decision (3) . You also asked us to hold a meeting to look at the facts in this case.

"Information About The Meeting

"We set up two meetings for you. You didn't come to either meeting, and we didn't hear from you. Our records show that:

  • "the first meeting was set for (4) , and

  • "the second meeting was set for (5) .

"We Will Review (6) Case.

"Since you didn't come to the meetings and we didn't hear from you, we are assuming that you do not want to meet about this case. Therefore, we will review the case without meeting with you.

"Although you will not meet with the person who decides the case, you have the right to review the facts in (7) file. You can contact us to give us more facts to add to the file.

"We will send you another letter when we have decided the case.

"If You Have Any Questions

"If you have any questions, you may call, write or visit any Social Security office. If you visit our office, please have this letter with you and ask for (8) . The telephone number is (9) .

" (10) ."

Fill-ins:

  1. a. your

    b. claimant's name, possessive, in format: "John Smith's"

  2. a. You

    b. claimant's name, in format: "John Smith"

  3. describe the issue being appealed, e.g., "to reduce your/his/her SSI payments"

  4. scheduled date of the first meeting, e.g., July 20, 1992

  5. Scheduled date of the second meeting, e.g., August 25, 1992

  6. a. your

    b.  claimant's last name, possessive, in format: "Mr. Smith's"

  7. a.  your

    b.  claimant's last name, possessive, in format: "Mr. Smith's"

  8. name of field office contact, in format: "Marie Dole"

  9. field office contact's phone number

  10. Optional: Also, if you plan to visit an office, you may call ahead to make an appointment. This will help us serve you more quickly when you arrive at the office.

6. Space and supplies

Conduct the reconsideration conference, especially a formal conference, in private or semiprivate surroundings if at all possible. When scheduling the conference, ensure that space will be available.

NOTE: Local office layout will dictate which office area will be used, but each FO should permanently designate a specific area or room for reconsideration conferences. Management offices and meeting rooms can be suitable for such use.

Before the conference, assemble all of the materials that will be necessary at the conference including:

  • The claims folder;

  • The request for reconsideration;

  • The evidence or documents in the FO relating to the case; and

  • Whatever else is needed to prepare for the conference, e.g., miscellaneous forms and supplies and writing materials.

Ensure that these items are at hand for the conference to avoid unnecessary interruptions. If materials needed for adjudication were sent elsewhere, retrieve them for use at the conference.

7. Interpreters and translators

If an interpreter/translator will be needed at the conference, make the necessary arrangements. Personnel with the necessary skills may be available in the FO or in neighboring FO's.

NOTE: A claimant-supplied interpreter is acceptable for the oral exchange at the conference. But any translations of documentary evidence must be verified by authorized SSA translators.

Whatever the source of the interpreter or translator, ensure that he/she is informed of the date, time, and place of the conference.

8. Witnesses

Inform the claimant of his/her right to present witnesses and that he/she will normally arrange for their appearance. Tell the claimant that an appropriate witness is one who has first hand knowledge of the claimant's situation and/or condition; e.g., a relative, friend, or neighbor.

Notify the witnesses of the date, time, and place of the conference by letter or telephone call.

9. Analysis of case record

Carefully review the claims file or other record of the claim, the request for reconsideration, and any other evidence in the FO to gain a clear understanding of what the case involves. In making the analysis:

  • Identify the issues involved;

  • Note any inadequacies or conflicts in the record that need to be remedied or resolved;

  • Note potential sources for needed evidence;

  • Decide whether to request any preconference development, advise the claimant what evidence, if any, to bring to the conference;

  • Note any questions of law or policy which may need to be researched before the conference; and

  • Consider what action needs to be taken with respect to any confidential material. See GN 03301.000 for SSA rules on Disclosure/Confidentiality.

Make notes of your analysis. This will help to refresh your memory during the conference and ensure that complete information is obtained. After the analysis, it may be helpful to prepare a written statement of your planned opening remarks to be presented at the conference.

