I-2-4-25.Dismissal Due to Claimant's Failure to Appear

Last Update: 11/25/24 (Transmittal I-2-262)

A. Failure to Appear — Introduction

An administrative law judge (ALJ) may generally dismiss a request for hearing (RH) based on failure to appear in the circumstances listed below. However, the ALJ may not dismiss an RH when a parent or guardian appears at the hearing on behalf of a minor claimant.

1. Neither Claimant nor Representative Appears

An ALJ may dismiss an RH when:

Neither the claimant nor the appointed representative, if any, appears at the scheduled hearing;
The agency notified the claimant before the hearing that it could dismiss the request without further notice based on a failure to appear without good cause; and
Neither the claimant nor the representative shows good cause for the absence.

For authority, see 20 CFR 404.957(b) and 416.1457(b). Except in the circumstances set forth in below in I-2-4-25 C.3, an ALJ will develop whether there is good cause for the failure to appear.

NOTE:

If a claimant fails to appear at an audio hearing, Office of Hearings Operations (OHO) staff will document the telephone number(s) called, the date and time of the call(s), and the results of the call(s) on the form SSA-5002, “Report of Contact,” (ROC) found in Hearings, Appeals, and Litigation Law (HALLEX) manual I-2-4-91, and associate the completed form with the B section of the claim(s) file.

2. Neither Claimant nor Representative Appears on Time

An ALJ may also dismiss an RH based on failure to appear when an unrepresented claimant, or the claimant and their representative, fails to appear on time for the hearing. However, the ALJ must first develop whether there is good cause for the tardiness.

NOTE:

If a claimant appears at the hearing site after the time set for an in-person or agency video hearing, or contacts the hearing office after the time set for an audio or online video hearing, OHO staff will document the appearance or contact on the form SSA-5002, ROC, found in HALLEX manual I-2-4-91, and associate the completed form with the B section of the claim(s) file. Whenever possible staff must, for in-person and agency video appearances notify the ALJ while the claimant is still at the hearing site, or for audio or online video hearings, notify the ALJ when the claimant contacts the hearing office during the allotted time set for the hearing. In these situations, the ALJ has discretion to make a finding of good cause and proceed with the hearing, or to develop good cause using the procedures in this section. If the ALJ does not find good cause, the ALJ must exhibit the completed ROC and make specific reference to its contents in the dismissal order.

3. Third Party Appears on Behalf of Minor or Adult Claimant

Occasionally, an adult claimant may fail to appear at the hearing, but a parent or other third party who has not been appointed as a representative will appear at the hearing on the claimant's behalf. If an appointed representative is present, the ALJ will proceed as noted in subsection D below. If the parent or third party indicates the claimant is late, the ALJ will proceed as noted in subsection A.2. above.

The ALJ will not proceed with the hearing if the claimant fails to appear and only a parent or third party, who is not an appointed representative, is present when:

The claimant is age 18 or older, and
The claim is an initial application for adult disability benefits or a redetermination of a claimant's eligibility for supplemental security income under 20 CFR 416.987.

If an adult claimant has been declared legally incompetent (see 20 CFR 401.75), the claimant's legal guardian may appear at the hearing for the claimant. See HALLEX I-2-3-10 for determining the claimant's manner of appearance if the claimant is institutionalized or incarcerated.

If the hearing cannot proceed, the next appropriate action depends on whether the claimant returned the acknowledgment of hearing form or otherwise indicated actual knowledge of the date and time of the hearing. See HALLEX I-2-3-20. If the claimant responded and indicated they would appear at the hearing, the ALJ may dismiss the request for hearing if the ALJ finds that the claimant does not have good cause for failing to appear. If the claimant was not the person who responded to the acknowledgment of hearing form, or the acknowledgment form was not returned, see the procedures noted in subsection C below.

NOTE:

If the claimant is a minor, the ALJ will proceed with the hearing and may not dismiss the RH if a parent or guardian appears at the hearing on the claimant's behalf. See 20 CFR 401.75.

B. Definition of Good Cause for Failure to Appear

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, an ALJ must base their decision on the circumstances of each 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, if applicable, place of the hearing, akin to the requirements for consideration of good cause for late filing in 20 CFR 404.911 and 416.1411 and Social Security Ruling 91-5p. OHO staff must document in the B section of the claim(s) folder an ALJ's attempts to develop good cause and any responses received.

C. Considering Good Cause for Failure to Appear

1. Circumstances That Generally Establish Good Cause

There are no set criteria for determining what constitutes good cause for failure to appear at a scheduled hearing. However, good cause generally exists in the following circumstances.

a. No Proper Notification of the Scheduled Hearing

Good cause for failure to appear at the scheduled hearing generally exists when the claimant did not receive proper notification of the scheduled hearing.

