Identification Number:
DI 33010 TN 3
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
Title:Procedure for Processing Before the Disability Hearing
Type:POMS Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part DI – Disability Insurance
Chapter 330 – Disability Hearing Unit Procedures
Subchapter 10 – Procedure for Processing Before the Disability Hearing
Transmittal No. 3, 09/05/2019

Audience

PSC: DEC, RECONR;
OCO-OEIO: CTE, FCR, FDE, RECONE;
OCO-ODO: DE, RECONE;
ODD-DDS: DHU;

Originating Component

ODP

Effective Date

Upon Receipt

Background

This transmittal is a part of an ongoing rewrite of the program operations manual system (POMS) sections related to disability processing. This update clarifies instructions on how to process cases at the Disability Hearing Unit (DHU).

Summary of Changes

DI 33010.001 General Review of Claims Folder and Preparation of In-House Folder in the Disability Hearing Unit (DHU)

Updated title to reflect additional content.

Implemented plain language updates.

Incorporated content of DI 33010.010 Preparation of the DHU Folder.

Incorporated content of DI 33010.020 Securing Claims Folder From Another Office.

DI 33010.005 Scheduling, Postponing, Canceling or Changing Place of the Disability Hearing

Updated title to reflect additional content.

Incorporated content from DI 33010.007 Postponing/Cancelling the Hearing- Procedure.

Incorporated content from DI 33015.040 Postponements and Changes in Place of the Disability Hearing.

Provided instructions for scheduling a hearing for a confined beneficiary (or recipient).

Incorporated Q&A 16-001.

Reorganized subsections to improve sequence.

Implemented plain language updates.

DI 33010.007 Supervisory Hearing Officer (SHO) Case Review — Prior to Disability Hearing

Moved entire content to DI 33010.005.

Changed title from Postponing/Canceling the Hearing — Procedure to Supervisory Hearing Officer (SHO) Case Review — Prior to Disability Hearing.

Replaced with content from DI 33010.015 Supervisory Hearing Officer (SHO) Case Review -Prior to Disability Hearing.

Implemented plain language updates.

DI 33010.010 Disability Hearing Officer (DHO) Review of the Claims Folder

Moved entire content to DI 33010.001.

Changed title from Preparation of the DHU Folder to Disability Hearing Officer (DHO) Review of the Claims Folder.

Replaced with content of DI 33015.010 Disability Hearing Officer's Review of Folder.

Added language for overall responsibility, timeliness.

Implemented plain language updates.

DI 33010.015 Adverse Effect

Moved entire content to DI 33010.007.

Changed title from Supervisory Hearing Officer (SHO) Review to Adverse Effect.

Replaced with content of DI 33015.050 Adverse Effect.

Implemented plain language updates.

DI 33010.020 Return for Additional Development (RAD)

Moved content to DI 33010.001B.

Changed title from Securing Claims Folder From Another Office to Return for Additional Development (RAD) .

Replaced with content from DI 33015.033 Returns for Additional Development (RADS).

Implemented plain language updates.

DI 33010.025 Spanish Notices

Implemented plain language updates.

DI 33010.030 Disability Hearing Unit (DHU): Interpreters for Beneficiaries (or Recipients) with Limited English Proficiency (LEP) or Individuals Requiring Language Assistance

Added DDSAL 919 REV link.

Implemented plain language updates.

Updated format for clarity.

DI 33010.035 Beneficiary (or Recipient) Change of Address

Updated title.

Implemented plain language updates.

Updated sequence for better organizational flow.

DI 33010.040 Transferring Case to a Different Disability Hearing Unit (DHU)

Updated title.

Added good cause consideration factors and examples from regulations.

Implemented plain language updates.

DI 33010.045 Reimbursement for Travel Expenses to Disability Hearing Site

Updated title.

Removed duplicate language.

Provided additional instructions from regulations for clarification.

Implemented plain language updates.

DI 33010.050 Subpoenas for Testimony and Other Documents

Changed title to Subpoenas for Testimony and Other Documents for clarity.

Implemented plain language updates.

DI 33010.055 Withdrawal of Request for Reconsideration of Disability Cessation

Implemented plain language updates.

Updated content to reflect electronic process.

DI 33010.060 Beneficiary or Recipient Dies Before Disability Hearing Unit (DHU) Determination is Made

Plain language updates.

Reorganized content for clarity.

DI 33010.065 Representation of Beneficiary or Recipient at the Disability Hearing Unit (DHU)

Changed the title from Representation of Claimant at the Disability Hearing Unit (DHU).

Updated link for 1696 form.

Implemented plain language updates.

DI 33010.070 Suspected Violations, Suspension, or Disqualification of Representatives

Updated title to better reflect content.

Updated content and links to reflect electronic process.

Implemented plain language updates.

DI 33010.075 Security – Personnel Protection

Moved content to DI 33015.010 to be included with the hearing related policy.

DI 33010.075 will be archived.

Conversion Table
Old POMS ReferenceNew POMS Reference
DI 33010.007DI 33010.005
DI 33010.010DI 33010.001
DI 33010.015DI 33010.007
DI 33010.020DI 33010.001
DI 33010.075DI 33015.010

DI 33010.001 General Review of Claims Folder and Preparation of In-House Folder in the Disability Hearing Unit (DHU)

A. Pre-hearing (PH) transfers the case to the DHU

When the disability determinations services (DDS) is unable to make a favorable determination after the PH review, the DDS closes the case as a No Determination (ND) with a reason of "PH Transfer to Disability Hearing (DH)." An electronic folder interface (EFI) download changes the claim to "DH" level.

B. Receipt of claims folder in the DHU

Depending on the DHU local business procedures, a technical review of the claims folder will be made to determine if the necessary evidence is included, and to identify existing or potential situations requiring additional action or referral.

1. Receipting the electronic folder (EF)

An EFI download changes the claim level to "DH" after the DDS closes the case at the PH level. To receipt the EF, the DHU will:

  1. a. 

    Review the folder for proper routing. If misrouted, the DHU will send the folder to the appropriate DHU or other component.

  2. b. 

    Receive the EFI download and assign the case to a disability hearing officer. See DI 81020.255 Processing a Reconsideration Appeal of an Electronic Continuing Disability (eCDR) Cessation.

2. Receipting the paper folder

The DHU should receive the paper folder under an SSA-408 Route Slip. The DHU will then:

  1. a. 

    Review the folder for proper routing. If the folder has been misrouted, the DHU will send it to the appropriate DHU or other component.

  2. b. 

    Update the case control system.

  3. c. 

    Date stamp the front of the claims folder copy of the SSA-789 Request for Reconsideration-Disability Cessation Right to Appear or Modernized Supplemental Security Income Claims System (MSSICS) generated printout to show the date the folder was received in the DHU. (This copy will be inside the claims folder.)

NOTE: The MSSICS generated printout is acceptable as an appeal document as it contains the same information as the SSA-789 Request for Reconsideration-Disability Cessation Right to Appear for Title XVI or concurrent cases. Refer to DI 12026.020 and DI 12026.025 for further information on appeals documents.

C. Securing claims folder from another office

1. Different folder needed

The DHU may request a folder from another office if the DHU receives the incorrect folder or the DHU needs an additional folder.

2. Procedure to obtain folder

  1. a. 

    Complete a case control query to determine the folder location. See DI 20505.015 for additional queries that can provide information on folder location.

  2. b. 

    Contact the office where the folder is located and request transfer to the DHU.

3. Follow-up if not received in 10 days

  1. a. 

    Make a follow-up call.

  2. b. 

    Follow regional procedures or telephone the regional office (RO) for assistance if the office where the folder is supposed to be has no record of the case, is unable to locate the folder, or does not provide the folder within 10 days of the follow-up request.

D. Folder documents

1. Documents and review

  1. a. 

    Review the folder for any "alerts" or identifying remarks. These may be found on an SSA-5002 Report of Contact (or SSA-408 Route Slip for paper folders), or in the alerts and message tab of eView.

  2. b. 

    Review the folder for waivers or situations, such as confined individuals, that affect scheduling and take appropriate action as needed.

  3. c. 

    Review SSA-1696 Appointment of Representative, or other written notice of appointment, if applicable. See details in DI 33010.001E.

  4. d. 

