Should I Request Appeals Council Review if the Administrative Law Judge (ALJ) Dismissed My Request for Review?
Under 20 C.F.R. Section 404.957 an administrative law judge can dismiss your request for a Social Security disability hearing if:
A. You or your disability lawyer asks the ALJ to withdraw your request for hearing. This is often done if the you have returned to work and are making more than the substantial gainful activity amount for that given year, or if you have received limited medical treatment since filing your SSD application. For example your attorney may recommend withdrawing your request for hearing if you have not had much medical treatment but obtaining medical coverage just before hearing. In that situation it may make sense to file a new application that will have supportive medical evidence.
B. Neither you nor your attorney shows up at the time and place set for the hearing even though you received proper notice of the hearing. Usually the administrative law judge will issue a show cause order asking why you missed the hearing before dismissing your request for hearing. You must respond to the show cause order. If the ALJ finds that you had good cause for missing the hearing, then he or she will reschedule it.
C. The ALJ decides that the doctrine of res judicata applies to your case. Res judicata exists if there has been a previous determination or decision based on the same facts and the same issues and the previous determination has become final by either administrative or judicial action.
D. You have no right to request a hearing or to obtain benefits under the Social Security Act.
E. You failed to file a hearing request timely.
F. You passed away and do not have a substitute party who is adversely affected by the previous Social Security disability denial.
The most common situation where you may want to request Appeals Council review of your disability claim is when you failed to appear at the hearing.
Did You Fail to Appear at Hearing?
If you failed to appear at hearing but your attorney did show up, then the ALJ should not dismiss your request for hearing. This rule is set forth in HALLEX I-2-4-25.
If neither you nor your attorney attend the hearing, then the Social Security Administration (SSA) can dismiss your request for hearing if the notice of hearing says the ALJ can. Otherwise the ALJ must issue a notice to show cause, which allows you to respond and explain why you missed your hearing.
The notice of hearing includes a form asking you and your attorney to acknowledge that you have received the notice. Under 20 C.F.R. Section 404.938 the SSA will contact you for an explanation if it does not receive your acknowledgement receipt. If you tell the SSA that you did not receive the notice then the SSA must send you an amended notice. The SSA may change the time and place of your scheduled hearing if you do not respond to the notice of hearing.
If the SSA did not attempt to contact you or your attorney when you failed to return the acknowledgement of receipt of the notice of hearing then the ALJ may not dismiss the request for hearing unless the he or she has sent a show cause order.
Can I Receive a Favorable Decision Even if I Fail to Appear at the Disability Hearing?
Under HALLEX I-2-4-25 B Note the ALJ is supposed to issue a fully favorable decision, rather than dismiss your request for hearing, if the evidence supports such a decision. In my experience this happens rarely however. This can serve as the basis for requesting Appeals Council review of the ALJ’s dismissal of your request for hearing.
Likewise, you may have grounds for requesting review of the ALJ’s dismissal of your request for hearing if you asked the ALJ to issue an on-the-record decision without a hearing.
Should I Request Appeals Council Review if the ALJ Dismissed My Request for Hearing?
In my opinion you should not request Appeals Council review of the ALJ’s dismissal of your request for hearing if you failed to appear at the hearing, unless you have evidence that you did not receive the notice of hearing or you were hospitalized or institutionalized at the time of hearing. In that case you or your attorney should submit medical documents showing that you received treatment on that date.
If you request review of the ALJ’s dismissal based on your failure to appear then the Appeals Council must evaluate the good cause issue if the ALJ failed to do so. This means that the Appeals Council will send you or your attorney a request for a written explanation as to why you did not appear at the hearing. If good cause is found then the Appeals Council will remand for a new hearing date.
Have a question about your SSDI or SSI claim? Then contact Corey Pollard today for a free consultation.