Identification Number:
DI 33015 TN 12
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
Title:Procedures for Disability Hearing and Related Policy Issues
Type:POMS Transmittals
Program:Disability
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part DI – Disability Insurance
Chapter 330 – Disability Hearing Unit Procedures
Subchapter 15 – Procedures for Disability Hearing and Related Policy Issues
Transmittal No. 12, 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 33015.001 Arrival of Beneficiary (or Recipient) and Representative at Disability Hearing Unit (DHU)

Changed title from Arrival of Claimant/Representative at Disability Hearing Unit (DHU) to Arrival of Beneficiary (or Recipient) and Representative at Disability Hearing Unit (DHU).

Implemented plain language updates.

Updated format for clarity.

DI 33015.005 Beneficiary (or Recipient) and Representative Review of Claims Folder

Changed title from Claimant/Representative Review of Claims Folder to Beneficiary (or Recipient) and Representative Review of Claims Folder.

Implemented plain language updates.

Updated format for clarity.

DI 33015.010 Security — Personnel Protection

Moved entire contents to DI 33010.010.

Changed title from Disability Hearing Officer's Review of the Claims Folder to Security — Personnel Protection.

Replaced content with DI 33010.075 Security — Personnel Protection.

Implemented plain language updates.

DI 33015.021 Beneficiary or Recipient Does Not Appear at Disability Hearing or Waives Right to Appear at Disability Hearing

Changed title from Claimant Does Not Appear at Disability Hearing or Waives Right to Appear at Disability Hearing to Beneficiary or Recipient Does Not Appear at Disability Hearing or Waives Right to Appear at Disability Hearing.

Implemented plain language updates.

Updated format for clarification.

Added clarification for child claims.

DI 33015.022 Disability Hearing Officer (DHO) Who Held Hearing Becomes Unavailable to Write Decision

Implemented plain language updates.

Updated format for better sequence.

Updated POMS links.

DI 33015.025 Preparing the Notice of the Disability Hearing Officer's (DHO) Determination

Updated title to reflect regulatory use of determination.

Implemented plain language updates.

Removed chart, removed outdated instructions and reorganized instructions.

Added instructions for legally competent adults.

DI 33015.030 Holding the Record Open for Submission of Documentary Evidence Post-Hearing

Changed title from Holding the Record Open for Documentary Evidence - Post-Hearing Development to Holding the Record Open for Submission of Documentary Evidence Post-Hearing.

Implemented plain language updates.

Updated link for when DHO initiates the development.

DI 33015.032 Continuance of Disability Hearing

Implemented plain language updates.

Reorganized content for better sequence.

DI 33015.033 Whereabouts Unknown (WU) Occurs at the Disability Hearing Unit (DHU) Level

Moved entire content to DI 33010.020.

Changed title from Returns for Additional Development (RADS) to Whereabouts Unknown (WU) Occurs at the Disability Hearing Unit (DHU) Level.

Replaced content with new instructions for Whereabouts Unknown at the DHU level.

DI 33015.035 Beneficiary's or Recipient's Right to Consultant Information

Changed title from Claimant’s Right to Consultant Information to Beneficiary's or Recipient's Right to Consultant Information.

Implemented plain language updates.

Added relevant CFR citations.

Added examples of good cause.

DI 33015.040 Postponements and Changes in Place of the Disability Hearing

Moved entire content of POMS to DI 33010.005.

POMS will be archived.

DI 33015.045 Disqualification of Disability Hearing Officer (DHO) or Supervisory Hearing Officer (SHO)

Updated title to reflect content of POMS.

Implemented plain language updates.

Moved POMS link to reference section.

DI 33015.050 Adverse Effect

Moved entire contents to DI 33010.015.

POMS will be archived.

DI 33015.055 Adoption of Prior Decisions

Implemented plain language updates.

DI 33015.060 New Application Filed and Request for Reconsideration of Disability Cessation Pending

Implemented plain language updates.

Added relevant CFR references to citation section.

Conversion Table
Old POMS ReferenceNew POMS Reference
DI 33015.010DI 33010.010
DI 33015.033DI 33010.020
DI 33015.040DI 33010.005
DI 33015.050DI 33010.015

DI 33015.001 Arrival of Beneficiary (or Recipient) and Representative at Disability Hearing Unit (DHU)

Procedures upon arrival

  1. 1. 