    Review the SSA-887 Summary of Evidence, if prepared by the pre-hearing unit, to assure all medical and vocational reports listed are in the folder. See DI 29025.001B for details on the preparation of the SSA-887 Summary of Evidence.

  5. e. 

    Review SSA-789 Request for Reconsideration-Disability Cessation Right to Appear or MSSICS generated printout to determine hearing preference.

  6. f. 

    Ensure field office (FO) work development is complete in extended period of eligibility (EPE) cases. SSA-408 Route Slip should have annotation "EPE Case". SSA-883 SGA determination will be in file for cases without medical improvement expected (MIE) diaries.

  7. g. 

    If foreign documents need to be translated, see instructions in DI 33025.015B.2.

  8. h. 

    Refer any potentially harmful documents to the supervisory hearing officer (SHO). See DI 33010.015 for detailed instructions on adverse effect material.

  9. i. 

    Review the SSA-416 Medical Evaluation, SSA-4734-BK Physical Residual Functional Capacity and SSA-4734-F4-SUP Mental Residual Functional Capacity assessment forms when required. See DI 24501.006, DI 24510.005, DI 24510.060, and DI 28010.145.

  10. j. 

    The SSA-2506-BK Psychiatric Review Technique, signed by a medical consultant, is included in all cases involving a current evaluation of a mental impairment. See DI 24583.005 and DI 28010.140.

  11. k. 

    The SSA-538 Childhood Disability Evaluation Form or Childhood Disability Evaluation Form (CDE) is included in all cases involving childhood disability claims. See DI 25230.001.

NOTE: "ADVISORY" [in bold, upper case letters] will be noted on the following forms in the appropriate sections or in the “Notes” section of eView as outlined in DI 29025.001A.2,:

  • SSA-4734-BK Physical Residual Functional Capacity,

  • SSA-416 Medical Evaluation,

  • SSA-4734-F4-SUP Mental Residual Functional Capacity,

  • SSA-2506-BK Psychiatric Review Technique,

  • SSA-538 Childhood Disability Evaluation Form, or

  • Disability determination explanation (DDE).

E. Appointed representative involvement

If an appointed representative is involved, ensure that:

  1. 1. 

    A form SSA-1696 Appointment of Representative, or other written notice of appointment, is in the claims folder;

  2. 2. 

    In electronic folders, the "Representative Involved" flag is in eView; and

  3. 3. 

    In paper folders, a form SSA-1128 Attorney Representation is attached outside of folder to indicate representative involvement.

Refer to DI 31001.001 and DI 33010.065 for additional details on representation of beneficiaries (or recipients).

F. Interpreter

Review the SSA-789 Request for Reconsideration-Disability Cessation Right to Appear, or MSSICS generated printout, to determine the need for providing an interpreter. See DI 23040.001 and DI 33010.030 for complete instructions on interpreters.

  1. 1. 

    Ensure that the DHU provides an interpreter when needed.

  2. 2. 

    Determine if there is any question regarding the qualifications of an interpreter provided by the beneficiary or recipient, and refer the folder to the SHO if there is a question.

G. Preparation of the in-house DHU folder for paper cases

1. Purpose of the in-house folder

An in-house folder is prepared for every paper case processed in the DHU. The folder allows for orderly retention of all hearing materials. It also acts as a general reference for case processing and post-hearing activities.

2. Content of the folder

The DHU folder retains the following types of documents:

  1. a. 

    Documents related to the processing of the specific case, such as copies of Forms SSA-1204-BK Disability Hearing Officer’s Report of Disability Hearing (DC); SSA-1205-BK Disability Hearing Officer’s Report of Disability Hearing; SSA-887 Summary of Evidence; or SSA-1207 Disability Hearing Officer’s Decision.

  2. b. 

    Copies of congressional inquiries.

  3. c. 

    Post-hearing material. When the original of such material is to be associated with the claims folder, make a copy for the DHU folder. See DI 33020.020 for instructions on trailer material..

  4. d. 

    Copies of any hearing documents normally retained in the claims folder, e.g., correspondence from the beneficiary (or recipient), and medical reports.

3. Retention

Retain the DHU folder for one year from the date of the last action or inquiry that involved the DHU.

DI 33010.005 Scheduling, Postponing, Canceling or Changing Place of the Disability Hearing

Citations: 20 CFR 404.914, 404.936,416.1414,416.1436

The disability hearing unit (DHU) must send a hearing notice at least 20 days before the date of the scheduled hearing. However, the beneficiary (or recipient) can indicate, in a signed written statement, that he or she does not wish to receive this advance notice. Alternatively, the disability hearing officer (DHO) may ask the beneficiary (or recipient) whether he or she is willing to waive the right to advance notice.

A. Scheduling policy

1. Waiver of advance scheduling notice

a.  Who can initiate a waiver of advance notice

A waiver of the advance notice of the hearing may be initiated by the beneficiary or recipient or in certain instances by the DHO.

NOTE: If, at the time the SSA-789 Request for Reconsideration-Disability Cessation Right to Appear is filed, the beneficiary (or recipient) wishes to waive the advance notice, the field office (FO) will obtain a written statement of the waiver from the beneficiary (or recipient).

b. Waiver initiated by the DHO

In certain instances, the DHO may ask whether the beneficiary (or recipient) and appointed representative are willing to waive the right to advance notice. It may be appropriate for the DHO to initiate the waiver to expedite the case, e.g., to accommodate travel or when an earlier hearing becomes available. When the DHO initiates the waiver:

  • The DHO must make it clear that the beneficiary (or recipient) should not waive his or her right to advance notice if he or she needs additional time to prepare for the hearing, and

  • The beneficiary (or recipient) must sign a statement as shown in DI 33095.055 SSA-795 Statement of Claimant or Other Person, that includes the following language:

    "I have been advised of my right to be sent a notice of the time and place of my disability hearing at least 20 days before the date of my hearing. I have been advised that I should not give up this right, if I need additional time to prepare for the hearing. However, I am prepared to have my hearing on or after (insert date), and hereby knowingly and willingly give up my right to be sent the 20-day advance notice as cited in 20 CFR, sections 404.914(c)(1), and 416.1414(c)(1)."

2. When a hearing should be held

  1. a. 

    Generally, hold hearings within 25 to 30 days from receipt of the claims folder in the DHU with no case exceeding 90 days from the filing date. The filing date is the date SSA received the appeal, as indicated on the top of the SSA-789 Request for Reconsideration-Disability Cessation Right to Appear or on the Modernized Supplemental Security Income Claims System (MSSICS) generated printout.

  2. b. 

    The DHU will contact the disability determination services (DDS) for status on any case not received at least three weeks prior to the 90-day mark.

3. What to consider when scheduling hearings

  1. a. 

    Number of available DHOs and hearing rooms.

  2. b. 

    Expected productivity.

  3. c. 

    Amount of travel required.

  4. d. 

    Type of impairment.

  5. e. 

    Whether an interpreter is required.

4. What the schedule must allow

  1. a. 

    Time for beneficiary (or recipient), appointed representative and DHO review of the claims folder prior to the hearing.

  2. b. 

    The hearing itself.

  3. c. 

    Preparation of the determination.

B. Manner of appearance and scheduling

1. Manners available for an individual to appear at a disability hearing:

  • In person,

  • By video teleconference (VTC), or

  • By phone.

2. Preferred manners

  • The preferred manner for conducting hearings are in person or by VTC. See DI 33025.080 for VTC requirements.

  • DHOs may conduct hearings by phone only when extraordinary circumstances prevent the beneficiary (or recipient) from appearing in person or by VTC. See DI 33025.085.

3. Special considerations

  • Do not deny an individual a hearing because of geographic considerations. For cases involving beneficiaries (or recipients) who reside in foreign countries or who have a foreign address, see DI 33025.015.

  • Follow security guidelines in DI 39567.045 if an individual is banned from entering a Federal or Social Security facility or if the beneficiary (or recipient) threatened violence against the general public or agency personnel.

C. Scheduling a disability hearing when the individual is confined

A confined beneficiary (or recipient), i.e., incarcerated or institutionalized, has a right to a disability hearing. Once the individual has appealed the initial continuing disability review (CDR) determination, the DHO must make every reasonable effort to schedule a hearing, hear the case, and make a determination. Do not delay scheduling a hearing until after the confined beneficiary (or recipient) is released, and do not return the file to the FO because benefits are in suspense.

