SUBJECT:

Appeals Council action when the claimant does not appear at hearing, a person appears at a hearing and submits an appointment of representation for the first time (signed by the claimant), and the administrative law judge (ALJ) dismisses the case for failure of the claimant to appear at the hearing.

ISSUE:

Whether the Appeals Council will grant review when an ALJ dismisses a request for hearing because the claimant did not appear at the hearing, the person appearing at the hearing as the representative submits an appointment of representation for the first time at the hearing (signed by the claimant), and the ALJ finds the appointment invalid because there is no indication, based on actual circumstances, that the claimant was aware of or consented to the appointment.

DISCUSSION:

Pursuant to 20 CFR 404.1707 and 416.1507, the Social Security Administration (SSA) recognizes a person as a representative if the claimant (and, if a non-attorney, the person being appointed as representative) signs a notice of appointment and submits the written notice at one of SSA's offices. See also Hearings, Appeals and Litigation Law (HALLEX) manual HA 01110.010 and Program Operations Manual System (POMS) GN 03910.040. Additionally, pursuant to SSA's regulations and sub-regulatory policy, a claimant can only appoint an individual as a representative. While a claimant may appoint multiple individuals as representatives, the claimant may not appoint an entity, such as a law firm, as his or her representative. (For more information, see HALLEX HA 01110.010 NOTE 2, which explains that if a claimant attempts to appoint an entity, the agency will accept only the appointment of the individual who signed the notice of appointment.)

In HALLEX HA 01240.025, SSA explains that when an appointed representative appears at a hearing to represent the claimant, even when a claimant is not present, dismissal is never appropriate. However, application of this principle is dependent on a clear demonstration that both the claimant and representative agreed to the appointment of the individual appearing at the hearing as a “representative.” Therefore, HALLEX HA 01240.025 does not apply in the scenario described because the ALJ must first address the threshold inquiry of whether the claimant has appointed the individual to serve as his or her representative.

While SSA has clear policy regarding appointments submitted prior to a hearing, (see HALLEX HA 01110.010 and POMS GN 03910.040), SSA regulations and sub-regulatory instructions are silent on whether an ALJ can dismiss a request for hearing when the appointment is submitted at the hearing, the claimant does not appear at the hearing, and information in the record indicates the claimant is not aware of the appointment.

INTERPRETATION:

Because of privacy concerns and the sensitive nature of the information contained in a claim(s) file, including medical records and other information about the claimant, SSA must have a reasonable assurance that the claimant is aware of and consented to an appointment of representation. Therefore, the Appeals Council finds that there are circumstances when it is appropriate for an ALJ to dismiss the request for hearing when the claimant does not appear at the hearing but an individual purporting to be an appointed representative does appear at the hearing.

Assuming the ALJ followed all necessary notification procedures (see HALLEX HA 01240.025 C and HA 01230.020) and no other basis for granting review is present, the Appeals Council will not grant review of an ALJ's dismissal when: (1) the claimant did not appear at the hearing; (2) a person not previously appointed as a representative submits an appointment of representation at the hearing (purportedly signed by the claimant); and (3) the ALJ did not abuse his or her discretion because, despite a signed appointment of representation, the ALJ articulated a good reason, supported by the record, for finding that the claimant was not aware of or did not specifically consent to the appointment of the person who appeared at the time and place of the hearing.

The Appeals Council will grant review if it finds the ALJ abused his or her discretion in dismissing a request for hearing because the ALJ did not articulate a good reason, based on the record, for finding that the claimant was not aware of or did not specifically consent to the appointment of the person who appeared at the time and place of the hearing. For example, the Appeals Council will grant review if an ALJ relies solely on his or her personal knowledge of a representative's business practices to dismiss a request for hearing rather than relying on the facts and circumstances of the individual case.

If, after the time and place of the hearing, the claimant submits new information to the ALJ or the Appeals Council showing that he or she was aware of the representation and consented to it (and the issue is before the Appeals Council), the Appeals Council will grant review.

APPLICATION:

The Appeals Council will apply this interpretation when the facts as stated above are present in a case before the Appeals Council.

EFFECTIVE DATE:

July 29, 2015

CROSS-REFERENCES:

20 CFR 404.1707 and 416.1507; HALLEX HA 01110.010, HA 01230.020, and HA 01240.025; and POMS GN 03910.040.