    When individuals arrive to the DHU, greet them promptly and courteously.

  2. 2. 

    Ask if witnesses will be present at the disability hearing.

  3. 3. 

    Inform the arrival(s) of any last minute changes or delays of the hearing. Consult with the supervisory hearing officer (SHO) if the changes or delays present a problem.

  4. 4. 

    Encourage the beneficiary's (or recipient's) and appointed representative's review of the claims folder.

  5. 5. 

    Escort them to an area, which affords privacy if they wish to review the folder, but be present during the review and available to answer questions.

  6. 6. 

    Request the beneficiary (or recipient) and appointed representative to hold questions relating to legal, adjudicative or determination making for response by the disability hearing officer, or refer such question to the SHO prior to the hearing, if necessary.

DI 33015.005 Beneficiary (or Recipient) and Representative Review of Claims Folder

Citations: 20 CFR 404.916(b)(3), 416.1416(b)(3)

A. Offering opportunity for claims folder review

The regulations provide that a beneficiary (or recipient) and the appointed representative may review the evidence in the claims folder, either on the date of the disability hearing or at an earlier time, at the beneficiary's (or recipient's) or the appointed representative’s request.

  1. 1. 

    The disability hearing officer (DHO) will advise the beneficiary (or recipient) and appointed representative in the hearing notice that if he or she wants to look at the case file before the hearing date, he or she will need to contact the disability hearing unit (DHU) or Social Security Administration (SSA) office in his or her area to arrange another time or place to review the file.

  2. 2. 

    For suggested notice language, see DI 33010.080 Language for Disability Hearing Scheduling Notice for Domestic Claims-Exhibit, or for foreign claims see DI 33010.085 Language for Disability Hearing Scheduling Notice for Foreign Claims – Exhibit.

  3. 3. 

    The DHO will burn an encrypted compact disc (CD) of the documents used in the evidence of record if the beneficiary (or recipient) or appointed representative requests to review the folder prior to the date of the hearing for an electronic claim. Annotate this action on an SSA-5002 Report of Contact and include the date the CD was burned. Do not send a CD to an incarcerated individual.

  4. 4. 

    The beneficiary (or recipient) or appointed representative may review a paper folder at the field office (FO) or the DHO if he or she requests to review the folder prior to the date of the hearing.

  5. 5. 

    See GN 03340.000 Access to SSA Records for additional information.

B. DHO preparation of claims folder for review

Claims folders (comparison point decision (CPD) and reconsideration) may be completely electronic, partially electronic or completely paper.

1. General preparation for folder review:

  1. a. 

    Only include material relating to the beneficiary (or recipient).

  2. b. 

    Provide a paper copy of the medical evidence contained in the certified electronic folder (CEF) only if there is no means of viewing the evidence electronically or if the beneficiary (or recipient) or appointed representative requests a paper copy.

  3. c. 

    The DHO may scan all relevant information from the CPD folder into the CEF prior to burning a CD.

  4. d. 

    Medical assessment forms (e.g., SSA-416 Medical Evaluation, SSA-4734 Physical Residual Functional Capacity, SSA-2506-BK – Psychiatric Review Technique Form) may be found on the disability determination explanation (DDE) in Section A Payment Documents/Decision (Yellow Front) or in Section F Medical Records (Yellow Back).

  5. e. 

    Handle adverse effect material as set forth in DI 33010.015 Adverse Effect.

2.  If a portion of the folder is electronic:

  1. a. 

    Burn a CD containing the evidence used to make the determination. This includes medical assessment forms and any documents in sections E. Disability Related Determination (blue) and F. Medical Records (yellow back) of the electronic folder.

  2. b. 

    The CD should be a “read only” CD. Refer to DI 81001.035 Copying a Certified Electronic Folder (CEF) to Compact Disc (CD) - for detailed instructions on burning a CD.

  3. c. 

    Handle adverse effect material as set forth in DI 33010.015 Adverse Effect.

3. If a portion of the folder is paper:

  1. a. 

    Provide a paper copy of the medical evidence used to make the medical determination. This includes medical assessment forms and any documents in sections E. Disability Related Determination (blue) and F. Medical Records (yellow back) of the paper folder.

  2. b. 

    Handle adverse effect material as set forth in DI 33010.015 Adverse Effect.

C.  Access at the DHU

  1. 1. 