Before dismissing an RH for failure to appear, an ALJ must determine whether there is evidence in the record that shows the agency properly notified the claimant of the manner of appearance, the time set for hearing, and, if applicable, place set for the hearing, as described in HALLEX I-2-3-15 and I-2-3-20. The ALJ will consider the following:

If the claimant has an appointed representative, proper notification to the representative is sufficient to establish notification to the claimant.
If the agency followed up with the claimant or representative by telephone, the ALJ must ensure proper documentation is in the file and that the agency attempted to contact the claimant in a manner consistent with HALLEX I-2-3-20.
If the claimant alleges they reported a new address to another agency component such as a field office or teleservice center, but the agency sent the Notice of Hearing to an outdated address, the ALJ will review the address queries ROC located in the B section to confirm OHO staff ran and reviewed the queries noted in HALLEX I-2-3-15 B, and the ALJ will carefully consider the allegation.

If the record does not show the claimant received proper notification of the scheduled hearing, the appropriate remedy is for the agency to reschedule the hearing and provide proper notification of the rescheduled hearing. The ALJ and OHO staff will follow the instructions in HALLEX I-2-3-15 to provide the notice of hearing.

If the claimant or appointed representative received proper notification and neither appears at the time of the scheduled hearing, see subsection C.3.a. below.

NOTE:

If a preponderance of the evidence supports an on-the-record fully favorable decision on every issue, the ALJ will consider whether it is appropriate to issue a fully favorable decision under 20 CFR 404.948 and 416.1448, instead of dismissing the RH for failure to appear.

b. Unforeseeable Event

Good cause for failing to appear at the scheduled hearing generally exists when an unforeseeable event occurred that prevented the claimant or the appointed representative from notifying the ALJ and requesting a postponement before the scheduled hearing. This situation is distinguished from situations where the claimant and/or representative requests a change in the manner of appearance or the time or place for the hearing prior to the hearing.

A claimant may request to change the manner of appearance, time and/or place of a hearing before the scheduled hearing begins and the ALJ will determine whether there is good cause to allow the change. See 20 CFR 404.936(e)-(f), 416.1436(e)-(f), and HALLEX I-2-3-20 and I-2-3-12 for details. If a claimant untimely objects to an appearance by audio or agency video, the ALJ will evaluate whether the claimant has good cause for the late objection. See 20 CFR 404.936(d) and 416.1436(d) and HALLEX I-2-0-21 D. A claimant may withdraw their agreement to appear by online video at any time before the start of the hearing. See 20 CFR 404.936(e) and 416.1436(e) and HALLEX I-2-0-22.

c. Withdrawal of Representation Without Sufficient Notice

Good cause for failure to appear at the scheduled hearing generally exists when the claimant did not appear and 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 knew the representative withdrew or would not appear at the hearing on their behalf.

In this circumstance, the ALJ must develop for good cause. See subsection C.2. below.

NOTE 1:

When both the agency and the representative are unable to locate the claimant, and the representative withdraws prior to the commencement of the hearing, the ALJ may dismiss the RH based on failure to appear. For guidance as to when a claimant's whereabouts are unknown, see subsection C.3.c. below.

NOTE 2:

An ALJ may also find that circumstances support a finding of good cause when the representative withdrew more than a week before the hearing and the claimant was unaware of the withdrawal.

d. No Agreement to an Appearance by Online Video

Good cause for failure to appear at a scheduled online video hearing generally exists when the claim file does not contain the claimant's written agreement to appear by online video.

NOTE:

An appointed representative may submit an agreement to appear by online video on behalf of the claimant. See HALLEX I-2-0-22 A. The ALJ will develop good cause if the claimant was scheduled to appear by online video, an appointed representative submitted an agreement to appear by online video on behalf of the claimant, and:

The representative withdrew and the claimant failed to appear at the scheduled hearing; or
Neither the claimant nor the representative appeared at the scheduled hearing.

2. Procedures to Develop Good Cause

To develop good cause, the OHO staff will:

Send a Form HA-L90, “Request To Show Cause For Failure To Appear,” to the claimant and the appointed representative, if any; and
Give the claimant and appointed representative 15 days (10 days to respond plus the five-day presumption for receipt) from the date Form HA-L90 is sent to respond. Provide an additional three business days for response time when sending Form HA-L90 via central print. Refer to HALLEX I-2-0-80 for more details.

OHO staff will check for any update to the claimant's address before sending the HA-L90. In addition to querying the Hearings and Appeals Case Processing System (HACPS), OHO staff must check for the claimant's updated address using 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,
the Modernized Development Worksheet (MDW) for either title,
the Customer Service Record (CSR) for either title, and
the Prisoner Update Processing System (PUPS) for either title.