E. Procedure -- Conducting formal and informal conferences

1. Opening the conference

a. Introductions

Start the conference as follows:

  • Introduce yourself;

  • Learn the identity of all others present and their relationship to the case; e.g., claimant, representative, witness; and

  • Briefly explain your role; i.e., that you will preside at the conference, attempt to elicit all the pertinent evidence in the case, and will ultimately make the reconsidered determination.

b. Preliminary explanations

If a common title II/title XVI issue is involved, explain the PSC's role in making the title II determination. Also, make clear that the decisionmaker's role during the conference is not to argue the merits of the case or to rebut evidence presented or contentions made, but to elicit all the pertinent evidence bearing on the case.

Give the claimant (and other participants) an idea of what can be expected during the conference. Briefly describe the conference procedures including the fact that the claimant may present documents or other evidence and that the decisionmaker may ask questions of the claimant or a witness to clarify terms or facts that may be misunderstood. Also explain that you will consider all evidence and statements in making your decision.

If the claimant wishes to make a personal record of the conference, inform him/her that he/she may take notes or record the proceeding on his/her own tape recorder. (If a tape recorder is used at the conference, all participants must be made aware of it.)

NOTE: The preliminary remarks should indicate the relative informality and flexibility of the proceeding.

2. Opening remarks

Prepare your opening remarks in advance. Cover all the pertinent points, including the following:

  • The purpose of the conference; i.e., to give the claimant a chance to

  • present his/her case and to obtain all the facts necessary to make a

  • correct determination;

  • Identification of the case being reconsidered by giving the name of the claimant, Social Security number (SSN), and type of claim involved;

  • Statement of the claimant's right to reconsideration and to further appeal under the statute and regulations;

  • A brief history of the claim with pertinent dates (i.e., filing of application and initial determination) stating grounds and effects, filing of reconsideration request and choice of a conference;

  • A statement of the issues involved, including disagreements and what must be established;

  • A review of the evidence on record as of the time that the determination in dispute was made; and

  • Reference to the law, regulations, and rulings as they pertain to the issues.

If you believe it will be helpful, include a reminder of the statutory penalties for false statements in connection with SSI claims.

After your opening remarks, ask the claimant whether the opening remarks are a correct account of what has happened and whether the issues have been accurately defined. If the response indicates misunderstandings about what has transpired on the case, attempt to clear them up immediately with a suitable explanation. Disagreements may not always be cleared up by the explanation. In these cases, indicate the area of disagreement on the AOCD (Other Conference Details) screen or in “Pertinent Details” on the summary record for non-MSSICS cases.

3. Claimant's presentation

Have the claimant present his/her case immediately after the opening remarks.

There is no set manner in which this must be done and the claimant should be given considerable latitude. Do this by:

  • Allowing the claimant to explain the case in his/her own words; or

  • Taking a question and answer approach with the claimant.

    Because the role of the decisionmaker is not passive, do the following during the claimant's presentation:

  • Assist the claimant as needed in presenting his/her case through pertinent questions, suggestions, and explanations where appropriate.

  • Bring the claimant's or others' presentation back on track when the discussion seems to be drifting from the issues.

NOTE: It should not be necessary to set a time limit on presentations.

Make any written statements of the claimant (or other participants) a part of the file. Whenever possible, condense oral statements that bear directly on the issues on the AOCD screen or put them in writing on an SSA-795 or similar form for non-MSSICS cases..

4. Documentary evidence

Accept any documentary evidence the claimant offers. Be sure that each item bears the date it was received. Also, permit the claimant to examine the evidence on which the determination in dispute was based and any evidence subsequently received which he/she did not submit, subject to the rules on disclosure of information (see GN 03301.000 through GN 03305.000).

If the submission or examination of evidence generates discussion or requires explanation, give a general explanation of how SSA evaluates the probative value of documents (see GN 00301.000).

5. Witnesses

The point at which the witnesses are presented is up to the decisionmaker and the claimant. However, witnesses will normally follow the claimant's presentation.