    A DHU or SSA employee must be present during the review and available to answer questions.

  2. 2. 

    Provide an area that affords privacy where the paper folder can be reviewed or a workstation or laptop that only has access to the CD.

  3. 3. 

    For information concerning disclosure of medical records to a representative, see GN 03910.025 Authority of Representative, and GN 03305.025 Disclosure to Legal Aid Groups, Private Law Firms, and Appointed Representatives.

  4. 4. 

    The DHO must ensure that any Personally Identifiable Information on a laptop computer, CD, or paper folder is kept secure.

  5. 5. 

    If the beneficiary (or recipient) or representative requests the CD, provide it to them at no charge. See DI 81001.030 Claimant or Representative Requests a Copy of the Claims Folder.

  6. 6. 

    If the beneficiary (or recipient) or appointed representative does not request the CD, destroy the CD. See DI 81020.055E Document Retention and Destruction for instructions on how to destroy the CD and other sensitive materials.

DI 33015.010 Security — Personnel Protection

A. Disability Hearing Unit (DHU) responsibilities of personnel protection

  • The DHU personnel are to be aware of plans for employee protection (e.g., fire, bomb threats, and hostile acts) already established at the place of hearing.

  • The DHU staff are to be alert to possible serious disturbances that may occur before, during, and after a hearing.

  • The DHU staff must alert local management staff and the guard of any potential issues with hearing participants.

B. Procedure for out-of-office hearing

Take necessary precautions when conducting an out-of-office hearing;

  • Try to select remote sites with other people in the vicinity, and

  • Advise security personnel of pending hearings.

C. Reference

See DI 39567.045 Physical Security Guidelines for Disability Hearing Units (DHUs).

DI 33015.021 Beneficiary (or Recipient) Does Not Appear at Disability Hearing or Waives Right to Appear at Disability Hearing

A. Policy if beneficiary (or recipient) does not appear or waives right to appear

If a beneficiary (or recipient) waives his or her right to appear at the hearing, or does not appear (and there are no special handling circumstances), a disability hearing officer (DHO) will prepare and issue the determination based on the information in the claims file. The determination will include any additional evidence obtained that results from the request for reconsideration.

The DHO may reschedule a hearing if there is good cause for the beneficiary's (or recipient's) failure to appear at the scheduled hearing.

B. Procedure if beneficiary (recipient) fails to attend the scheduled hearing

1. Favorable determination supported by evidence in file

If the DHO can make a favorable determination without the beneficiary's (or recipient’s) presence at a hearing, then the DHO will make the determination.

2. Favorable determination is not possible

a. The DHO must consider special handling considerations. These include:

  • Homelessness,

  • Illiteracy,

  • Hospitalization,

  • Mental impairment,

  • Limited English Proficiency (LEP), and

  • Communication-related disabilities (vision, speech, or hearing).

b. If special handling situations are present:

  • The DHO must attempt to contact the beneficiary (or recipient) by phone or call-in letter if phone contact is unsuccessful to determine if there was good cause for not attending the scheduled hearing.

  • Carefully consider any request for accommodation (e.g., interpreter, additional time to comply).

  • Involve a designated third party whenever appropriate. See guidelines for involving appointed representatives, applicants, and third-party contacts with requests for claimant evidence or action in DI 23007.005D.

  • Document your actions in response to any request for accommodation.

  • The DHO will make a determination based on the evidence of record if the beneficiary (or recipient) does not respond within 15 days from the date of the letter.

  • Reschedule the hearing if the beneficiary (or recipient) responds and the DHO finds good cause.

c. Special considerations for childhood cases

  • Failure to appear for a scheduled hearing is not an automatic basis for termination.

  • Special efforts must be made as in DI 25205.020 since children are not ordinarily in a position to pursue their claims independently.

C. Circumstances that generally establish good cause

  • The DHO should determine whether good cause exists for failure to appear. The DHO must base his or her determination on the facts of the case.

  • Examples of good cause include but are not limited to: no proper notification of the scheduled hearing, hospitalization, illness, or unforeseeable event.

D.  Writing the determination

The DHO prepares a determination based on the evidence in file when the beneficiary (or recipient) waives his or her right to appear at the hearing or the DHO finds no good cause for the beneficiary's (or recipient's) failure to appear. Follow the instructions in DI 33015.020 with the following considerations:

  • Focus independently on relevant items on the “Disability Hearing Officer's Report of Disability Hearing.” For example, rather than eliciting the issues that the DHO will decide at the hearing, frame the issues by reference to the documentary evidence.

