You have waited months….or even years…for your Social Security Disability or SSI hearing in front of an Administrative Law Judge (ALJ). But something happens on the day of the hearing….your symptoms are so bad you cannot leave your house, your car breaks down, you miss the bus. What do you do? And what happens if you don’t get to the hearing?
First, if you have an attorney, call them immediately. Explain what is happening. If you do not have an attorney, call the ODAR – the Office of Disability Adjudication and Review and explain why you are not there BEFORE the time the hearing starts.
So what happens if you do not show up? On May 17, 2013, the Social Security Administration (SSA) revised its Hearings, Appeals and Litigation Law Manual (which SSA abbreviates HALLEX) to change its procedures if a claimant does not show at their hearing. The ALJ could dismiss your hearing. You and your Social Security Disability lawyer should know SSA’s procedures for these circumstances to avoid having your case dismissed. Here is a copy of all of Section I-2-4-25 of the HALLEX section I-2-4-25 which explains what SSA does in that situation:
I-2-4-25. Dismissal Due to Claimant’s Failure to Appear
Last Update: 5/17/13 (Transmittal I-2-93)
An administrative law judge (ALJ) may generally dismiss a request for hearing (RH) based on failure to appear in either of the following circumstances:
- An ALJ may dismiss an RH when neither the claimant who requested the hearing, nor the appointed representative, if any, appears at the time and place of a scheduled hearing and neither shows good cause for the absence. For authority, see 20 CFR 404.957(b)(2) and 416.1457(b)(2). Except in the circumstances set forth in this provision, an ALJ will develop whether there is good cause for the failure to appear.
- An ALJ also may dismiss an RH on the basis of failure to appear when an unrepresented claimant, or the claimant and his or her representative, fail to appear on time for the hearing. However, the ALJ must first develop whether there is good cause for the tardiness.
An ALJ’s attempts to develop good cause, and any responses received, must be associated in the B section of the claim(s) folder.
The term “good cause” refers to a reasonable explanation for failing to comply with a requirement. When determining whether good cause exists for failure to appear, the ALJ must base the decision on the circumstances of each individual case. In doing so, the ALJ must consider any physical, mental, educational, or linguistic limitations that may have prevented the claimant from appearing at the scheduled time and place of the hearing, akin to the requirements for consideration of good cause for late filing in 20 CFR 404.911, 416.1411, and Social Security Ruling 91-5p.
There are no set criteria for determining what constitutes good cause for failure to appear at the time and place of a scheduled hearing. However, good cause generally exists in any one of the following three circumstances.
Good cause for failure to appear at the scheduled time and place of hearing generally exists when the claimant did not receive proper notification of the scheduled hearing.
Therefore, before dismissing an RH for failure to appear, the ALJ must determine whether there is evidence in the record that shows the claimant was properly notified of the time and place set for the hearing, as described in HALLEX I-2-3-20 C. If the record does not show there was proper notification of the scheduled hearing, the ALJ must reschedule the hearing and provide proper notification of the rescheduled hearing. If the claimant has an appointed representative, notification to the representative is sufficient to establish notification to the claimant.
If the claimant or appointed representative received proper notification and neither appear at the time of the scheduled hearing, see HALLEX I-2-4-25 C.3.a below.
Regardless of a failure to appear, if the evidence of record supports a fully favorable decision, the ALJ will issue a fully favorable decision instead of dismissing the RH.
Good cause for failing to appear at the scheduled time and place of hearing generally exists when an unforeseeable event occurred that did not provide the claimant or the appointed representative enough time to notify the ALJ and request a postponement before the scheduled hearing.
Good cause for failure to appear at the scheduled time and place of hearing generally exists when the appointed representative:
- withdrew representation shortly before the scheduled hearing (approximately a week or less before the scheduled hearing), or appeared at the hearing and withdrew as representative, and
- there is no indication in the record that the claimant was aware the representative would not be appearing at the hearing on his or her behalf.
In this circumstance, the ALJ must develop for good cause. See HALLEX I-2-4-25 D. below.
To develop good cause, the HO will send a Form HA-L90, Request to Show Cause for Failure to Appear, to the claimant and the appointed representative, if any. The claimant and the appointed representative will be given 10 days from the date of the Request to Show Cause for Failure to Appear to respond. The HO will provide an additional 5 days for mailing time before proceeding.
It is important to check for any update to the claimant’s address before sending the notice. In addition to querying the Case Processing and Management System (CPMS), the HO staff must check the Personal Communications (PCOM) system queries, including the Full Master Beneficiary Record (FACT) for title II cases, the Supplemental Security Income Display (SSID) for title XVI cases, and the Modernized Development Worksheet (MDW) for either title.
If neither the claimant nor the appointed representative, if any, appears at the scheduled hearing, the ALJ may dismiss the RH without developing good cause in the following circumstances.
The ALJ need not develop good cause if the record shows the claimant received the Notice of Hearing and the claimant does not have a physical, mental, educational, or linguistic limitation that may affect the ability to understand the Notice of Hearing. If those criteria are met, the ALJ can generally presume the claimant fully understands the possible consequences of his or her failure to appear at the time and place of a scheduled hearing. The Notice of Hearing notifies a claimant that the RH may be dismissed without further notice if neither the claimant nor appointed representative, if any, appears at the scheduled hearing.