Handle the statement of a witness in basically the same way as that of the claimant; i.e., in his/her own words with the decisionmaker assisting when necessary with questions, etc. The DAPR screen allows the printing of the witness statement for the witness’ signature. For non-MSSICS cases, put statements which bear directly on the issue in writing over the signature of the witness.

6. Cross examination

a. The right to cross examine

In the formal conference, permit the claimant to confront the adverse witness face-to-face and test the accuracy of the witnesses' evidence and statements through questioning and presentation of rebuttal. Basic to the exercise of this right is the claimant's familiarity with the evidence against him/her. This is acquired through his/her examination of the record.

b. How to handle cross examination

This is discretionary. If you find it helpful, first allow the witness to present his/her story in his/her own words and ask him/her to explain the basis for his/her knowledge of the facts about which he/she is giving evidence. Then, permit the claimant to question the witness about any of the information given and to submit any evidence or statements in rebuttal. Assist in this process by asking pertinent questions of either the witness, the claimant, or both, and by clarifying points of apparent misunderstanding, as appropriate.

c. Conflict

Because the cross examination situation has the potential for hostility and conflict, ensure that the conference is concerned with a discussion of the substantive issues. Do not allow it to digress into unpleasant exchanges between the participants. It is your responsibility to maintain an orderly atmosphere.

7. Evaluating cross examination evidence

Carefully evaluate the evidence received through cross examination to ensure that sound judgments are made. Decide questions of credibility, motive, and understanding if they arise and have to be decided. If the evidence is not clear, decide who is to be believed based on your observation of the witness, the manner in which he/she testifies how well the evidence supports, his/her testimony, etc. Document this evaluation on and the evidence received on the ACON and ACOD screens or the SSA-8450 for non-MSSICS cases.

8. Representatives

The claimant has a right to be represented by an attorney or other qualified person in any of his/her dealings with SSA (see GN 03910.000). Allow the representative who may appear at the conference with or without the claimant to do all the things permitted the claimant; just as you would with the claimant; e.g., present and examine evidence, cross examine witnesses. A duly appointed representative may not testify in place of claimants.

Make all contacts with the claimant through his/her representative unless the representative requests otherwise. In conference situations, establish at the outset the wishes of the claimant and the representative concerning their participation in the proceedings by asking the representative whether he/she prefers to handle all matters in the conference or whether the claimant will actively participate also. In doing so, point out the relative informality of the proceedings. If the representative indicates he/she will handle all matters, respect that request.

During the entire period he/she is representing the claimant, furnish the representative copies of all correspondence addressed to the claimant, including copies of all notices.

9. Summary record of reconsideration (SSA-8450) for non-MSSICS cases

For non-MSSICS cases, make a summary record on SSA-8450 and sign it. The MSSICS appeal screens collect the information for MSSICS cases. Either complete the summary record as the conference progresses, or alternatively take notes during the conference and complete the SSA-8450 afterwards. Although a verbatim record is not necessary, ensure that the record thoroughly describes the issue(s) involved and the rationale supporting the decision.

If requested, provide the claimant or his/her representative with a copy of the summary record or a copy of the appropriate appeal screen which provides the information that is requested.

10. Closing the conference

a. Summation of evidence

Before closing the conference, ask if there is any further evidence to be presented at the conference. Remind the claimant of any evidence he/she has promised to submit after the conference. Also, advise him/her of any evidence you intend to obtain from third parties as a result of the conference and ask whether the claimant wishes to examine it when received. If so, make the necessary arrangements for the examination.

b. Determination

Inform the claimant that all the evidence, including that received at the conference, will be reviewed, and that a determination will be prepared as soon as possible. Advise the claimant that written notice of determination will be mailed and approximately when he/she may expect to receive it.

11. Unmanageable conference

If the conduct of the claimant or others during the conference creates an atmosphere in which the orderly progress of the proceeding is impeded, make every effort to handle the situation with tact and courtesy to complete the conference in an orderly manner. The experience gained in dealing with difficult interview situations may be helpful to cope with similar difficulties in the conference. (See GN 00203.013 for guidance in handling difficult interview situations.)