  • Evaluate any new documentary evidence submitted.

  • Remember the DHO may use observations the claims representative makes since they are part of the documentary evidence.

  • Make a determination based on all of the evidence in file.

DI 33015.022 Disability Hearing Officer (DHO) Who Held Hearing Becomes Unavailable to Write Determination

A. Policy regarding situations when the DHO becomes unavailable

When the DHO who held the hearing becomes unavailable (e.g., due to illness, injury, or resignation) to write the determination, another disability hearing must be offered before an unfavorable determination is issued.

B. Actions required when DHO becomes unavailable

1. Fully favorable determination warranted

Have another DHO prepare the determination if the evidence supports a fully favorable determination.

2. Unfavorable determination indicated

  1. a. 

    Schedule another hearing per DI 33010.005.

  2. b. 

    Modify the notice language in DI 33010.080 or DI 33010.085 to show the reason for scheduling another hearing. An example of such a modification is in DI 33015.065.

  3. c. 

    Place a copy of the notice in the claims folder if the folder is paper.

3. Beneficiary (or recipient) does not want another hearing

  1. a. 

    Cancel the hearing as outlined in DI 33010.005.

  2. b. 

    Document the claims folder to show that beneficiary (or recipient) declined the offer of another hearing.

  3. c. 

    Prepare an SSA-5002 Report of Contact to document the folder if the beneficiary (or recipient) declined the hearing by a manner not in writing, e.g., telephone.

  4. d. 

    A DHO prepares the determination based on the evidence of record.

DI 33015.025 Preparing the Notice of the Disability Hearing Officer's (DHO) Determination

A. Notice preparation policies

  • Prepare and release a notice along with the DHO's determination. See DI 33095.100- DI 33095.116 .

  • Prepare and release auxiliary notices, as shown in C. below, to any auxiliary for whom the number holder is not the payee. An auxiliary is any person other than the number holder (NH) entitled to benefits on the earnings record of a living NH.

  • When a legally competent adult beneficiary (or recipient) has a representative payee, the disability determination services should send the cessation notice to the competent adult beneficiary (or recipient). Also, send a modified copy of the cessation notice to the representative payee. The representative payee's notice should not contain personal information. Include the decision paragraph (4080-4096) and the sentence “(Beneficiary (or Recipient) Name) has been given a more detailed explanation of our determination” on the personalized attachment.” See NL 00708.100 Numbered Paragraphs.

B. Spanish and foreign notices

  • See DI 33010.025 Spanish Notices for determining when a Spanish notice is required.

  • See DI 33095.130 Notice of Disability Hearing Decision (Foreign Claims) (Reproduced Locally) for instructions and notice language noting that for foreign claimants, the determination notice will be prepared locally (a printed notice is not available for foreign cases).

C. Determining which notice(s) to use:

1. Statutory Benefit Continuation (SBC) is not offered:

  • SSA-L1674-U2 (Title II primary)

  • SSA-L1648-U2 (auxiliary)

  • SSA-L1678-U2 (Title XVI)

2. SBC was elected at reconsideration and is offered again at the administrative law judge (ALJ) hearing level

  • SSA-L1675-U2 (Title II primary)

  • SSA-L1656-U2 (auxiliary)

  • SSA-L1680-U2 (Title XVI)

3. SBC was not elected at reconsideration and is offered again at the ALJ hearing level

  • SSA-L1677-U2 (Title II primary)

  • SSA-L1658-U2 (auxiliary),

  • SSA-L1679-U2 (Title XVI)

4. The DHO affirms the determination under appeal and allows a new claim at the same time

  • Send the SSA-L1674-U2 (Title II) or SSA-L1678-U2 (Title XVI) with the appropriate fill-in.

  • Only one notice is needed to cover both DHO determinations.

5. The DHO affirms the determination under appeal and denies the new claim at the same time

  • Send the correct notice for the determination under appeal.

  • Make sure the denial of the new claim is explained in the DHO's determination.

  • Only one notice is needed to cover both DHO determinations.

6. A concurrent title II/XVI case is involved

  • Prepare a separate determination notice for each title.

