Last Update: 9/2/05 (Transmittal I-2-64)
The ALJ will open the hearing with a brief statement explaining how the hearing will be conducted, the procedural history of the case, and the issues involved. In supplemental hearings, the ALJ need only identify the case, state the purpose of the supplemental hearing, and describe the issue(s) to be decided.
Generally, the content and format of the opening statement are within the discretion of the ALJ. However, if the claimant is unrepresented, the ALJ must ensure that the claimant is capable of making an informed choice about representation. For example, the ALJ should ask an unrepresented claimant the following questions on the record:
Did you receive the hearing acknowledgment letter and its enclosure(s)? (If not, the ALJ will provide the claimant with a copy and the opportunity to read the letter.) The ALJ will enter into the record the acknowledgment letter and enclosure(s) sent to the unrepresented claimant.
Do you understand the information contained in that letter concerning representation? (If not, the ALJ will explain the claimant's options regarding representation, as outlined in the acknowledgment letter. Specifically, the ALJ will explain the availability of both free legal services and contingency representation as well as access to organizations that assist individuals in obtaining representation. See I-2-0-20 C., Unrepresented Claimant, I-2-0-91 Sample - Acknowledgment Letter - Oral Hearing Requested - Unrepresented Claimant, and I-2-0-92 Sample - Enclosure to Letter to Unrepresented Claimant.)
Once the ALJ has determined that the claimant is capable of making an informed choice, he or she will either secure on the record the claimant's decision concerning representation, or obtain from the claimant a written waiver of the claimant's right to representation, which will be marked as an exhibit. See I-2-6-98 WAIVER OF REPRESENTATION.
If the claimant desires to postpone the hearing to obtain a representative, and it is the first such request, the ALJ should grant the requested postponement. In such instance, the ALJ should:
go on the record and advise the claimant of the right to be represented;
provide the claimant with information about organizations that provide free legal services;
advise the claimant to notify the hearing office if representative is obtained;
advise the claimant that normally only one postponement is permitted to obtain representation, unless good cause is shown requiring additional postponement;
advise the claimant that the hearing will be postponed and rescheduled and if they appear at the rescheduled hearing without a representative the hearing will proceed without the claimant being represented unless good cause is shown; and
obtain an “Acknowledgement of Postponement in Order to Obtain Representative” from the claimant (See sample provided at I-2-6-97) with his or her witnessed signature. The Acknowledgement is marked as an Exhibit and a copy of the Acknowledgment should be provided to the claimant.
The ALJ should rule on the record his or her determination regarding any prehearing requests or motions of the claimant or representative, i.e., requests for postponement (20 CFR §§ 404.936, 416.1436), disqualification of the ALJ (20 CFR §§ 404.940, 416.1440) and subpoenas (20 CFR §§ 404.950(d), 416.1450(d).
If the claimant or representative requests to make a private recording of the hearing, and the ALJ decides to grant the request, the ALJ's opening statement should include language such as the following:
You asked if you may make a private recording of the proceedings of this hearing. This request is granted for the purpose of providing information for your personal use and convenience in pursuing this claim. However, if your recording interferes with the orderly conduct of the hearing, I shall withdraw this permission. The hearing proceedings are confidential, and unauthorized use or disclosure of this information is prohibited by law, except as expressly permitted by the Privacy Act and the Freedom of Information Act. I also remind you that the recording I am making will be the official verbatim record of this proceeding.