405.1038—Deciding a case without a hearing before an ALJ.
(a) Decision wholly favorable.
If the evidence in the hearing record supports a finding in favor of appellant(s) on every issue, the ALJ may issue a hearing decision without giving the parties prior notice and without holding a hearing. The notice of the decision informs the parties that they have the right to a hearing and a right to examine the evidence on which the decision is based.
(b) Parties do not wish to appear.
(1)
The ALJ may decide a case on the record and not conduct a hearing if—
(i)
All the parties indicate in writing that they do not wish to appear before the ALJ at a hearing, including a hearing conducted by telephone or videoteleconferencing, if available; or
(ii)
The appellant lives outside the United States and does not inform the ALJ that he or she wants to appear, and there are no other parties who wish to appear.
(2)
When a hearing is not held, the decision of the ALJ must refer to the evidence in the record on which the decision was based.
[70 FR 11472, Mar. 8, 2005, as amended at 74 FR 65336, Dec. 9, 2009]