I-2-1-45. Parties to the Hearing

A. General

Any individual(s) may be a party to a hearing if he/she was a party to the initial, reconsidered, or revised determination or is an other person, who makes a showing in writing that his or her rights may be adversely affected by the hearing decision.

B. Informing Individuals Who May Be Parties to the Hearing

When the HO staff has identified the potential parties, the Administrative Law Judge (ALJ) must inform each individual of his or her rights, unless the individual has waived his or her right to be made a party to the hearing.

C. Multiple Parties

When there are multiple parties, the ALJ will bring all parties together at one joint hearing, if possible. The parties will testify in the presence of each other unless one or more of the parties requests to testify separately and the other parties consent to the separate testimony. (See I-2-1-65 B., Types of Hearings; and I-2-6-60 D., The Hearing When There Are Multiple Parties.)

D. Special Situations

1. A wage earner's survivor (defined as the wage earner's widow or widower, surviving divorced spouse, mother or father, or surviving child) has the same rights as a wage earner (WE) to appeal a change in (or a refusal to change) the WE's earnings record. The survivor in such a case does not need to establish that he or she would be adversely affected by the ALJ's decision to be made a party to the hearing. A timely filed request in writing to be made a party to the hearing is sufficient.

2. When an RH involves a determination regarding the crediting of self-employment income between a husband and wife, the ALJ will make both of them parties to the hearing because the ALJ's decision regarding the income of one of the parties may adversely affect the rights of the other.

3. Workers' compensation representatives may not become parties to a SSA hearing before an ALJ. ALJs should deny requests to intervene filed by workers' compensation representatives. (See OCALJ Reminder, October 25, 1999.)

E. Geographic Considerations

The ALJ will not deny any proper party the right to a hearing or the right to present evidence because of geographic considerations.

1. If a party to the hearing lives outside the geographic area served by the HO, the ALJ will encourage that party to attend the hearing.

2. If a party is unable to attend a hearing in the geographic area served by the HO, the ALJ or the ALJ's designee should make arrangements to afford the party the opportunity to attend a supplemental hearing at a convenient location (See I-2-3-10, Scheduling Hearings) or attend through videoconferencing (See I-5-1-16, Video Conferencing Procedures).

3. If a party requests to present sworn testimony instead of attending a hearing, see I-2-6-20, Affidavits and Depositions.

4. The ALJ who schedules the hearing for the party who first filed the RH will have jurisdiction over the case. This ALJ will issue one decision which incorporates the proceedings of the primary hearing and any other hearing.

   When the ALJ issues a decision, he or she will send copies to all parties with notice of the right to request review by the Appeals Council. (See I-2-8 ff, Administrative Law Judge Decisions.)

F. Waiver of the Right to Appear at the Hearing

A claimant may waive the right to appear at an oral hearing and request the ALJ to decide the case on the basis of the evidence of record. The regulations also provide, however, that the ALJ may schedule a hearing notwithstanding the waiver if he or she believes a personal appearance and testimony are necessary to properly decide the case (20 CFR §§ 404.950(b) and 416.1450(b); see I-2-6-1, Hearings – General.)

The development of evidence and conduct of a case is the ALJ's responsibility and should be exercised to satisfy valid regulatory requirements, not the convenience of the representative.

If an ALJ schedules a hearing despite a waiver, and the claimant or the representative do not appear, the ALJ must set forth in the decision the reason for requesting the claimant's appearance and the efforts undertaken to put the claimant on notice of the need for the hearing. The ALJ must also include in the rationale any adverse presumptions regarding credibility, weight of the evidence, etc., which arose from the claimant's refusal to appear.

If it becomes apparent that the provisions, which permit waiver of oral hearing are being abused (e.g., if a representative routinely advises his or her clients to waive appearance, or to ignore a scheduled hearing despite the waiver), it would be appropriate to issue a notice that failure to appear at the scheduled hearing could jeopardize successful resolution of the claim. The important consideration is that the claimant be fully advised of the possible consequences of his or her actions.

Under some circumstances, an ALJ may issue a more detailed notice of hearing to specify the facts and issues which require development at an oral hearing, or employ other procedures, such as a prehearing conference, to narrow and clarify issues. (See I-2-1-75 - Prehearing Conference.)

If a claimant states in the request for hearing (RH) that he or she waives the right to appear at a hearing, or otherwise notifies the hearing office (HO) that he or she intends to waive the right to appear, the ALJ or the HO staff must take the following actions:

1. If the claimant is unrepresented, advise the claimant of the right to representation.

2. Advise the claimant of the advantages of appearing at a hearing; ensure that the claimant is fully advised of the possible consequences of his or her waiver; and explain that even though he or she has waived the right to appear, the ALJ may schedule and conduct a hearing if the ALJ deems it necessary.

3. If the claimant still elects to waive the right to appear at a hearing, obtain written documentation of the claimant's election on a Form HA-4608, Waiver of Right to Oral Hearing. To access Form HA-4608, access the Document Generation System (DGS), click on “Correspondence,” then click on “Prehearing” and then click on “Waiver of Oral Hearing.”