The right to a hearing also applies to appeals of Age 18 Redeterminations. Age 18 Redeterminations follow the appeal procedures for CDRs. FO policies in DI 13005.020E apply only if the initial CDR or Age 18 Redetermination has not been made and do not apply at the appeal level.

NOTE: Incarcerated or otherwise confined beneficiaries (or recipients) may be awaiting arraignment or trial, and there is no conviction yet. They may have other circumstances as the cause of their confinement, such as undergoing treatment in a highly structured setting for mental disorders or substance use disorders.

1. Confirming available means for conducting the hearing for confined individuals

  1. a. 

    The DHU must contact the confinement facility officials and confirm whether:

    • An in person hearing is permitted on the facility property;

    • VTC equipment is available for use to conduct a VTC hearing at the facility; OR

    • A phone is available for use by the confined beneficiary (or recipient) for a hearing by phone.

  2. b. 

    Document the folder with all attempts to determine the possibility of a hearing for a confined beneficiary (or recipient).

  3. c. 

    If the beneficiary (or recipient) has an appointed representative, verify whether an appointed representative is available to proceed with the disability hearing. Refer to DI 31001.001 for more information on representatives.

NOTE: A hearing is not necessary if the DHO can make a fully favorable determination with evidence in file or if the beneficiary (or recipient) has waived the right to a hearing as in DI 33015.021.

2. Deciding the means of appearance for a confined individual

Once the DHU confirms the means available for conducting the hearing, the DHO will decide and schedule the manner of appearance using guidance in DI 33010.005B. Although the preferred manners for conducting hearings are in person or by VTC, the DHO may schedule an individual to appear by phone when the individual’s confinement prevents him or her from appearing in person or by VTC. See DI 33025.085.

NOTE: A person who is confined may have one or more special handling considerations. Confinement alone does not constitute a special handling situation. If special handling considerations are present, follow guidance in DI 33015.021B.

3. No possibility of a hearing for a confined individual

When the confined individual does not have an appointed representative, the evidence in the file is insufficient to make a determination, and the DHO has made every reasonable effort, but cannot schedule a disability hearing, the DHO will:

  1. a. 

    Document attempts to schedule the hearing in the file,

  2. b. 

    Prepare a curtailed determination to continue the period of disability,

  3. c. 

    Enter "Prisoner Case- Resolution of continuing disability issue required upon reinstatement of benefits." in item 24 of the SSA-832 Cessation or Continuance of Disability or Blindness Determination an Transmittal—Title XVI or SSA-833 Cessation or Continuance of Disability or Blindness Determination an Transmittal—Title II, AND

  4. d. 

    Route the claim to the servicing FO at closure.

NOTE: This instruction also applies when there is no possibility of a hearing for a confined individual that has an appointed representative but the appointed representative is unable to proceed with the disability hearing. Document attempts to proceed with the appointed representative in the file.

D. Scheduling notice

The notice of the time and place of the hearing must be mailed at least 20 calendar days before the hearing. See DI 33010.005A for information on waiver of the advance notice.

  1. 1. 

    Use:

    • an SSA-L951-U2/C2/SP letterhead for title II and concurrent title II/XVI cases,

    • an SSA-L8052-U2/C2 letterhead for title XVI cases, or

    • a State letterhead.

  2. 2. 

    Type “Important Information” as the third line of the letterhead when “three line letterhead” versions are used.

  3. 3. 

    See DI 33010.080 for language, which must be contained in the scheduling notice for domestic claims, and DI 33010.085 for the language, which must be contained in foreign claim cases.

  4. 4. 

    Send the notice to the beneficiary (or recipient) and his or her representative payee, when a legally competent adult has a representative payee.

  5. 5. 

    Send a copy of the notice to the beneficiary's (or recipient's) appointed representative, if applicable.

NOTE: The language referenced above is required regardless of whether the distance from the beneficiary's (or recipient's) residence (or place of entry into the U.S.) to the hearing site exceeds 75 miles.

E. Handling requests for postponements and changes in place of the disability hearing

1. Changes requested by the beneficiary (or recipient)

  1. a. 

    If the beneficiary (or recipient) is unable to travel or has some other reason why he or she cannot attend the hearing at the scheduled time or place, he or she should request, at the earliest possible date, that the time or place be changed.

  2. b. 

    A beneficiary (or recipient) may request a change using form SSA-769 Request for Change in Time/Place of Disability Hearing. He or she may submit the request directly to the DHU or to the FO, which will send it to the DHU. See DI 12095.055 for information about form SSA-769 Request for Change in Time/Place of Disability Hearing.

  3. c. 

    Only a DHO, supervisory hearing officer (SHO) or the regional office (RO) has the authority to grant or deny a request for change in time or place of the hearing.

  4. d. 

    The DHO, SHO, or RO will change the time or place if there is good cause for doing so, taking into account any impact on the expeditious handling of the hearing.

  5. e. 

    Consider contacting the beneficiary (or recipient) in some circumstances to further explore the reason(s) for the request.

2. Beneficiary's (or recipient's) request denied

  1. a. 

    Deny the request in writing, include a brief explanation of the decision, and send a copy to the beneficiary (or recipient), appointed representative and representative payee, if any, and

  2. b. 

    Prepare an SSA-5002 Report of Contact and annotate actions taken and a brief reason for the denial.

3. Beneficiary's (or recipient's) request granted

a. If the request does not change the DHU:

  1. 1. 

    Send a new scheduling notice,

  2. 2. 

    Prepare an SSA-5002 Report of Contact and annotate actions taken and a brief reason for the approval, and

  3. 3. 

    Update the case control system.

b. If the request changes the DHU:

  1. 1. 

    Update the case control system, and

  2. 2. 

    Transfer the case to the new DHU, if applicable. The new DHU will schedule the hearing. See DI 33010.040.

4. Postponement requested by DDS or DHU

  1. a. 

    In some situations, the DDS may request the DHU to postpone a hearing because it is unable to complete its action on the case within its expected time frame.

  2. b. 

    In some situations, a DHO may postpone a hearing (e.g., when the DHO returns a case to the DDS for additional development).

  3. c. 

    Postpone the scheduled hearing and reschedule it f necessary.

5. Procedure to postpone or cancel the hearing

  1. a. 

    Revise the hearing schedule.

  2. b. 

    Notify the beneficiary (or recipient) and appointed representative of the postponement or cancellation and any subsequently rescheduled hearing.

  3. c. 

    Prepare the notice as above in DI 33010.005D.

  4. d. 

    The 20-day advance notice applies to rescheduled hearings.

  5. e. 

    See DI 33010.090 for notice language. See DI 33095.059 for the Spanish translation of that language.

DI 33010.007 Supervisory Hearing Officer (SHO) Case Review — Prior to Disability Hearing

A. SHO screens the case

The SHO screens a certain number of cases, as needed.

The SHO's review:

  1. 1. 

    Takes place after the disability hearing unit (DHU) performs basic receipt function, but before the before beneficiary (or recipient), appointed representative, and disability hearing officer (DHO) review the case.

  2. 2. 

    Pinpoints problem areas with case development.

  3. 3. 

    Ensures that all prior actions have been properly performed, including the identification of adverse effect material (see DI 33010.015 ), and the need for an interpreter.

  4. 4. 

    Enables the SHO to determine if a fully favorable decision is warranted without a hearing.

B. SHO actions

1. Development incomplete

Return the case to the development unit if the DHU cannot hold the hearing because development is incomplete (e.g., allegations not investigated or insufficient medical evidence).

See DI 33010.020 for discussion of returns for additional development (RAD).

NOTE: The disability determination services (DDS) administrator decides whether State jurisdiction cases are to be returned to the DDS for development or the DHU will complete the necessary development. Federal DHU cases are returned to the DDS or appropriate Federal component when additional development is needed.

2. Fully favorable determination warranted

The SHO:

  1. a. 

    Writes the determination or assigns a DHO to write the determination (see DI 33015.020 ), and

  2. b. 

    Cancels (or postpones pending the results of a quality review) any hearing which had been scheduled. See DI 33010.005 for procedures for postponing or canceling the hearing.

NOTE: If the quality review shows the determination to be deficient, the claims folder will be returned to the DHU for a hearing.

3. Case not returned for development or fully favorable decision not warranted

Resume the DHU business process.