D. Mailing the notices

1. Policy for releasing notices

  • Release all completed and dated notices to the beneficiary (or recipient) promptly, unless the case is selected for quality review.

  • Complete instructions for releasing notices are found in NL 00603.105.

  • Insert the original notice in an envelope and mail it to the beneficiary (or recipient) along with the appropriate pamphlet, if any. Refer to NL 00603.115 .

2. Case is selected for quality review

  • Leave the notice undated.

  • The reviewing component will date and release the notice.

3. Case is not involved in quality review

  • Date stamp the notice indicating when it and the determination were mailed to the beneficiary (or recipient).

4. A concurrent Title II/XVI case is involved

  • Attach the Title II notice and the Title XVI notice to a photocopy of the determination.

  • Both notices may be mailed together in one envelope.

DI 33015.030 Holding the Record Open for Submission of Documentary Evidence Post-Hearing

A. Request to submit evidence post-hearing

At the beneficiary's (or recipient's) request, the disability hearing officer (DHO) may allow up to 15 days after the hearing for receipt of evidence which was not available at the hearing if:

  • The DHO determines the evidence has a direct bearing on the outcome of the hearing; and

  • The evidence could not have been obtained before the hearing.

NOTE: The DHO applies the two factors in a flexible manner.

B. Procedures for request to submit post-hearing evidence

  1. 1. 

    Annotate the hearing report to reflect the beneficiary's (or recipient's) request and the DHO's disposition. Be specific as to the evidence the claimant wishes to submit.

  2. 2. 

    Deny the request for time to submit the evidence if there is sufficient evidence upon which to base a determination and the allegations of what is contained in the new evidence does not appear to change the result.

  3. 3. 

    Allow the beneficiary (or recipient) a sufficient amount of time to submit the evidence if it appears that the evidence is valuable and may be the dispositive piece of evidence. This is true even if it appears the evidence may have been available earlier.

  4. 4. 

    Allow only the amount of time needed to submit the evidence if the beneficiary (or recipient) can reasonably secure it in less than 15 days. The DHO uses discretionary judgement to determine if additional time is necessary.

  5. 5. 

    Document the claims folder to reflect the date the DHO granted the request to hold the record and diary the case for the date the evidence is due.

NOTE: See DI 33010.020 Return for Additional Development (RAD) when the DHO initiates additional development, not the beneficiary (or recipient).

DI 33015.032 Continuance of Disability Hearing

A. Policy concerning a disability hearing continuance

  • Continuances occur when either the beneficiary (or recipient) or representative or one or more witnesses have good cause (see 20 CFR 404.914(c)(2) and 416.1414 (c)(2)) for failing to appear at the scheduled hearing.

  • Continuances may be granted at the request of whoever appears at the hearing. If no one appears at the hearing (or asks for postponement) and special handling considerations are followed, the determination is based on the record.

  • The disability hearing officer (DHO) is responsible for deciding whether to grant a continuance.

  • Continuances may also be initiated by the DHO, e.g., when it appears at the hearing that an interpreter is unqualified to serve.

B. Definitions related to a continuance

1. Continuance

The adjourning and reconvening of the disability hearing at a later date.

2. Expert witnesses

Individuals who can offer professional testimony with regard to the beneficiary's or recipient's impairment(s) or ability to work, e.g., physicians, recognized vocational experts, etc.

C. Procedure for continuance request

1. Beneficiary (or recipient) or representative fails to appear

  1. a. 

    Ask the individual who has appeared to explain why the beneficiary (or recipient) or representative failed to appear and why the person's presence is necessary.

  2. b. 

    Explore the possibility of holding the hearing with the individual who has appeared. Make it clear that you will continue the hearing at a later date if the person appearing does not wish to proceed or if you believe the non-appearing person is crucial to that hearing.

    Example: A beneficiary's (or recipient's) attorney does not appear—beneficiary (or recipient) agrees to begin the hearing without the attorney; however, during the hearing, the beneficiary (or recipient) states he or she does not wish to continue without the attorney. Adjourn and reconvene the hearing so the attorney can be present.

  3. c. 

    Use judgment in deciding whether good cause exists to grant another continuance if more than one has already been granted.

2. Witness fails to appear

  1. a. 

    Explain that the hearing is the necessary first step in determining if witness testimony is needed if the beneficiary (or recipient) or appointed representative refuses to proceed with the hearing. Also, explain that if the hearing is not held, the case will be decided on the record. Ensure that everyone understands the consequences of refusing to proceed.