When a difficult situation seems to be developing, it may be sufficient to remind the claimant (or others) of the purpose and procedures of the conference and to assure him/her that there will be a full opportunity to present his/her case. If the problem appears to be one of misunderstanding, attempt to explain or clarify the point causing the difficulty. If pressed or harassed by the claimant or his/her representative on a point about which you are uncertain, promise to supply the necessary information at some later time and ask to proceed with the other business of the conference.

12. Terminating the disorderly conference

If disruptive or disorderly conduct persists on the part of the claimant or the representative, it may be necessary for you to terminate the conference. Take such action only as a last resort, and then only after giving fair and adequate warning. If necessary, dismiss witnesses, other than the claimant or his/her representative, in order to restore order to the conference proceeding. If advisable, call for a break and resume the conference with a member of management present to serve as a witness in the event the conference has to be terminated.

If a conference must be terminated under these circumstances, prepare and effectuate the reconsidered determination based on the evidence of record. Explain in the notice to the claimant why the conference was terminated, that the determination was based on all the evidence of record. Also explain the claimant's right to further appeal.

Summarize the difficult situations on the AOCD screen or the summary record for non-MSSICS cases and, if the conference was terminated, the efforts to continue it, and that fair warning was given before it was terminated.

F. Procedure -- Subpoena requests

1. When not to consider a subpoena

Use the subpoena procedure only for formal conferences. Do not request a subpoena for testimony or documentary evidence that can be secured without a subpoena or for a witness who does not have first hand knowledge of the claimant or the claimant's situation. Try to obtain such testimony, other evidence or witness, if practicable, to avoid unnecessary subpoena requests.

a. Alternatives to a subpoena

Send a letter or make a telephone call to the adverse witness to explain why his/her appearance is necessary and what information or evidence is sought. Also, explore the possibility that the witness may be willing to submit the information sought without appearing. Follow up on this possibility only if it is acceptable to the claimant.

b. FO employees

Do not subpoena a FO employee. Although he/she may have participated in formulating an adverse determination, an SSA employee does not fit the definition of an adverse witness. In addition, an FO employee does not need to be subpoenaed to compel his/her appearance.

2. Initiating the request for a subpoena

In the formal conference reconsideration, the subpoena procedure is available to enable the claimant to completely challenge any adverse testimony or evidence used in the formulation of the initial determination. The subpoena procedure is not for the purpose of simply assisting the claimant to secure additional testimony or evidence to pursue his appeal.

a. Completing an SSA-795

If the claimant or other party to the reconsideration believes that certain information or the appearance of someone is necessary, and all efforts to obtain it have been unsuccessful, assist him/her in preparing a statement (SSA-795) which includes (as applicable):

  • Identification of the person to be subpoenaed, his/her address, and the nature of the information sought;

  • Description of the document, record, or other evidence to be subpoenaed and its relevance to the SSI determination at issue;

  • Identification of the custodian of any document, etc., to be subpoenaed, his/her address, and any relationship of the custodian to the party requesting the subpoena; and

  • Description of steps taken by the claimant to persuade the custodian to release evidence, or the individual to attend an SSI formal conference voluntarily, and reasons why such efforts failed.

Ask the claimant to sign the statement. However, if he/she is reluctant or refuses to sign, do not insist on a signature, but document the file to that effect with the reasons, if given, for not signing.

