Judicial review without a hearing.

NDP · Joined: 12 Feb 2008 Posts: 9

I was recently contacted by a claimant following his denial at the hearing level. The claimant never attended a hearing and was unrepresented. The ALJ decision states that he "knowingly and voluntarily" waived his right to appear and testify.

Because the claimant was unrepresented, the development in his case consisted of only a handful of documents from state agency physicians as well as a brief consultative examination.

I was recently able to obtain some records that indicate that the claimant is mentally retarded, leading to some question as to his ability to actually knowingly and voluntarily waive his right to a hearing. Other new evidence indicates that the claimant experiences intermittent paralysis from the chest down.

Due to my lack of faith in the Appeals Council, I fully expect them to deny review of this case. The only difficulty is finding a jurisdictional basis for federal court review. From my understanding of 405(g), an actual hearing is a prerequisite for judicial review. Has anybody else had success in obtaining federal court review of a case without a prior hearing?

-NDP

MikeWalters · Joined: 13 May 2004 Posts: 1195 Location: Cincinnati OH

I don't typically litigate so take this with a large grain of salt. But, I don't think the provision in 20 CFR 404.948 (b) allowing a party to waive an "oral" hearing has the same meaning as the jurisdictional provision in 42 USC 405(g) requiring a "hearing" as a prerequisite to judicial review. What your client received was a decision, not a dismissal, correct?

I have never seen anything that would indicate waiving a right to an oral hearing waives the right to judicial review. I think you are probably interpreting 405(g) too narrowly.

David Traver · Posted: Tue Oct 07, 2008 07:14 pm Post subject:

Did the ALJ dismiss the claim or did the ALJ issue a decision on the merits based upon the evidence of record? The applicable statute calls for the appealing claimant to be a "party" to a hearing. The claimant need not be a participant at the hearing to obtain jurisdiction under the statute. http://ssaconnect.com/content/view/113/173/ If the ALJ issued a "hearing" decision on the evidence of record then I would strongly suspect the final decision of the agency could be reviewed by a district court.

If the case were dismissed without a hearing such a dismissal would not usually be reviewed by a district court under 42 U.S.C. 405 (g). In that instance you could ask the ALJ to reconsider, which she should given the facts, or take it to the AC, which you did, under the facts you gave. I suspect you cannot do both at the same time and pick the result you like.

Also, you may wish to consider the language used in the following ruling as analogous to the situation you described. If you did not bring such arguments to the attention of the AC there may still be time to do so. http://www.ssa.gov/OP_Home/rulings/oasi/33/SSR95-01-oasi-33.html

See also http://www.ssa.gov/OP_Home/hallex/I-02/I-2-4-25.html

See also this search: http://tinyurl.com/3zgomz

"Read the source Luke!"

JOA · Joined: 13 May 2004 Posts: 1786

If memory serves, there have been Connect posts arguing that the AC is more willing to enforce HALLEX than are the courts. I offer no comment on this. But here's a link to what HALLEX says is the required documentation for a waiver of hearing by an unrepresented claimant (see F. 1-3):

http://www.ssa.gov/OP_Home/hallex/I-02/I-2-1-45.html

Insider (Ret) · Posted: Wed Oct 08, 2008 12:49 am Post subject:

JOA's subtle hint/point is well taken. Do not overlook/ignore the AC on this issue. It's one they're very much inclined to enforce.