Last Update: 9/1/2005 (Transmittal II-5-08)
HA 02510.006 Appeals Council
Action When an Administrative Law Judge (ALJ) Dismisses a Request
for Hearing for Failure to Appear Without Proper Notice to the
Claimant
Renumbered from HALLEX section II-5-1-6
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Appeals
Council Interpretation
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SUBJECT |
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Appeals Council Action When an
Administrative Law Judge (ALJ) Dismisses a Request for Hearing for
Failure to Appear Without Proper Notice to the Claimant |
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ISSUE |
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Should the Appeals Council assume
jurisdiction when an ALJ dismisses a request for hearing for failure
to appear if the claimant has not received proper notice of hearing? |
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DISCUSSION |
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Social Security Regulations at 20 CFR 404.957(b)(1) and
(2) and 416.1457(b)(1) and (2) provide two procedures for dismissing
a request for hearing when both the claimant and the representative
fail to appear at a scheduled hearing. Although 20 CFR 404.957(b)(1) and 416.1457(b)(1)
specifically refer to the notice of hearing, paragraph (b)(2) of
these regulations is silent regarding notification. Nevertheless,
all dismissals under these sections must be in accord with the regulatory
notice requirements. |
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The regulations at 20 CFR §§ 404.938 and 416.1438 provide that
a notice of hearing will be mailed to the claimant's last known
address at least 20 days before the hearing and must contain a statement
of the issues to be decided and a statement that the ALJ may dismiss
the request for hearing if both the claimant and the representative
fail to appear without good cause. If the claimant or the representative
fails to acknowledge receipt of the notice, the hearing office must
attempt to contact the claimant for an explanation. HALLEX HA 01240.025 B. and C. state that
the return of the acknowledgement card or the attempt to perfect notice,
documented in the record, is a prerequisite to dismissing the request
for hearing on the grounds of abandonment. Accordingly, an ALJ cannot
use a show cause order as an alternative to following the regulatory
notice requirements, unless there is information clearly establishing
that notice was received. |
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The Appeals Council has decided
that in a case in which an ALJ did not fully comply with the requirements
of 20 CFR §§ 404.938 and 416.1438,
it will not assume jurisdiction when the information submitted with
the request for review clearly shows that the claimant had notice
of the time and place set for the hearing. |
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INTERPRETATION |
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The Appeals Council will ordinarily
assume jurisdiction on error of law grounds and remand the case
if the ALJ dismissed a request for hearing on the grounds of abandonment
when the record shows that the hearing office did not comply with
the notice requirements. Conversely, the Appeals Council will not assume
jurisdiction when the information submitted with the request for
review clearly shows that the claimant had notice of the time and
place set for the hearing. |
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APPLICATION |
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The Appeals Council will apply
this interpretation in all cases that come before it involving the
same issue. |
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EFFECTIVE DATE |
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December 14, 1989, as supplemented
on July 21, 1992 |
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CROSS-REFERENCE |
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20 CFR §§ 404.938, 404.957,
416.1438, and 416.1457; HALLEX HA 01230.015, HA 01230.020, HA 01240.025, and HA 01330.015. |