DI 33010.010 Disability Hearing Officer (DHO) Review of the Claims Folder

A. Purpose for folder review

Prior to the hearing, the DHO receives the claims folder to review. This review is for the DHO to become familiar with relevant evidence and to pinpoint the key issues expected to arise in the hearing.

B. Reviewing the folder

1. DHO folder review responsibilities

  1. a. 

    Read the entire claims folder to ensure that proper development has occurred, and that the Summary of Evidence is complete and accurate.

  2. b. 

    Complete the review far enough in advance of the hearing to ensure all issues are addressed in a timely manner.

  3. c. 

    Identify issues not already reviewed or identified by clerical staff or the supervisory hearing officer (SHO).

  4. d. 

    If the evidence supports a fully favorable determination, write the determination and cancel the hearing if scheduled.

  5. e. 

    If the evidence supports a fully favorable determination, but the beneficiary (or recipient) or representative is already present at the disability hearing unit (DHU), proceed with the hearing. The DHO's determination is not annotated to show that a fully favorable decision could have been made without holding a hearing.

2. The DHO's review may include the following materials:

  1. a. 

    SSA-408 Route Slip (in paper claims) or SSA-5002 Report of Contact containing any special situations, e.g., 301, adverse effect material, drug addiction and alcoholism (DAA), etc.

  2. b. 

    SSA-454-BK Continuing Disability Review Report, the determination under appeal and rationale, and the notice to the beneficiary (or recipient).

  3. c. 

    SSA-3441-BK Disability Report - Appeal or SSA-3441-BK-SP Disability Report- Appeal Spanish.

  4. d. 

    SSA-789 Request for Reconsideration-Disability Cessation Right to Appear or Modernized Supplemental Security Income Claims System (MSSICS) generated printout.

  5. e. 

    SSA-887 Summary of Evidence.

  6. f. 

    Relevant medical or vocational information.

  7. g. 

    Previous notice(s) to beneficiary (or recipient).

  8. h. 

    Relevant impairment severity assessment forms. See DI 33010.001D for additional details.

DI 33010.015 Adverse Effect

A. Policy regarding adverse material

  • Since beneficiaries (or recipients) generally review the claims folder before the hearing, the disability determination services (DDS) and disability hearing officer (DHO) are responsible for identifying adverse effect material. See DI 29025.005 for DDS's action.

  • An adverse effect is a consequence likely to occur if granting direct access to an individual’s medical records is expected to cause:

    • A disruption of the doctor-patient relationship;

    • An interference with the individual's medical treatment or management; or

    • A negative effect on the individual in some other way.

  • If the beneficiary (or recipient) has an appointed representative, the entire claims folder, including adverse effect material, may be disclosed to the appointed representative and beneficiary (or recipient) in the representative's presence. Personal information about others cannot be shared with the beneficiary (or recipient) unless specifically authorized by the other individual.

  • See GN 03340.035 for additional policy on adverse effect.

B. Actions when adverse material may be present

1. Disability hearing unit (DHU) staff actions

Alert the supervisory hearing officer (SHO) or DHO of potentially adverse material identified at the pre-hearing level or that you identify during the review of the claims folder.

2. SHO or DHO actions

a. Review the claims folder

  • Determine the appropriate course of action. Generally, any report used in making the disability determination must be disclosed to the beneficiary (or recipient) and appointed representative, if applicable.

  • If you decide that the material is not truly adverse, disclose it to the beneficiary (or recipient). The fact that a report is marked “Confidential” or “Not To Be Disclosed” does not necessarily mean that the information in the report would truly have an adverse effect. Some sources routinely stamp reports in this fashion.

b. Beneficiary (or recipient) has an appointed representative

  • The DHU can disclose the entire claims folder, including adverse effect material, to the representative and beneficiary (or recipient) in the appointed representative's presence.

  • Consider a phone contact with the appointed representative prior to the hearing date and greet the appointed representative to explain the situation when he or she arrives for claims folder review.

c. Beneficiary (or recipient) does not have an appointed representative

  • Consider whether the report in question would be material to the disability determination.

  • Consider temporarily eliminating the report from the claims folder if the findings in the report duplicate others in the folder or if the report contains no objective or otherwise useful information. Eliminate reference(s) to the report, if any, from the Summary of Evidence and do not use the report in determining disability.

  • When an adverse effect is likely, individuals must identify in writing a "designated representative" to receive his or her medical records. A “designated representative” is different from an “appointed representative.” See GN 03340.035C Access to Medical Records for the definition of "designated representative" and complete instructions on identifying a designated representative.

DI 33010.020 Return for Additional Development (RAD)

A. Definition of a RAD

A RAD is the return of a case to the development unit for additional evidence.

B. When additional development is needed

1. A RAD occurs:

When the disability hearing officer (DHO), upon concurrence of the supervisory hearing officer (SHO), believes the record contains insufficient evidence upon which to hold the hearing or to base a determination.

  • Before the hearing, e.g., upon the SHO's or DHO's review, if it is believed additional development is needed OR

  • After the hearing, when in the course of the hearing, new evidence is discovered, DHO observations indicate that development is needed, or some element of the adjudicative process was overlooked.

2. State disability hearing units (DHU)

In a State DHU, local business process determines whether the DHO undertakes the development or the case is returned to the development unit.

3. Federal DHUs

In a Federal DHU, the DHOs route cases to the disability determination services (DDS) or proper unit for foreign and railroad cases, for additional development.

C. Requesting additional development

1. Return of case to development unit

  1. a. 

    A RAD must be approved by SHO.

  2. b. 

    Prepare an SSA-5002 Report of Contact that includes the following information:

    1. 1. 

      the name of the DHO,

    2. 2. 

      whether the hearing has occurred or whether the beneficiary (or recipient) waived his or her appearance, and

    3. 3. 

      what additional development is needed.

  3. c. 

    Document the DHU folder.

  4. d. 

    Route the claim folder to the DDS or appropriate unit.

  5. e. 

    Notify the beneficiary (or recipient) and appointed representative of the action taken, and that there will be a delay pending further development.

2. If the case is returned to the DHU

Give the beneficiary (or recipient) and appointed representative the opportunity to review and comment on any evidence obtained by the DHU after a hearing before issuing an unfavorable determination. See DI 33015.035 for additional instructions.

DI 33010.025 Spanish Notices

A. Who receives Spanish notices

Generally, the field office (FO) identifies beneficiaries (or recipients) or representative payees requiring Spanish notices. The claims folder and the Social Security Administration Data Acquisition and Response System (SSADARS) printout should reflect the need for Spanish language notices.

A Spanish cover letter may be used if the Spanish version of the notice is not available at the disability hearing unit (DHU).

Spanish notices are sent to the beneficiary (or recipient) or representative payee if one of the following criteria are met:

  1. 1. 

    Born in Puerto Rico or a country where Spanish is the predominant language;

  2. 2. 

    With Spanish surnames;

  3. 3. 

    Living in a known Spanish speaking area;

  4. 4. 

    Whose FO interview was conducted in Spanish or with the assistance of an interpreter;

  5. 5. 

    Appear to have difficulty with English, but appearing to be familiar with Spanish;

  6. 6. 

    Requesting Spanish notices; or

  7. 7. 

    There is another indication that Spanish notices could be useful, and the individual agrees when asked by the FO if he or she would like to receive Spanish communications.

B. DHU discovers need for Spanish notices

When the DHU discovers the need for Spanish notices:

  1. 1. 

    Annotate the DHU folder,

  2. 2. 

    Update the scheduling information to ensure that appropriate notices are sent, and

  3. 3. 

    Notify the FO and disability determination services (DDS) of the Spanish notice requiremen.t

C. Waiving the Spanish notice

A beneficiary (or recipient) who falls within one of the criteria in subsection A above will not receive a Spanish notice if:

  • The person signs an SSA-381-SP Waiver of Right to Receive Notices in Spanish, waiving the right to receive translated notices, and

  • The claims folder contains documentation to show that the person does not need translated notices, e.g., English-speaking and English-educated beneficiary (or recipient).

D. Completing the Spanish notices

  1. 1. 

    Write the beneficiary's (or recipient's) name, address and Social Security number in English on the English and Spanish versions of the notice.

  2. 2. 

    Write the date in Spanish on the Spanish version of the notice (i.e., (day) de (month de 20XX ).)

  3. 3. 

