Social Security Disability: On The Record (OTR) Decisions
If you can get an on-the-record review from Social Security, you can win disability without having to have a hearing.
An "on the record" (OTR) decision is a favorable ruling by an administrative law judge (ALJ) that is made prior to a hearing at the Social Security Administration (SSA). An OTR decision is based on the written information that is provided to the judge before a hearing -- OTR is actually short for a decision based "on the medical records."
OTR reviews are available to all individuals who are appealing a denial of disability benefits based on their written application. In order to have a successful OTR decision, an individual must have enough medical evidence to prove they are disabled without the need for further information. (A similar strategy is requesting an attorney advisor opinion.)
How to Get an OTR Review
After your application for disability benefits is denied, you have a right to a request a hearing. You must file a request of a hearing within the time specified by the SSA to get a hearing and to be able to request an OTR. There are two ways you might get an OTR review.
A hearing officer initiates an OTR review. A hearing officer may take the initiative to start an OTR review. For instance, if you submit new supporting medical evidence to be reviewed, the hearing officer may feel that a hearing isn't needed.
Request an OTR review. You should request an OTR review to ensure an OTR review is performed. You make the request to the local Office of Disability Adjudication and Review (ODAR) soon after you file a request for an appeal hearing. Your request should briefly outline why you should be deemed disabled, followed by a thorough explanation that notes the specific medical evidence of your disability. (For more information, read our article on how to write an OTR request.)
What Happens Next
One of three things may happen next.
An attorney adjudicator may contact you. If an attorney adjudicator is reviewing the file, he or she may call you with specific questions, if necessary. Attorney adjudicators may ask questions about whether you are working at all (called substantial gainful activity issues) or when your disability began (called onset date issues). It is important to answer their questions as thoroughly as possible so you can avoid a hearing.
The OTR decision may be granted. Based on the written record provided to the SSA, a decision granting you disability benefits could be granted.
The OTR review may be unsuccessful. If the OTR review does not granted disability benefits, the case will continue onto a hearing. There are no penalties for being denied an OTR decision; in other words, an OTR review cannot result in a denial.
Advantages of an On the Record Decision
Here's why getting an OTR can be to your advantage; there really are no disadvantages to having an OTR.
Expedites the process. Getting a hearing during the appeals process for Social Security benefits can take several months, or even years, depending on the number of total appeals for the area because there are a limited number ALJs to hold hearings. In contrast, OTR decisions can be reviewed by ALJs and qualified attorneys, which will decrease the time you will have to wait.
Avoids a hearing. If a decision is made OTR, there is no need for you to attend a hearing in front of an ALJ. For many individuals, especially those with disabilities, the mental and/or physical stress of having to attend such hearings may be substantial. The need for witnesses to testify at the hearing is also avoided.
Benefits of Being Represented
You always have the right to represent yourself during the disability benefits process. However, there are advantages to having representation (a disability lawyer or nonlawyer representative) when requesting an OTR. The benefits of hiring a disability lawyer are:
A representative will have experience writing a brief to submit to the SSA to support an OTR decision. It is important in these briefs that the argument for approving the OTR decision is clear and meets the requirements of the SSA. Additionally, if there are issues regarding your onset date of disability, a disability lawyer can properly address these in the brief.
Proper medical evidence is essential to receiving an OTR decision. A disability lawyer can, with your permission, speak to your treating physicians to get the medical evidence in a form that is usable by the SSA. For example, the SSA often looks for specific medical phrases in the medical evidence; if your doctor is made aware of what those phrases are (and they are medically appropriate for your case), your physician can use such phrases in his or her paperwork to make it clear that certain SSA requirements are being met.
A representative can submit a proposed decision if registered with the SSA under their "Appointed Representative Services." Registered representatives can fill out an SSA template that explains the elements of your disability and why you are being awarded disability benefits. Proposed decisions are reviewed by an ALJ and, if approved, can be signed off by the ALJ at that time. Allowing a registered representative to write up the decision saves time, as you do not have to wait for the ALJ to write a decision.
A representative can answer questions if they arise. Your disability lawyer can speak to the attorney adjudicator to clearly relay the information in your case. A representative will be able to speak on the specific merits of your appeal with the attorney adjudicator.
A representative can negotiate a new disability onset date, if needed. Oftentimes, an ALJ will be ready to approve disability benefits, but there is a question as to how far back your retroactive benefits should go. The ALJ may not agree with the onset of disability date that you put on your disability application, called your alleged onset date, or AOD (perhaps because your medical records don't establish that your disability began then). Instead, the ALJ may want to use a later date, which might deprive you of a few months of backpay. If you have a disability lawyer, the lawyer can negotiate with the SSA to establish a new onset date.
In short, if you think your medical records are strong enough to win you an approval in an OTR review, it can make sense to talk to a lawyer. You can find a local disability lawyer through Nolo.