OHO staff will create and associate with the B section a ROC documenting that they ran and reviewed the above-listed queries. In the ROC, the staff member will specify the queries reviewed, provide the date they ran and reviewed the queries, and state whether the queries or any other evidence or correspondence yielded evidence of a new address or other contact information. The staff member will record any updated contact information in the ROC. OHO staff will not copy or otherwise include the queries in the ROC or elsewhere in the record.

NOTE:

In some cases, an updated address may also be found on medical evidence or in the Online Retrieval System (ORS). See Standard Hearings Operation Procedure (SHOP) section 3.2.9. Additionally, when applicable, OHO staff will use the instructions in HALLEX I-2-5-69 C for verifying inmate information on the internet.

3. When Developing Good Cause Is Not Necessary

If neither the claimant nor the appointed representative, if any, appears at the scheduled hearing, and none of the circumstances described in subsection C.1. above apply, the ALJ may dismiss the RH without developing good cause in the following circumstances.

NOTE:

Even when the ALJ is not required to develop whether the claimant had good cause for not appearing, see 20 CFR 404.957(b)(1)(i) and 416.1457(b)(1)(i), the ALJ must still consider and discuss whether available information and the evidence of record establishes good cause.

a. Claimant Received a Proper Notice of Hearing

The ALJ need not develop good cause if the record shows that the claimant received a proper Notice of Hearing and the claimant does not have a physical, mental, educational, or linguistic limitation that might affect their 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 their failure to appear at the scheduled hearing. The Notice of Hearing notifies a claimant that the ALJ may dismiss an RH without further notice if neither the claimant nor the appointed representative, if any, appears at the scheduled hearing without good cause. An HA-L90 is not required if the agency followed all the applicable notice requirements and contact procedures prior to the hearing.

NOTE:

For instructions for when the representative appears without the claimant, see subsection D below.

b. Claimant Did Not Return Acknowledgment Form

It is unnecessary to develop good cause when:

the claimant did not return the acknowledgment form sent with the Notice of Hearing,
the agency followed the contact procedures required by 20 CFR 404.938 and 416.1438 (as described in HALLEX I-2-3-20), and
there is no indication in the record of good cause for the failure to appear.

Any documentation generated to comply with the applicable regulatory procedures must be associated in the B section of the claim(s) file. Documentation may include copies of letters sent to the claimant, ROCs documenting telephone calls, and re-mailed copies of the Notice of Hearing and acknowledgment form.

An ALJ may not send an HA-L90 after the fact as an alternative to following proper notice and contact procedures prior to the hearing.

c. Claimant's Whereabouts Are Unknown

If the postal service returns the Notice of Hearing to the hearing office as undeliverable, all attempts to contact the claimant by other means are unsuccessful, and the ALJ concludes 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 in HACPS and on the PCOM system queries, including the FACT for title II cases, the SSID for title XVI cases, the MDW for either title, the CSR for either title, and the PUPS for either title; and
Ensuring that the ALJ or OHO staff has clearly documented and exhibited in the B section of the claim(s) folder all attempts to contact the claimant. For example, OHO staff must associate any envelopes the post office returned as undeliverable with the claim(s) folder, as well as any statements made by other 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.

D. Appointed Representative Appears at Hearing Without the Claimant

1. Representative Withdraws from Representing the Claimant at the Hearing

In some cases, an appointed representative will appear at 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 OHO that they knew the representative was going to withdraw, and there is no indication of good cause for the claimant's failure to appear, the ALJ may dismiss the RH. However, if OHO did not receive notification from the claimant indicating they knew the representative was going to withdraw at the hearing, the ALJ must develop good cause for failure to appear.

If the claimant alleges that they did not appear at the hearing because they believed the representative would appear on their behalf, or the claimant otherwise indicates they want to proceed with the hearing, the ALJ will generally find good cause for the failure to appear, and the ALJ will reschedule the hearing. However, if the claimant does not respond to the HA-L90, the ALJ may dismiss the RH.

NOTE 1:

If a preponderance of the evidence supports an on-the-record fully favorable decision on every issue, the ALJ will consider whether it is more appropriate to issue a decision under 20 CFR 404.948 and 416.1448 rather than dismiss the RH.

NOTE 2:

If a representative repeatedly withdraws their representation at scheduled hearings without notifying the claimants beforehand, such behavior may signal 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.