    The Spanish translation for each month is:

January (enero)

February (febrero)

March (marzo)

April (abril)

May (mayo)

June (junio)

July (julio)

August (agosto)

September (septiembre)

October (octubre)

November (noviembre)

December (diciembre)

E. Issuing the Spanish notices

  1. 1. 

    Staple the Spanish notice on top of the English notice.

  2. 2. 

    Send scheduling and determination notices printed in both English and Spanish to the beneficiary (or recipient), and representative, if any.

  3. 3. 

    Place both copies of both the Spanish and English notices in the claims folder.

NOTE: Spanish notices are not required in foreign claim cases

DI 33010.030 Disability Hearing Unit (DHU): Interpreters for Beneficiaries (or Recipients) with Limited English Proficiency (LEP) or Individuals Requiring Language Assistance

The disability determination services (DDS) will provide an interpreter free of charge to any beneficiary (or recipient) requesting language assistance, or when it is evident that such assistance is necessary to ensure that he or she is not disadvantaged.

The DDS will not require a beneficiary (or recipient) needing language assistance to provide his or her own interpreter.

The DHU should follow the DDS policy and procedure regarding interpreters for beneficiaries (or recipients) with LEP or individuals requiring language assistance. Refer to DI 23040.001 and DDSAL 919 REV for complete instructions.

DI 33010.035 Beneficiary (or Recipient) Change of Address

A. When there is a change of address

The field office (FO) sends an update after transfer (UAT) to the disability hearing unit (DHU) when the beneficiary (or recipient) or representative updates the FO with a change of address. The FO notifies the DHU by telephone if a disability hearing is scheduled and the change of address involves a change in the disability determination services (DDS) or DHU site.

The DDS sends written confirmation to the DHU and FO when the beneficiary (or recipient) or representative updates the DDS with a change of address.

B. DHU actions upon change of address notification

1. DHU told of change by source other than FO, DDS, or DHU

  1. a. 

    Notify the FO of the change.

  2. b. 

    Notify the DDS of the change if the claims folder is in the DDS.

  3. c. 

    Document confirmation of the change in the claims folder.

  4. d. 

    Determine the service office for the beneficiary's (or recipient's) new address. See GN 00904.010 for detailed instructions.

2. Address change does not change DHU

When the change of address does not change the DHU:

  1. a. 

    Amend the DHU folder and the hearing schedule to reflect the current address,

  2. b. 

    Resend the scheduling notice to the new address if appropriate,

  3. c. 

    Use the new address in all future correspondence, and

  4. d. 

    Upon completion of the reconsidered determination, send the claims folder to the FO servicing the beneficiary's (or recipient's) new address.

3. Address change causes change in DHU

When the change of address causes a change in the DHU:

  1. a. 

    Postpone any scheduled hearing and send a notice of postponement to the beneficiary (or recipient) and representative, which explains the transfer of the case to the new DHU,

  2. b. 

    Document the claims folder. Maintain a record of the transfer in the DHU in-house folder (for paper claims folders), and

  3. c. 

    Transfer the case to the new DHU. Forward any relevant material along with the DHU folder to the new DHU via an SSA-408 Route Slip showing the reason for the transfer for paper cases. See DI 33010.040 for additional information on transferring a case to a different DHU.)

DI 33010.040 Transferring Case to a Different Disability Hearing Unit (DHU)

A. When to transfer the case

1. Reasons for a transfer

  1. a. 

    A beneficiary (or recipient) requests transfer of the case to a different DHU and there is good cause for doing so,

  2. b. 

    A Federal employee made the determination being appealed; these cases must be transferred to a Federal DHU,

  3. c. 

    The Disability Hearing Officer (DHO) has been disqualified. See DI 33015.045 , or

  4. d. 

    The DHU requests transfer.

2. Factors to consider when determining whether good cause exists to change the place of the hearing

  1. a. 

    Reasons for requesting the change in place,

  2. b. 

    The facts supporting the request, and

  3. c. 

    The impact of the proposed change on the efficient administration of the hearing process.

3. Who may grant transfer

Transfers within the State of the beneficiary's (or recipient's) residence may be granted by the supervisory hearing officer (SHO), or the DHO, if so delegated.

Transfers outside the jurisdiction of the State of the beneficiary's (or recipient's) residence may only be granted by the regional office (RO) after it has assessed the reasons for the transfer.

B. Actions required when case is transferred

1. When RO approval is required

  1. a. 

    Contact the RO if assistance is needed as to where a case should be transferred, or the transfer is to a DHU outside the jurisdiction of the State of the beneficiary's (or recipient's) residence.

  2. b. 

    Advise the RO of any problems you have with the case being transferred. This is important because the RO must assure the concurrence of all parties involved before granting the transfer.

NOTE: If necessary, the RO will have a Federal DHO conduct the hearing at a site convenient to the beneficiary (or recipient) and the DHO.

2. DHU action after approval

After the request for transfer has been granted:

  1. a. 

    Adjust the hearing schedule,

  2. b. 

    Prepare an SSA-408 Route Slip for paper cases or SSA-5002 Report of Contact for electronic cases and annotate with the reason for the transfer,

  3. c. 

    Forward the DHU folder with the claims folder (if available) to the receiving DHU,

  4. d. 

    Update the case control system if the claims folder is being forwarded, and

  5. e. 

    Advise the disability determination service (DDS) of the DHU now having jurisdiction if the claims folder is in the DDS.

DI 33010.045 Reimbursement for Travel Expenses to Disability Hearing Site

20 CFR 404.2(c)(6), 20 CFR 404.999b - 404.999d, 20 CFR 416.120(c)(10), 20 CFR 416.1496 - 416.1499

A. Overview of reimbursement

1. Background

  • Travel expenses may be reimbursed for travel exceeding 75 miles one way from residence or office (whichever traveled from) to attend a disability hearing.

  • Reimbursement is limited to travel within the United States (U.S.).

  • Generally, the agency requesting the travel will process the travel reimbursement.

  • Reimbursable travel expenses include the ordinary use of public or private transportation as well as unusual expenses due to special circumstances.

  • Each individual's travel is determined separately when applying the 75-mile rule.

2. Who may be reimbursed

Beneficiary (or recipient), appointed representative and reasonably necessary witnesses.

3. Reimbursement by the Social Security Administration (SSA)

If SSA reimburses an individual for travel, the rules in 20 CFR 404.999b- 404.999d and 416.1496- 416.1499 apply, and the same rates and conditions of payment that govern travel expenses for Federal employees apply.

4. Reimbursement by the State

If the State agency reimburses an individual, reimbursement methods may follow that agency's rules and regulations, which may differ from one agency to another and from Federal reimbursement rates; however, they must comply with provisions in 20 CFR 404.999b- 404.999d and 416.1496- 416.1499.

B. Definitions

1. United States

  1. a. 

    Title II cases: the 50 States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico and the Northern Mariana Islands.

  2. b. 

    Title XVI cases: the 50 States, the District of Columbia and the Northern Mariana Islands.

2. Ordinary travel expenses

Cost of travel by the most economical and expeditious means of transportation available, appropriate to individual's health, considered in the following order:

  1. a. 

    Common carrier (air, rail, or bus),

  2. b. 

    Privately owned vehicles,

  3. c. 

    Commercially rented vehicles and other special conveyances.

3. Unusual travel expenses

Include but not limited to:

  • Ambulance services

  • Attendant services

  • Meals

  • Lodging

  • Taxicabs or similar services

4. Reasonably necessary witness

A reasonably necessary witness is an individual whose presence and testimony the Disability Hearing Officer (DHO) determines is necessary for a fair hearing.

The DHO determines if the presence of a witness is considered “reasonably necessary” for travel reimbursement purposes.

5. Subpoenaed witness

A subpoenaed witness is an individual whom the DHO determines meets the definition of a reasonably necessary witness, is otherwise unwilling to attend the hearing, and is subpoenaed by the DHO.

See DI 33010.050 for more information on subpoenas.

6. Reasonable advance

Reasonable advance means the amount requested does not exceed that which will be paid for travel under 20 CFR 404.999c and 416.1498 .

7. Necessary advance

Necessary advance means that without receipt of the advance payment prior to or on the date of the hearing, the beneficiary (or recipient), representative, or witness would not have funds to travel to and from the hearing site.

8. Geographic area

The geographic area of the office having jurisdiction over the hearing means, as appropriate:

  1. a. 

