How to Write an On the Record Request to Get Disability Benefits Without a Hearing

If you request an "on the record" (OTR) decision from the administrative law judge in your case, you're asking the judge to approve your claim without a disability hearing. Depending on the judge and the strength of your case, an OTR request can be an effective way of obtaining disability benefits without having to endure the typical twelve-month (or more) wait for a hearing.

Here are some tips for crafting a compelling OTR request (for an overview of OTR requests, see our article on what is an on the record decision).

When to Send an On the Record Request

After your disability application has been denied at the initial application and reconsideration level, you have 60 days to request a hearing in front of an administrative law judge (ALJ). When you file your appeal (request a hearing), your claim is transferred from your state's Disability Determination Services (DDS) office to the Social Security Office of Hearings Operations, or OHO (formerly the Office of Disability Adjudication and Review). After a few months, your case is assigned to a particular ALJ and several months after that, your hearing is scheduled.

Probably the best time to submit an OTR request is after your case has been assigned to an ALJ but before you've received a hearing date. Because the judge is the one responsible for deciding your claim, there's little point in asking for an OTR decision before the judge has been named. On the other hand, if you wait until your hearing has been scheduled, it may be too late for the OHO office to use your time slot for another claimant's hearing. Keep in mind that OTR decisions are intended to increase the efficiency of an ALJ and reduce the amount of time he or she spends conducting hearings.

What to Include in Your Request

You will be writing a short "brief" (a summary of your claim and argument for why you should be granted disability) to the OHO office to which your claim has been assigned. Make sure you address your brief to the judge handling your case. If you don't know the name of the judge, send it to the OHO office with the heading "To Whom It May Concern."

First, state your name, date of birth, and Social Security number at the top of your brief.

Procedural History

Next, briefly recap the history of your case, including the date of your application, whether you're filing for Title II (Social Security Disability Insurance, or SSDI) benefits or Title XVI (SSI) benefits, your alleged onset date of disability (the date you claim your disability began), and your date last insured for SSDI, if known. A disability attorney or your OHO office can supply any missing information for you.

SSA Checksheet

The SSA allows disability attorneys to submit a "Recommended Fully Favorable Decision Checksheet" with their brief. You can find the checksheet on the SSA's website: https://www.ssa.gov/appeals/documents/Recommended_FullyFavorableDecision_Checksheet_Form.pdf.

Medical Evidence

Most judges approve OTR requests only in cases where the evidence of disability is overwhelming. Because medical evidence is the cornerstone of a disability case, the largest part of your brief should be a discussion of your medical history, with specific references to the exhibits in your disability file if possible. Draw the judge's attention to any objective evidence of your alleged impairments, such as MRIs, x-rays, and blood tests. If your file doesn't contain many objective signs of your illness, especially if you suffer from a mental impairment, emphasize the long-standing nature of your symptoms and your consistent history of seeing a doctor for your problems.

Before drafting an OTR request, you should ask your treating doctor or specialist to complete a Residual Functional Capacity (RFC) form. Your RFC is the most you can do despite your impairments, and it frequently determines whether you're found disabled. If your doctor finds that your impairments cause functional limitations with standing, lifting, sitting, carrying, bending, stooping, or any other activity required to perform full-time work, point out these limitations in your brief. The RFC form will be much more persuasive if your doctor explains the medical basis for the restrictions he or she includes on the form (for example, no lifting more than 25 pounds regularly and 50 pounds occasionally due to the possibility of dissection of 9 mm left anterior descending aneurysm, as shown on MRI dated August 9, 2020).

"Bad Facts"

Virtually every disability case contains a certain amount of unfavorable evidence that could be used against the disability claimant. It's important to recognize the "bad facts" in your case and tackle them head-on in your OTR brief. For example, if the medical evidence indicates you have a history of drug or alcohol abuse, you can mention that you've been clean and sober for several years or that the substance abuse was completely unrelated to your alleged impairments. Other "bad facts" you should address include:

• working after your onset date
• mentions of "malingering" (exaggerating symptoms) by Social Security's or your own doctor
• a negative report from Social Security's consulting physician, and
• evidence of daily activities that may be inconsistent with disability (for example, your file mentions that you take care of pets or enjoy gardening),

Often there is an innocent explanation for these bad facts, so use your OTR request as an opportunity to give your side of the story. Confronting bad facts directly will also earn you credibility with the judge, and help ensure that they aren't the main focus of your hearing.

Getting Help From a Disability Attorney

Disability attorneys generally submit OTR requests only in cases where they believe their clients have a reasonable chance of being approved without a hearing. After you hire a disability attorney, you can ask whether the attorney will submit an OTR request in your case. Because OTR requests are not appropriate in every case, your attorney may decide that it doesn't make sense to spend his or her limited time on an OTR brief.

Disability attorneys are allowed to submit OTR requests electronically. If you don't have an attorney, you can try to submit your brief by fax using the phone number shown on the bar-coded sheet that you should have received from the hearing office.