2. Representative Continues to Represent the Claimant During the Hearing

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 agency has followed the contact procedures required by 20 CFR 404.938(c) and 416.1438(c), as described in HALLEX I-2-3-20.

a. Constructive Waiver of Right to Appear

If the ALJ finds that the claimant has constructively waived the right to appear at the hearing, the ALJ need not proceed with the hearing and may choose to issue a decision on the record. However, if medical expert or vocational expert testimony is needed to resolve the case, the ALJ may choose to proceed with the hearing, accepting the testimony of the witness(es) and allowing the appointed representative to question the witness(es) and make arguments on the claimant's behalf.

In any event, the ALJ will advise the appointed representative, either on the record during the hearing or in writing thereafter, that they will not send an HA-L90 to the claimant because the claimant has constructively waived the right to appear at a hearing. When advised in writing, the ALJ must associate the writing with the record.

b. No Constructive Waiver

If the ALJ finds that the claimant has not constructively waived the right to appear at the hearing, the ALJ may choose to proceed with the hearing, accepting the testimony of the witness(es) and allowing the appointed representative to question the witness(es) and make arguments on the claimant's behalf. The ALJ will advise the appointed representative that the agency will send a Form HA L-90 to the claimant to ask why they did not appear at the scheduled hearing and whether a supplemental hearing should be held. OHO staff will then send a Form HA-L90 to the claimant. After the 15-day period (10 days to respond plus the five-day presumption of receipt), expires (or 15 days plus an additional three business days of mailing time if Form HA L-90 was sent via central print, see HALLEX I-2-0-80), the ALJ will either:

Determine that the claimant has constructively waived the right to appear for a hearing (if the claimant fails to respond to the HA-L90 or otherwise fails to show good cause for failure to appear at the scheduled hearing), and issue a decision based on the evidence of record; or
Offer the claimant a supplemental hearing to provide testimony if the claimant establishes good cause for failure to appear at the scheduled hearing.

E. Claimant Requests Change in the Time or Place of the Hearing

Subject to 20 CFR 404.936 or 416.1436, if a claimant or their appointed representative 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 as provided in HALLEX I-2-3-12 C.

If the ALJ finds there is not good cause for changing the time or place of the scheduled hearing, the ALJ will notify the claimant and appointed representative, if any, of their finding.
If the ALJ finds there is good cause for changing the time or place of the scheduled hearing, the hearing office will notify the claimant and representative, if any, of the time and, if applicable, place of the rescheduled hearing.

If, after proper notification of the scheduled hearing (see HALLEX I-2-3-15 and I-2-3-20 and subsection C above), neither the claimant nor the representative appears at the scheduled hearing, the ALJ must determine whether the claimant or representative received the Notice of Hearing. If the ALJ finds that the claimant or representative received the notice, the ALJ may dismiss the RH for failure to appear under the circumstances noted in subsection C.3. above.

F. Claimant Requests Change in the Manner of Appearance

A claimant does not have a right to object to appearing in person. See HALLEX I-2-3-12 A.

A claimant may object to appearing at a hearing by audio, agency video, or both, by notifying us in writing within 30 days after the claimant receives a Notice of Ways to Attend a Hearing. If a claimant objects to an appearance by audio, agency video, or both after the 30-day period, the ALJ will evaluate whether the claimant has good cause for the late objection. See 20 CFR 404.936(d) and 416.1436(d) and HALLEX I-2-0-21 D and I-2-3-12 A.

If the ALJ finds there is not good cause for the untimely objection, the hearing office will notify the claimant and appointed representative, if any, of the ALJ's finding. See HALLEX I-2-0-21 D.
If the ALJ finds there is good cause for the untimely objection, OHO, through designated staff, will schedule the claimant for another available manner of appearance and will notify the claimant and representative, if any, of the new manner of appearance. See HALLEX I-2-3-15 for the requirements of an amended notice of hearing.

A claimant may agree to appear at a hearing by online video in writing within 30 days after receiving the Notice of Ways to Attend a Hearing. If a claimant submits an agreement after the 30-day timeframe, the ALJ will evaluate whether the claimant has good cause for the late agreement. See 20 CFR 404.936(e) and 416.1436(e) and HALLEX I-2-0-22.

A claimant may withdraw their agreement to appear by online video at any time before the start of the hearing. See 20 CFR 404.936(e) and 416.1436(e) and HALLEX I-2-0-22. The start of the hearing is when the ALJ goes on the record. See HALLEX I-2-0-22 E, Note 2. If the claimant withdraws their agreement to appear by online video before the start of the hearing, OHO, through designated staff, will schedule the claimant for another available manner of appearance and will notify the claimant and representative, if any, of the new manner of appearance. See HALLEX I-2-3-15 for the requirements of an amended notice of hearing.

G. Claimant Waived Right to Oral Hearing — ALJ Nevertheless Scheduled Hearing

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 issue a decision.