    The designated geographic service area of the State agency's adjudicatory unit having responsibility for providing the disability hearing; or

  2. b. 

    If a Federal DHO holds the disability hearing, the geographic area of the State in which the beneficiary (or recipient) resides or, if the beneficiary (or recipient) is not a resident of a State, the geographic area of the State in which the DHO holds the disability hearing.

    NOTE: For purposes above, State means a State as used in subsection B.1.

C. Procedures for reimbursement

1. Documentation required for reimbursement of ordinary travel expenses

  1. a. 

    Itemized list of expenses

  2. b. 

    Supporting receipts

2. Additional requirements for unusual travel costs

  1. a. 

    Must be authorized in advance and in writing, unless unexpected or unavoidable

  2. b. 

    Reimbursing agency must approve based on reasonableness and necessity prior to payment

3. Advance payment requests

Travel expenses will generally be reimbursed after the trip; however, travel advances may be authorized if requested and if shown to be reasonable and necessary.

  1. a. 

    Determine if a hearing site closer to the beneficiary's (or recipient's) residence can be used so that reimbursement is not required. If this is not possible:

    1. 1. 

      Do not schedule a hearing until the advance is available.

    2. 2. 

      Reschedule the hearing if necessary when an advance is requested after a hearing has been scheduled, and if the requested advance is reasonable and necessary.

  2. b. 

    When an individual received an advance payment for travel expenses, the individual must, within 20 days after the trip, provide an itemized list of his or her actual travel costs and supporting receipts.

  3. c. 

    The individual also must refund any excess advance payment within 20 days of being notified of an outstanding balance. State disability hearing units (DHU) may have their own time limits in place of the 20-day periods.

4. Location of hearing changed

When, at a beneficiary's (or recipient's) request, a change in the location of a hearing is made from the location selected by the DHU to one farther from the beneficiary's (or recipient's) residence or office, any additional travel expenses of the beneficiary (or recipient), appointed representative, or witness will not be reimbursable.

5. For beneficiaries (or recipients) traveling from outside the U.S.

  1. a. 

    Attempt to hold the hearing at a location convenient for the beneficiary (or recipient) and the DHO.

  2. b. 

    Determine, if necessary, the pro rata share of the fare based on mileage traveled within the U.S.

  3. c. 

    When a beneficiary (or recipient) travels more than 75 miles one way to a hearing after entering the U.S., the beneficiary (or recipient) may be paid for travel expenses for the travel within the U.S.

6. Determine amount payable to subpoenaed witness

Subpoenaed witnesses are paid, under 20 CFR 404.950(d)(4) and 416.1450(d)(4), the same fees and mileage they would receive if they had been subpoenaed by a Federal district court.

7. Determine maximum amount payable to appointed representative

  1. a. 

    If a State DHU is responsible for holding the hearing:

    • Determine the distance to the hearing site from the farthest point within the designated geographic service area of the State DHU.

    • If the distance exceeds 75 miles, determine the maximum amount allowable for travel between these two points applying the policies cited in A.1. and A.4. above.

  2. b. 

    If a Federal DHU is responsible for holding the hearing:

    • Determine the distance to the hearing site from the farthest point within the appropriate geographic area, i.e., the geographic area of the State in which the beneficiary (or recipient) resides or, if the beneficiary ( or recipient) is not a resident of a State, the geographic area of the State in which the hearing is held.

    • If the distance exceeds 75 miles, determine the maximum amount allowable for travel between these two points applying the policies in A.1. and A.3. above.

D. Examples of appointed representative reimbursement

1. State DHU hearing

Example 1

The distance to the hearing site from the farthest point within the geographic service area of the State DHU responsible for holding the hearing is 142 miles. The appointed representative travels a distance of 225 miles one-way to attend the disability hearing. The amount the appointed representative may be reimbursed will be based on the amount that is payable for traveling 142 miles each way, to and from the hearing.

Example 2

The distance to the hearing site from the farthest point within the geographic service area of the State DHU responsible for holding the hearing is 188 miles. The appointed representative travels a distance of 170 miles one-way to attend the hearing. The amount the appointed representative may be reimbursed will be based on the actual distance traveled.

Example 3

The distance to the hearing site from the farthest point within the geographic service area of the State DHU responsible for holding the hearing is 65 miles. Since the distance between these two points does not exceed 75 miles, the travel expenses of an appointed representative to attend the disability hearing are not reimbursable.

2. Federal DHU hearing

Example 1

The beneficiary (or recipient) is a resident of a State. The distance to the hearing site from the farthest point within the geographic area of the State in which the beneficiary (or recipient) resides is 200 miles. The representative travels a distance of 335 miles one -way to attend the disability hearing. The amount the appointed representative may be reimbursed will be based on the amount that is payable for traveling 200 miles each way, to and from the hearing.

Example 2

The beneficiary (or recipient) is a resident of a State. The distance to the hearing site from the farthest point within the geographic area of the State in which the beneficiary (or recipient) resides is 310 miles. The appointed representative travels a distance of 255 miles one-way to attend the hearing. The amount the appointed representative may be reimbursed will be based on the actual distance traveled.

Example 3

The beneficiary (or recipient) lives outside the U.S. and is not a resident of any State. The disability hearing is held in a State convenient for the beneficiary (or recipient) and the Federal DHO. The distance to the hearing site from the farthest point within the geographic area of the State in which the hearing is held is 190 miles. The appointed representative travels a distance of 265 miles-one way within the U.S. to attend the disability hearing. The amount the appointed representative may be reimbursed will be based on the amount that is payable for traveling 190 miles each way, to and from the hearing.

DI 33010.050 Subpoenas for Testimony and Other Documents

A. Policy on requesting a subpoena

1. Who can request a subpoena

A beneficiary (or recipient) or appointed representative may request that a subpoena be issued for either the appearance of a witness or the production of documents.

Acquiescence Ruling 91-1(5), Lidy v. Sullivan, Right to Subpoena an Examining Physician for Cross-examination Purposes — Titles II and XVI of the Social Security Act, applies to claimants who reside in Louisiana, Mississippi, or Texas at the time of the disability hearing.

2. Requirements for subpoena requests

A request for a subpoena must:

  • Be in writing,

  • Be made at least 5 days before the hearing,

  • Identify the witness or document to be produced,

  • Describe the address or location of the witness or document with sufficient detail to find them,

  • State the important facts expected to be proved, and

  • Indicate why the stated facts could not be proven without issuing a subpoena.

    NOTE: In disability hearing cases, it is unlikely that the subpoena requestor could adequately show why the stated facts could not be proven without issuing a subpoena. Well-developed cases should contain sufficient evidence upon which to base a determination. If there is insufficient evidence, a better way to handle the situation is usually to request additional development.

3. Issuing subpoena

  1. a. 

    The regional commissioner (RC) or the RC's delegate must authorize the subpoena.

  2. b. 

    Issue a subpoena on Form SSA-1272 Subpoena-Disability Hearing. See DI 33095.060 for an exhibit of the form.

  3. c. 

    The disability hearing officer (DHO) is responsible for completing the identifying information on the SSA-1272.

  4. d. 

    The DHO and supervisory hearing officer (SHO) sign and date the SSA-1272.

  5. e. 

    Send the authorized subpoena by registered or certified mail with a return post office receipt request. When the return receipt is received in the RO, the claims folder copy of the subpoena is sent to the DHU.

NOTE: Special procedures are followed in situations where a beneficiary (or recipient) or appointed representative wants to compel the attendance of an individual associated with the development of the case, e.g., disability determination services (DDS) physician, consultative examination (CE) physician, RO physician, etc. In these situations, use the alternative procedures in B.2 below.

B. Requesting the subpoena from the RO

1. When Form SSA-1272 is completed

Retain the DHU control copy of form SSA-1272 Subpoena- Disability Hearing.

Request the subpoena via memorandum with the SSA-1272 attached.

NOTE: If a hearing has been scheduled, you may need to make the request by phone or the hearing may need to be rescheduled to allow time for the subpoena to be issued.

Place the claims folder copy of the SSA-1272 returned by the RO in the claims folder.

2. Request involves persons who worked on case

  1. a. 

    Be sure the requirements in A.2. above have been met.

  2. b. 

    Decide if information can be obtained by written questions. If it can, request that the beneficiary (or recipient) or representative submit written questions.

  3. c. 