DO NOT INITIATE A SUBPOENA REQUEST. This is the responsibility of the Claimant, representative, or other party to the reconsideration.

b. Denying the subpoena request

Evaluate the reasons for requesting a subpoena. If they are not sufficient, so advise the claimant and proceed with the formal conference as usual. Since denial of a request for subpoena is not an initial determination, and no appeal rights apply, do not send a written notice (unless, of course, a letter is the only method of communicating with the claimant).

c. Memorandum to the assistant regional commissioner (ARC), MOS (Management and Operations Support)

If the request is appropriate, prepare a memorandum to the ARC, MOS, in the RO. Include the information from the claimant's statement, along with:

  • Description of steps taken by the FO to persuade the custodian to release evidence, or the subpoenaed witness to attend the conference voluntarily and why such efforts failed;

  • Statement as to whether there is other evidence of sufficient probative value available which could be obtained without issuing a subpoena;

  • Statement concerning any adverse impact of a subpoena (e.g., hardship on witness or custodian);

  • Statement concerning any implication of criminal violation which might lead to the prosecution of the party being subpoenaed, the custodian of the evidence, or any other individuals involved in the subpoena; and

  • Statement as to whether a "courtesy subpoena" is involved. See SI 04020.050A.3. Telephone the regional office (ARC, MOS) to advise that the subpoena has been requested.

Then, forward the memorandum requesting issuance of a subpoena and any supporting material to the RO, ARC, MOS, and contact the claimant to advise him/her that some delay may ensue and that he/she will be contacted later as to the scheduling of the conference. (Follow up with RO, ARC, MOS at reasonable intervals; e.g., 20 days, and keep the claimant informed.) If the claimant objects to a delay, advise that if the conference is not delayed, the subpoenaed witness or documents may not be available at the conference.

3. Responsibility of RO, ARC MOS (Management and Operations Support)

Upon receipt of the subpoena request, follow this procedure:

a. Consultation with the regional attorney

Obtain the advice of the Regional Attorney in ascertaining that the request has been properly developed and is necessary, unless a so-called "courtesy subpoena" is involved.

b. If the subpoena request is not appropriate

Advise the FO of the reasons by telephone (followed up by a confirming memorandum). The FO shall schedule a formal conference as usual.

c. If the subpoena request is appropriate

Prepare a recommendation to the RC which includes the pertinent facts, reasons for recommending the issuance of a subpoena, and the advice of the Regional Attorney (if applicable). Include in the recommendation the information from the FO statement, as well as:

  • Statement concerning advice received from the Regional Attorney which may include his/her separate statement, where appropriate; and

  • Statement concerning possibility that an immunity order may be required. Where there is a possibility that a witness may refuse, on the basis of the privilege against self-incrimination, to testify or to furnish other requested information, an immunity order compelling the witness to testify or furnish the information may be issued with the approval of the U.S. Attorney General, if the testimony or other information is necessary to the public interest. It may be undesirable to compel the testimony or evidence of a witness who asserts the privilege against self-incrimination if, by so doing, the possibility of a criminal prosecution for fraud or other violations would be jeopardized. In those rare cases where an immunity order would be proper, the RC will request the Regional Attorney to seek the necessary approval of the U.S. Attorney General.

d. Preparing the subpoena

Prepare a subpoena and four copies using the standard format (see the exhibit in SI 04020.050G). Contact the FO to schedule the formal conference.

After advising the FO of the probable date of subpoena issuance and allowing 10 days from the probable date for service of the subpoena, establish a tentative date for the formal conference to be held. Confirm this date after contact with the claimant. Forward the recommendation and the subpoena to the RC.

4. When the regional attorney must prepare a subpoena request

The OGC Regional Attorney must prepare the subpoena request when there is any variation from the standard subpoena format.

5. Regional office responsibility

Authority for subpoena issuance rests with the RO. If the subpoena request is appropriate, the RO will notify the FO by telephone, and follow up by a confirming memorandum (accompanied by the FO copy of the subpoena). The RO will distribute the original and copies of the subpoena as follows:

  • Original to subpoenaed party (served either personally or by certified mail, return receipt requested);

  • Two copies for the RO, ARC, MOS (Management and Operations Support);

  • One copy, annotated as to how service was made, retained in the RC's files;

  • One copy to the FO requesting the subpoena (to become part of the claim file); and

A subpoena generally will not be issued when it appears that the testimony or documentary evidence can be secured without a subpoena. If the Subpoena Request is not appropriate, advise the FO of the reasons by telephone (followed up by a confirming memorandum). The FO shall notify the claimant and schedule a formal conference as usual.