  2. b. 

    Hold the hearing as scheduled.

  3. c. 

    Decide at the conclusion of the hearing whether a continuance is warranted to obtain testimony from the absent witness(es).

  4. d. 

    Consider the following factors in deciding whether to grant a continuance for all witnesses. Use these factors as a balancing test and use discretion and judgment in making the decision.

    • Whether there is good cause for why the witness did not attend the hearing (emergency, surgery, etc.). Determine when the beneficiary (or recipient) or appointed representative was aware that the witness could not attend and whether an attempt was made to postpone the hearing.

    • Whether the testimony of the non-appearing witness(es) is material to the disability determination based on a review of the entire record, including the evidence provided at the hearing. This factor may be especially important in the case of expert witnesses, e.g., the DHO may find that a continuance is warranted to obtain a physician’s testimony on particular points in the adjudication process that may not be reflected in medical reports previously submitted.

3. If continuance not granted

  1. a. 

    Annotate the hearing report form to reflect that a continuance was requested, who requested it, and the reason the continuance was not granted.

  2. b. 

    Proceed with the determination as appropriate.

4. If continuance granted

  1. a. 

    Document the claims folder to reflect that the case was continued, who requested the continuance, and the reason the continuance was granted,

  2. b. 

    Schedule another hearing for the earliest date possible, and

  3. c. 

    Assign the case to the same DHO if a substantive action was taken.

DI 33015.033 Whereabouts Unknown (WU) Occurs at the Disability Hearing Unit (DHU) Level

This section addresses proper handling of WU at the DHU level.

A. Definition of WU

Whereabouts unknown status exists when the Social Security Administration (SSA) or the disability determination services (DDS) cannot locate a beneficiary (or recipient) at the last known address and after completing all required actions to locate the beneficiary (or recipient).

B. Policy for WU at the DHU level

WU may be a Group II exception and considered a reason to find disability has ended without determining the ability to engage in substantial gainful activity (SGA) for adults or whether the impairment still causes marked and severe functional limitations for children.

When an individual timely requests reconsideration of an initial or revised medical cessation determination, he or she has the right to appear at a disability hearing unless he or she waives the right to appear. (CFR 404.914 and CFR 416.1414).

When a WU issue arises, do not return the claim to the field office (FO). The DHU must complete the actions outlined below and make a determination based on the evidence in the file.

Attempt to locate the beneficiary (or recipient) expeditiously upon receipt of returned mail.

NOTE: Do not propose a cessation if the disability hearing officer (DHO) is able to make a favorable determination with the evidence in the file.

C. Procedures for WU at the DHU level

1. Required development for WU at the DHU

If the evidence in file is not sufficient to support a fully favorable determination, the DHO must complete the following:

  1. a. 

    Complete all development not requiring the beneficiary's (or recipient's) cooperation;

  2. b. 

    Attempt phone contact with the beneficiary (or recipient) and all other authorized persons, e.g., representative payee, third party, and appointed representative. Document all attempts on an SSA-5002 Report of Contact;

  3. c. 

    Immediately request the FO assistance if phone attempts are unsuccessful in locating the beneficiary (or recipient). The DHO must allow ten days for the FO's response. Document all attempts on an SSA-5002 Report of Contact;

  4. d. 

    Consider special handling considerations and follow procedures as appropriate. See DI 33015.021.B.2 ; and

  5. e. 

    If the beneficiary (or recipient) does not appear at the scheduled hearing, wait ten days from the date of the scheduled hearing prior to completing a determination, unless the beneficiary or recipient waived the right to appear.

NOTE: Follow procedures for rescheduling the hearing if the beneficiary or recipient is located at any point of development. See DI 33010.005.

2. Completing the forms

a. Writing the DHO's determination

Make a determination based on the evidence in the file. Complete as described in DI 33015.020 with the following considerations:

  1. 1. 

    Focus independently on the relevant items on the “Disability Hearing Officer's Report of Disability Hearing.”

  2. 2. 

    Evaluate any new documentary evidence submitted.

  3. 3. 

    Make a determination based on all of the evidence in the file and address WU as applicable.