    Remove questions that are not relevant, e.g., asking whether the beneficiary (or recipient) is disabled under the Social Security Act.

  4. d. 

    Submit the questions to the DDS with a cover memorandum explaining the situation. Attach copies of the documents in question to refresh the memory of the individual to whom the questions are posed.

  5. e. 

    If written questions are not sufficient to prove the facts in question:

    • send a written memorandum to the DDS or RO requesting the presence of the involved individual,

    • make all efforts to accommodate the schedule of the individual, and

    • give the document in question appropriate weight in consideration of all the evidence of record if the individual refuses to appear. Also, consider whether a CE is warranted.

3. Subpoena denied

  1. a. 

    The person denying the subpoena request, i.e., the DHO, SHO, or the RC or his or her delegate, will explain the rationale for the denial.

  2. b. 

    The DHO will state a subpoena was requested and denied, and will include the rationale for the denial in his or her determination.

4. Subpoena issued-individual fails to comply

If a subpoena was issued and the individual fails to comply with it:

  1. a. 

    Refer the matter to the RO, who, in turn, will refer it to the regional attorney's office, and

  2. b. 

    Send a copy of the subpoena and a cover memorandum explaining the situation to the RO.

DI 33010.055 Withdrawal of Request for Reconsideration of Disability Cessation

A. Policy on withdrawal of a request for reconsideration of disability cessation

1. Who can request a withdrawal

  • A beneficiary (or recipient) may request to withdraw his or her request for reconsideration of an initial cessation determination ( i.e., SSA-789 Request for Reconsideration-Disability Cessation Right to Appear or Modernized Supplemental Security Income Claim System (MSSICS) generated printout).

  • A beneficiary (or recipient) may subsequently request to cancel withdrawal.

2. Requirements for requesting a withdrawal

The withdrawal request must:

  1. a. 

    Be in writing,

  2. b. 

    Be signed by the beneficiary (or recipient), and

  3. c. 

    Indicate that he or she understands the effect of the withdrawal.

3. Who has authority to approve a withdrawal

  • The field office (FO) has the authority to approve the withdrawal request, unless the case involves a foreign claim or a career railroad claim.

  • The Office of Earnings and International Operations (OEIO) approves withdrawals in foreign claims, and

  • The Great Lakes Program Service Center (GLPSC) approves withdrawals in career railroad claims.

B. Responsibilities and procedures on a withdrawal request

1. When the FO notifies disability hearing unit (DHU) of withdrawal request

  1. a. 

    Postpone any scheduled hearing pending disposition of the withdrawal request.

  2. b. 

    Prepare an SSA-5002 Report of Contact (for electronic claim) or SSA-408 Route Slip (for paper claim) to return the claims folder to the FO. Annotate “Forwarded Per Your Request- Beneficiary (or recipient) Filed Request for Withdrawal of His or Her Request for Reconsideration-Disability Cessation”.

  3. c. 

    Update the case control system.

  4. d. 

    Cancel or resume the hearing process based on the response received from the FO as to whether the request for withdrawal was granted or denied.

NOTE: The FO will return the claims folder to the DHU if the FO denies the request for withdrawal.

2. Request made to DHU by in-person contact

  1. a. 

    Advise the beneficiary (or recipient) and appointed representative that a reconsideration is a prerequisite for an administrative law judge (ALJ) hearing, that withdrawing the request for reconsideration will result in the loss of future appeal rights on the claim, and that the initial cessation determination will become final if the request for reconsideration is withdrawn.

  2. b. 

    Assist in preparing a signed statement if the beneficiary (or recipient) insists on withdrawing the reconsideration request.

    NOTE: The statement should be in the beneficiary's (or recipient's) own words and should give a detailed account of the reason for the request.

  3. c. 

    Advise the beneficiary (or recipient) that the FO (OEIO, GLPSC) has the authority to approve the withdrawal, and that his or her case will be forwarded for further processing.

  4. d. 

    Postpone any scheduled hearing pending disposition of the request for withdrawal.

  5. e. 

    Prepare an SSA-5002 Report of Contact or SSA-408 Route Slip to route the case to the FO. (Career railroad claims will be sent to: GLPSC—DRS, P.O. Box 8470-A, Chicago, IL, 60680. Foreign claims will be sent to: Social Security Administration, P.O. Box 17769, Baltimore, MD, 21203, ATTN: Reconsideration Branch.)

  6. f. 

    Annotate the SSA-5002 Report of Contact or SSA-408 Route Slip to show “See Withdrawal Request In File For Your Approval or Denial”.

  7. g. 

    Update the case control system.

3. Request made to DHU by telephone

  1. a. 

    Inquire as to the reason for the request.

  2. b. 

    Advise the beneficiary (or recipient) as shown in B.2.a. above.

  3. c. 

    Inform the beneficiary (or recipient) to call or visit the FO if he or she insists on withdrawing.

  4. d. 

    Stress the importance of contacting the FO immediately so the hearing process can be postponed pending disposition of the withdrawal.

  5. e. 

    Continue with the hearing process unless the FO notifies the DHU that the beneficiary (or recipient) filed a request for withdrawal.

4. Request made to DHU by written contact

  1. a. 

    Prepare an SSA-5002 Report of Contact (for paper case) or SSA-408 Route Slip (for paper case) and route the case to the office having authority to approve withdrawal.

  2. b. 

    Annotate the SSA-5002 Report of Contact or SSA-408 Route Slip to show “See Withdrawal Request In File For Your Approval or Denial”.

    NOTE: If the case is a career railroad case and the written contact does not show that the claimant fully understands the effects of a withdrawal, forward the case to the FO.

  3. c. 

    Proceed as shown in B.1.a, c, and d above.

5. Beneficiary (or recipient) cancels withdrawal request

  1. a. 

    A beneficiary (or recipient) may request to cancel a withdrawal if filed within 60 days from the date he or she receives the notice of approval of withdrawal. (See 20 CFR 404.911(b) and 416.1411(b) for good cause for missing the deadline.)

  2. b. 

    Process the claim as though no withdrawal had taken place if the claims folder contains a request to cancel the withdrawal.

  3. c. 

    Notify the other components involved in this process if you were the component that received the cancellation.

DI 33010.060 Beneficiary (or Recipient) Dies Before Disability Hearing Unit (DHU) Determination is Made

A. Processing hearing determination upon notification of death

1. Notify the office with jurisdiction of the claims folder

Inform the disability determination services (DDS) of the claimant's death if they have the claims folder.

2. If the field office (FO) has not been notified

  1. a. 

    Call the FO immediately to report the claimant's death,

  2. b. 

    If the claims folder is in DHU, review for leads to a substitute party and advise the FO accordingly,

  3. c. 

    Flag the claims folder to show that the hearing decision is pending receipt of an SSA-770 Notice Regarding Substitution of Party Upon Death of Claimant Reconsideration of Disability Cessation,

  4. d. 

    Consider postponing the hearing. See DI 12026.025E.6.a.

3. Substitute party is located by the FO

a. The substitute party wishes to continue with the hearing

  1. 1. 

    Proceed based on information contained on the SSA-770 Notice Regarding Substitution of Party Upon Death of Claimant Reconsideration of Disability Cessation.

  2. 2. 

    Notify the substitute party about the possibility that the disability hearing officer (DHO) could issue a fully favorable determination without conducting a hearing based on available evidence.

b. The substitute party wishes to withdraw the request for a reconsideration

  1. 1. 

    Notify the substitute party about the possibility that the DHO could issue a fully favorable determination without conducting a hearing based on available evidence.

  2. 2. 

    Process the determination if a favorable determination is warranted.

  3. 3. 

    If no purpose would be served in processing the reconsideration,

    1. a. 

      Return the claims folder to the FO,

    2. b. 

      Update the case control system, and

    3. c. 

      Cancel the hearing process upon receipt of a copy of the notice the FO sends to the party advising that the withdrawal has been approved.

4. Substitute party not located by FO

When a substitute party is not located:

  1. a. 

    Resume case processing based on the FO's report of contact showing a substitute party cannot be located,

  2. b. 

    Handle as a waiver of appearance case, and

    1. 1. 

      Send the notice of reconsidered determination to claimant's next of kin, when known or

    2. 2. 

      If unknown, send to “Next of Kin of (name of deceased) ”, and direct to decedent's last known address.