For instruction when the representative appears without the claimant, see HALLEX I-2-4-25 D. below.
It is unnecessary to develop good cause when the claimant did not return the acknowledgment card sent with the Notice of Hearing, the contact procedures required by 20 CFR 404.938 and 416.1438 were followed (as described in HALLEX I-2-3-20 C.), and there is no indication of “good cause” for failure to appear.
Any documentation generated to comply with the regulatory procedures must be associated in the B section of the claim(s) folder and must be exhibited if the ALJ issues a dismissal. Documentation may include copies of letters sent to the claimant, reports of contact documenting telephone calls, and re-mailed copies of the Notice of Hearing and acknowledgement card.
An ALJ may not use a Request to Show Cause for Failure to Appear after the fact as an alternative to following proper notice procedures prior to the hearing. A Request to Show Cause for Failure to Appear is unnecessary if the ALJ followed all the contact procedures prior to the hearing.
If the Notice of Hearing is returned to the HO as undeliverable, all attempts to contact the claimant by other means are unsuccessful, and it is concluded that the claimant’s whereabouts are unknown, the ALJ may dismiss the RH after:
- Verifying that the address used on the Notice of Hearing and any other contact correspondence is the most recent address on the PCOM system queries, including the FACT for title II cases, the SSID for title XVI cases, and the MDW for either title; and
- Ensuring that all attempts to contact the claimant are clearly documented in the B section of the claim(s) folder and the documentation is exhibited. For example, any envelopes returned by the post office as undeliverable must be associated with the claim(s) folder, as well as any statements made by individuals regarding the absence or disappearance of the claimant.
An ALJ may not dismiss the RH until after the time scheduled for the hearing because the claimant may learn of the scheduled hearing in another way and appear. If the claimant does not appear at the scheduled hearing, the ALJ may dismiss the RH, but must describe all efforts to contact the claimant in the dismissal order.
In some cases, an appointed representative will appear at the time and place of the scheduled hearing, but will withdraw as representative if the claimant does not appear. If the claimant did not appear at the hearing but notified the HO that he or she is aware the representative was going to withdraw, the ALJ may dismiss the RH. However, if the HO did not receive notification from the claimant indicating he or she was aware the representative was going to withdraw at hearing, the ALJ must develop good cause for failure to appear.
If the claimant alleges he or she did not appear at the hearing because the claimant believed the representative was appearing on his or her behalf, or the claimant otherwise indicates he or she wants to proceed with the hearing, the ALJ will generally find good cause for failure to appear and the ALJ will reschedule the hearing. However, if the claimant does not respond to the Request to Show Cause for Failure to Appear, the ALJ will issue a decision on the record if a fully favorable decision is warranted. Otherwise, the ALJ may dismiss the RH.
In egregious situations, a representative’s failure to notify the claimant of the withdrawal before the hearing may constitute misconduct or may establish a pattern of possible misconduct under 20 CFR 404.1740 and 416.1540. For more information on making referrals for alleged representative misconduct, see HALLEX I-1-1-50.
If an appointed representative appears at the scheduled hearing without the claimant and continues to represent the claimant during the hearing, dismissal is never appropriate. However, the ALJ may determine that the claimant has constructively waived the right to appear at the hearing if:
- the representative is unable to locate the claimant,
- the Notice of Hearing was mailed to the claimant’s last known address, and
- the contact procedures required by 20 CFR 404.938 and 416.1438, as described in HALLEX I-2-3-20 C., have been followed.
If the claimant has constructively waived the right to appear at the hearing, the ALJ will not proceed with the hearing and will notify the representative he or she will issue a decision on the record.
In all other circumstances, the ALJ may choose to proceed with the hearing, accepting the testimony of the witnesses and allowing the appointed representative to question the witnesses and make arguments on the claimant’s behalf. The ALJ will advise the appointed representative that a Request to Show Cause for Failure to Appear will be sent to the claimant to ask why he or she did not appear at the scheduled hearing and whether a supplemental hearing should be held. After the 10 day comment period expires (with an additional five days for mailing time), the ALJ will either:
- Determine that the claimant has constructively waived his or her right to appear for a hearing (if the claimant fails to respond to the notice or fails to show good cause for failure to appear at the scheduled hearing), and issue a decision on the record, or
- Offer the claimant a supplemental hearing to provide testimony if the claimant establishes good cause for failure to appear.
Subject to 20 CFR 404.936, 405.317, or 416.1436, if a claimant or his or her appointed representative, if any, requests that the ALJ change the time or place set for the hearing, the ALJ will consider whether the claimant or representative has good cause for requesting the change. If the ALJ finds there is no good cause for changing the time and place of the scheduled hearing, the ALJ will notify the claimant or appointed representative, if any, of his or her finding. If, after proper notification of the scheduled hearing, neither the claimant nor the representative appears at the time and place set for the hearing, the ALJ must determine whether the claimant or representative received the notice of hearing. If the ALJ finds that the claimant or representative did receive the notice, the ALJ may dismiss the RH for failure to appear without sending a notice to develop good cause.
The ALJ may not dismiss an RH for failure to appear if the claimant waived the right to an oral hearing and the ALJ nevertheless scheduled a hearing. In this situation, the ALJ must decide the case based on the evidence of record.
HALLEX text quoted from SSA website: https://www.socialsecurity.gov/OP_Home/hallex/I-02/I-2-4-25.html.