6. Refusal by a witness to appear under subpoena

Notify the RO, ARC, MOS by telephone (followed up by a memorandum) of the noncompliance with the subpoena directives, and advise the claimant that he/she will be contacted later about arrangements for the conference after the subpoena issue has been resolved.

NOTE: The RO, ARC, MOS in turn, must notify the RC, who will request further advice from the Regional Attorney. The Commissioner may apply to a U.S. District Court for an order requiring such compliance and rendering the individual subject to punishment for contempt of court if the order is disobeyed.

The RO will keep the FO advised on how to process the claimant's request for reconsideration.

7. Witness reimbursement

A subpoenaed witness is entitled to reimbursement for per diem and cost of travel within the United States, i.e., the 50 States, the District of Columbia and the Northern Mariana Islands. Sections 201(j), 1631(h), and 1817(i) of the Social Security Act state the authority for the payment of certain travel expenses to claimants, representatives, and all reasonably necessary witnesses.

When a subpoenaed witness to an SSI formal conference requests travel reimbursement, assist the witness in completing the following forms in triplicate:

  • Public Voucher for Fees and Mileage of Witness, SF-1156, and yellow copy SF-1156a; and

  • Claim for Fees and Mileage of Witness, SF-1157, and yellow copy, SF-1157a. Because these forms are expected to have very limited use, they are not stocked in any SSA offices. On an as needed basis, the forms can be obtained from the GSA RO through the SSA RO, ARC, MOS (Management and Operations Support).

After the FO Manager and the witness sign the reimbursement request, send it to the SSA RO, ARC, MOS with the original of the subpoena attached.

G. Exhibit - Subpoena Format

UNITED STATES OF AMERICA

SOCIAL SECURITY ADMINISTRATION

To __________________________

You are hereby required to appear before _________ , a _________

of the Social Security Administration at ________________

in the City of _______________

State of ______________

day of __________ , 20 __ at ___ o'clock __ M,

to give testimony in connection with:

You are further required to bring with you and produce at said time and place the following books, correspondence, documents, and records:

Failure to comply with this supboena will cause action to be taken pursuant to section 205(e) of the Social Security Act, as amended (Title 42 U.S. Code, sec. 405(e)), the text of which is set forth on the reverse hereof, to compel such compliance.

In testimony whereof, the seal of the

Social Security Administration

is affixed hereto and the undersigned

Regional Commissioner of the Social

Security Administration or an officer

designated by him, has hereunder set his

hand, at ______ this ___ day of ____ , 20

___ .

(Name) _________

(Title)

In case of contumacy by, or refusal to obey a subpoena duly served upon any person, any district court of the United States for the judicial district in which said person charged with contumacy or refusal to obey is found or resides or transacts business, upon application by the Board, shall have jurisdiction to issue an order requiring such person to appear and give testimony, or to appear and produce evidence, or both, any failure to obey such order of the court may be punished by said court as contempt thereof.

The powers and functions of the Social Security Board as defined in section 205(e), have been delegated to the Commissioner of Social Security and by him to, among others, the Regional Commissioners of the Social Security Administration. 33 F.R. 5836, 36 F.R. 13941.

RETURN OF SERVICE

_________ , being duly sworn, deposes and says that a copy of this subpoena was served by him upon ________ on the _____ day of _____ 20 __ by (Check method used):

_______ Personally giving a copy to __________

(Name of Person Served)

________________________

(Title of person served if service on corporation)

at ___________________

(Place of service)

_______ Send a copy by certified mail to ________

at ______________

(Place to which copy mailed)

and the return receipt therefore is attached hereto; and that he was duly authorized to do so.

Date: ________

_______________

(Name of person making service)

_______________

(Title)

Sworn to before me this

_____ day of ___ , 20 __


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0504020050
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