B. References

  • DI 12026.025 Field Office (FO) Processing Guidelines in Requesting a Reconsideration for a Medical Continuing Disability Review (CDR) Determination

  • DI 12095.065 SSA-770 (Notice Regarding Substitution of Party Upon Death of Claimant - Reconsideration of Disability Cessation)

  • DI 29005.025 Individual Dies before a Determination is made on a Request for Reconsideration Continuing Disability Review (CDR)

DI 33010.065 Representation of Beneficiary (or Recipient) at the Disability Hearing Unit (DHU)

A. Introduction

Representation of the beneficiary or (recipient) may occur at any time in the claims process. Therefore, DHU personnel should be familiar with the policies concerning representatives.

B.  Appointment of Representative - General

  • At the initial and reconsideration levels, the beneficiary (or recipient) or representative submits an SSA-1696 Appointment of Representative to the field office (FO) for acknowledgment of the appointment.

  • The DHU does not recognize the representative until the FO accepts and acknowledges the appointment.

  • To ensure that representative information is properly handled, follow the instructions in DI 31001.001B.1. 

  • If the representative information indicates that the representative’s authority ended, refer to DI 33010.065C.6. in this section.

  • When the beneficiary (or recipient) appoints more than one representative see GN 03910.040D.

C. Representation at the DHU

1. Beneficiary (or recipient) expresses interest in being represented at DHU

  1. a. 

    Use the references in DI 33010.065A in this section, to explain who can be a representative, how to appoint a representative, the authority and responsibilities of a representative, and the fee regulations.

  2. b. 

    Avoid influencing the decision regarding whether to appoint a representative.

  3. c. 

    If the DDS or DHU receives a request to obtain or establish representation, instruct the beneficiary (or recipient) to contact the servicing FO for assistance.

  4. d. 

    The servicing FO will provide the beneficiary or recipient with the following:

    1. 1. 

      SSA Publication No. 05-10075 (Your Right to Representation), which is also available on Social Security Online at http://www.socialsecurity.gov/pubs/10075.html ;

    2. 2. 

      Form SSA-1696-U4 Appointment of Representative, which is also available on Social Security Online at http://www.socialsecurity.gov/online/ssa-1696.pdf ; and

    3. 3. 

      A copy of its representative referral list. For more information about the referral list, see GN 03910.030A and the model referral list shown in GN 03910.090A.

2. Representative not yet acknowledged by the Social Security Administration (SSA) attends DHU hearing with the beneficiary (or recipient)

When a representative whose appointment SSA has not yet acknowledged attends a DHU hearing with the beneficiary (or recipient), and the representative wants to review the file before the hearing begins, the disability hearing officer (DHO) does the following:

  1. a. 

    Explains to the representative and the beneficiary (or recipient) that the representative must submit a completed SSA-1696 Appointment of Representative, or equivalent writing, to the servicing FO if the representative has not done so already.

  2. b. 

    Advises the representative that the SSA-1696 Appointment of Representative and other forms and information about representation are located on Social Security Online at http://www.socialsecurity.gov/representation/.

  3. c. 

    Informs the representative and the beneficiary (or recipient) that the DHO does not have the authority to accept documentation to appoint an individual as a representative in dealings with SSA. For more information about the FO’s acceptance of an appointment, see DI 31001.001 and GN 03910.040.

  4. d. 

    Explains to the beneficiary (or recipient) and the representative that until the FO acknowledges the appointment of a representative and notifies the DHU of its acceptance, the representative is an “undesignated individual” whose appointment SSA has not yet accepted. The beneficiary (or recipient) must give SSA permission to disclose information in his or her file to the “undesignated individual.”

  5. e. 

    Provides Form SSA-3288 Social Security Administration Consent for Release of Information in GN 03305.999 and on Social Security Online at http://www.socialsecurity.gov/online/ssa-3288.pdf.

  6. f. 

    Instructs the beneficiary (or recipient) to complete the SSA-3288 Social Security Administration Consent for Release of Information, indicating that he or she authorizes the DHO to release information from the beneficiary's (or recipient's) file. The DHO takes the form before the “undesignated individual” can view the claimant’s file at the DHU hearing.

3. Appointed representative asks DHU to deal directly with the beneficiary (or recipient)

When SSA acknowledges a representative's appointment, and the representative asks the DHU to deal directly with the beneficiary (or recipient), take the following actions:

  1. a. 

    Obtain written confirmation from the appointed representative that he or she wants the DHU to deal directly with the beneficiary or recipient;

  2. b. 

    Create an SSA-5002 Report of Contact and record the following information:

    1. 1. 

      The name and address of the appointed representative,

    2. 2. 

      A statement that the appointed representative wants all or some of the contacts to be through the beneficiary (or recipient),

    3. 3. 

      Who engaged the appointed representative, and

    4. 4. 

      A statement that you advised the appointed representative and beneficiary (or recipient) of the fee authorization and payment procedures.

4. Documentation

  1. a. 

    Add flag "Representative Involved" to the Certified Electronic Folder (CEF) or for paper folders attach the SSA-1128 Attorney Representation. See FO instructions in GN 03910.040H.7. and DI 31001.001A.5.

  2. b. 

    Annotate all evidence (including duplicative evidence) the representative submits to show, “Submitted by (full name) on (date),” and place in the claims folder.

  3. c. 

    Use an SSA-5002 Report of Contact to briefly describe telephone and personal contacts with the appointed representative, or services the appointed representative performed. Each entry must be dated.

  4. d. 

    Add copies of all correspondence in the claims folder.

5. Fees

SSA generally assumes that an appointed representative will charge a fee for services provided unless the appointed representative waives the fee (e.g., when completing the SSA-1696-U4 Appointment of Representative). If an appointed representative works with a legal services organization known to provide legal services free of charge, the FO or Processing Center may contact the representative to determine whether the appointed representative wishes to waive the fee.

The DHU does not have the authority to approve or disapprove fee agreements or authorize fees under the fee petition process.

Forward any fee petition erroneously sent to the DHU so that it can be associated with the claims folder. For routing instructions, see GN 03930.025.

6. Representative’s authority ends

If the beneficiary (or recipient) notifies the DHU that he or she has revoked the representative’s authority or appointment, or the representative notifies the DHU that the representative has withdrawn from the case, follow DI 31001.001B.3. and GN 03910.040C.

For more information on when a representative’s authority ends, see GN 03910.060.

D. References

  • GN 03920.000 Administering Representatives Fees Provisions - Table of Contents

  • GN 03930.000 Fee Authorization Under the Fee Petition Process - Table of Contents

  • GN 03940.000 Fee Authorization Under the Fee Agreement Process - Table of Contents

  • DI 81020.085 Certified Electronic Folder (CEF) Flags

DI 33010.070 Suspected Violations, Suspension or Disqualification of Representatives

A. Procedures for suspected violations

The disability determination services (DDS) or disability hearing officer (DHO) may discover fee violation, possible fee violation, non-fee violation or criminal violation.

See GN 03970.010 for examples and definitions of violations and non-violations.

1. Suspected criminal violation referrals

Report any suspected criminal activity that involves an appointed representative to the Office of the Inspector General (OIG) via the Electronic Form SSA-8551 (e8551) (Reporting Form for Programmatic Fraud). You must send a copy of the e8551 referral that you send to OIG to the Office of the General Counsel (OGC).

See GN 03970.016 for detailed procedures on suspected criminal violation referrals.

2. Suspected fee violation, possible fee violation and non-fee violation referrals

The DDS staff should follow their internal procedures to collect supporting information and refer an alleged violation to the appropriate office.

See GN 03970.017 for detailed procedures on suspected fee violations, possible fee violations and non-fee violations referral.

B. Procedure for suspension or disqualification of appointed representatives

1. Person suspended or disqualified attempts to act as an appointed representative

  • Follow GN 03970.060 when a suspended or disqualified individual attempts to act, directly or indirectly, as an appointed representative.

2. Conflict of interest involved

  • Process per GN 03980.000 if a conflict of interest is involved.

  • Contact the regional office (RO) if unsure as to whether an individual served as a senior level employee.

C. Reference

  • GN 03970.000 Suspension or Disqualification of Representatives - Table of Contents

  • GN 03980.000 Conflict of Interest - Table of Contents


DI 33010 TN 3 - Procedure for Processing Before the Disability Hearing - 9/05/2019