NOTE: Do not return the claim to the FO as a No Determination.

b. Completing the Forms SSA-832 Cessation or Continuance of Disability or Blindness Determination and Transmittal – Title XVI or SSA-833 Cessation or Continuance of Disability or Blindness Determination and Transmittal – Title II

Complete as described in DI 33020.005 and take the following actions:

  1. 1. 

    Enter the appropriate cessation code based on the evidence in the file. Generally, this will be the same code as the prior determination.

  2. 2. 

    Enter "Whereabouts unknown" in the remarks section.

c. Completing the notice

  1. 1. 

    Mail the notice to the beneficiary (or recipient) at their last known address.

  2. 2. 

    See DI 33015.025 for complete notice instructions.

DI 33015.035 Beneficiary's (or Recipient's) Right to Post-Hearing Evidence

Citations: 20 CFR 404.916(f), 20 CFR 416.1416(f) 20 CFR 404.911(b), 20 CFR 416.1411(b),

A. Right to post-hearing evidence

If the Social Security Administration (SSA) or the disability hearing unit (DHU) obtains evidence, for any reason, after the hearing, and all evidence supports an unfavorable determination, SSA or the DHU must proffer the evidence to the beneficiary (or recipient) and give the beneficiary (or recipient) an opportunity to comment on the evidence and request a supplemental hearing.

NOTE: To proffer means to provide an opportunity for the beneficiary (or recipient) and appointed representative, if any, to review the additional evidence.

This instruction applies to all post-hearing evidence obtained by SSA or the DHU, including medical or psychological consultant information.

B. Procedure for proffering post-hearing evidence

1. Notifying the beneficiary (or recipient)

  1. a. 

    Forward a copy of the post-hearing evidence to the beneficiary (or recipient) and appointed representative.

  2. b. 

    Show the source of the post-hearing evidence and the source's title, if applicable. Include:

    1. 1. 

      an explanation of what the evidence shows and how it could affect the determination,

    2. 2. 

      the right to submit comments or a rebuttal within 10 days of the receipt of this notice, and

    3. 3. 

      the right to request a supplemental hearing within 10 days of the receipt of this notice.

2. After the DHU notifies the beneficiary (or recipient)

  1. a. 

    Allow the beneficiary (or recipient) 10 days from receipt of the notice to submit comments, either in writing or by telephone.

  2. b. 

    Grant additional time if there is good cause, as set forth in 20 CFR 404.911 and 416.1411, for doing so. Examples of good cause may include but are not limited to:

    1. 1. 

      serious illness of the beneficiary (or recipient),

    2. 2. 

      death or serious illness of immediate family,

    3. 3. 

      important records destroyed or damaged by accidental cause,

    4. 4. 

      inability to find necessary information to support the claim within stated time period despite trying very hard to do so,

    5. 5. 

      notice was not received,

    6. 6. 

      beneficiary (or recipient) response was sent to another government agency in good faith within time limit, or

    7. 7. 

      unusual or unavoidable circumstances.

  3. c. 

    If the beneficiary (or recipient) believes it is necessary to have a supplemental hearing, one may be scheduled at his or her request.

  4. d. 

    Evaluate and consider comments and rebuttals in finalizing the hearing determination.

  5. e. 

    Issue the hearing determination if the beneficiary (or recipient) does not respond in the 10-day time frame.

3. Annotating post-hearing evidence in the folder

  1. a. 

    Annotate all evidence obtained after the hearing as "Post-Hearing Evidence".

  2. b. 

    Also annotate "Not Shared with Claimant" on post-hearing evidence that was not shared with the beneficiary (or recipient) because a fully favorable determination was issued. (This is necessary in case the review component proposes to overturn the DHO determination, i.e., the evidence will then have to be shared.)

NOTE: In electronic cases, make the annotations in the "Notes" section of eView.

DI 33015.045 Disqualification of Disability Hearing Officer (DHO) or Supervisory Hearing Officer (SHO)

A. Policy related to disqualification of a DHO or SHO

1. Reasons to disqualify a DHO or SHO

A DHO or SHO is precluded from conducting a hearing or issuing a hearing determination if:

  1. a. 

    The DHO or SHO had involvement in the determination under appeal, i.e. the initial continuing disability review (CDR) cessation or adverse reopening, or the pre-hearing (PH) affirmation of the initial CDR cessation, or

  2. b. 

    The DHO's or SHO's familiarity with a particular beneficiary (or recipient), beneficiary's (or recipient's) family, or beneficiary's (or recipient's) representative or witnesses is such that a reasonably objective observer would perceive a substantial likelihood that the DHO or SHO cannot make an impartial determination.

NOTE: A mere personal acquaintance with the beneficiary (or recipient), appointed representative, or witness is not, by itself, sufficient reason for disqualification. Nor is offensive or objectionable conduct of a beneficiary (or recipient) reason for disqualification. The DHO's or SHO's training and commitment to a high degree of professionalism should overcome these circumstances.

2. Disqualification of DHO

The SHO must make the decision whether to disqualify a DHO from a case.

3. Disqualification of SHO

Only the disability determination Services (DDS) administrator, the regional officer (RO), or the office of disability determination(ODD) may disqualify an SHO from a case.

B. Actions for potential disqualification

1. DHO actions

  1. a. 

    Immediately bring to the attention of the SHO any case from which you believe you should be disqualified.

  2. b. 

    If any travel cases present potential disqualification issues, consult the SHO about those issues well in advance of your scheduled travel so that appropriate action can be taken before you travel.

2. Beneficiary or recipient requests disqualification

  1. a. 

    Note and deny a beneficiary's (or recipient's) request for disqualification if it is made at the hearing and you see no valid reason for disqualification.

  2. b. 

    Immediately attempt to consult with the SHO, if necessary by telephone, to determine how to proceed if there is some reasonable basis for granting the request even if it is not clear that the request should be granted.

  3. c. 

    Recess the hearing, if necessary, until it is determined how to proceed.

3. Documentation

  1. a. 

    The SHO or DHO prepares a brief memorandum for the claims folder that summarizes any consultation between the DHO and the SHO on the question of whether the DHO should be disqualified.

  2. b. 

    The SHO notes in the claims folder any situation where the SHO disqualified the DHO from the case.

NOTE: These notations will inform any subsequent reviewer of the case and the beneficiary (or recipient) or appointed representative about the factors and reasons involved.

DI 33015.055 Adoption of Prior Decisions

A. Adoption policy

Although the adoption of prior decisions will be rare in the disability hearing unit (DHU) setting, disability hearing officers (DHOs) must be familiar with the procedures.

B. Procedure to adopt prior determination

Follow the guidance in DI 27515.000 to determine whether the prior final determination or decision is to be adopted.

Assess whether the prior determination should be reopened and revised if new and material evidence is presented or there are other reasons for reopening. See DI 27501.000 and DI 33020.025 for additional information on administrative finality and reopenings.

DI 33015.060 New Application Filed and Request for Reconsideration of Disability Cessation Pending

Citations: 20 CFR 404.914(d), 20 CFR 416.1414(d)

A. Policy on common issue

If a beneficiary (or recipient) has a request for reconsideration pending and files a new application for benefits, the disability hearing unit (DHU) may combine the issues on both claims for the purpose of the disability hearing. The disability hearing officer (DHO) will issue a combined initial and reconsidered determination with respect to common issues on both claims.

B. Preparing the determination

1. DHO's determination is favorable

  1. a. 

    Annotate “Since the claimant is still disabled, we will not process the application he or she filed on (insert date of application) ” in the 'Other Conclusion' section of the Disability Hearing Officer's Determination if the new claim is for the same type of benefits.

  2. b. 

    Prepare the necessary SSA-833 Cessation or Continuance of Disability or Blindness Determination and Transmittal- Title II.

  3. c. 

    Prepare the SSA-831 Disability Determination and Transmittal as a No Determination.

2. DHO's determination is unfavorable and development is not necessary for new claim

  1. a. 

    Prepare the necessary SSA-833 Cessation or Continuance of Disability or Blindness Determination and Transmittal – Title II and SSA-831 Disability Determination and Transmittal if the determination on the claim under appeal is unfavorable.

  2. b. 

    Advise the beneficiary (or recipient), in the DHO's determination, that the two determinations have been combined.

  3. c. 

    See DI 33015.025 for special notice instructions.

3. DHO's determination is unfavorable and development is necessary for new claim

Forward the claim to the disability determination services (DDS) for adjudication when the DHO's determination is unfavorable and development is needed for the new claim.

C. References

DI 29005.022 New Application and Request for Reconsideration

DI 27010.005 New Application with Reconsideration

 


DI 33015 TN 12 - Procedures for Disability Hearing and Related Policy Issues - 9/05/2019