What Is a Social Security Attorney Advisor Opinion?

The disability determination process is a lengthy one, and it can sometimes take over two years for the Social Security Administration (SSA) to make a final decision on your claim. If you've been denied benefits twice and have requested a hearing with an administrative law judge, you may—depending on the facts of your case—be able to get a decision faster by asking that an attorney advisor make a decision instead of a judge.

Attorney advisors are staff members who work alongside judges in the SSA's Office of Hearings Operations. In order to reduce backlogs and free up space for judges to conduct hearings, attorney advisors are given certain leeway to approve claims for disability benefits before a hearing is conducted. If an attorney advisor finds that you meet Social Security's definition of disability, you'll receive a Notice of Award without having to attend a hearing.

When Can SSA Attorney Advisors Issue Pre-Hearing Decisions?

The Social Security Administration allows attorney advisors to issue pre-hearing decisions only in limited circumstances. (20 CFR §404.942.) First, you'll have to have filed a request for hearing on your claim for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits. Once you've submitted your request, it's sent to the hearing office responsible for handling disability claims in your geographic area. There, an attorney advisor may review your case in the following situations:

• since your last denial, you submitted new evidence that is important to your claim
• there is an indication that additional evidence is available (such as medical records)
• there's been legal or regulatory changes helpful to your case, or
• there is an error in your file or some other indication that you should have already received a fully favorable decision.

Fully favorable decisions are disability approvals that are based on the date that you claim your disability started, as opposed to partially favorable approvals that are based on a different date. Attorney advisors are only allowed to issue fully favorable decisions—if they agree that you're disabled but disagree on your alleged onset date, you'll need to hold a hearing with a judge.

Most attorney advisor opinions are issued sua sponte, meaning that the employee reviewing your file has come to their own conclusion that your case warrants a fully favorable decision. But if you think you meet the above requirements for an attorney advisor opinion, you may ask for one by contacting the Office of Hearing Operations handling your claim. You can find this information in the top right corner of most printed correspondence you receive from the SSA.

What's the Difference Between a Social Security Attorney Advisor Opinion and an OTR Decision?

OTR (short for on-the-record) decisions are very similar to attorney advisor decisions, only they're made by the judges themselves instead of staff attorneys. Practically speaking, there's little difference between the two—both OTR and attorney advisor opinions can be issued at any time after you've requested a hearing, and only for fully favorable decisions. For more information, see our article on on-the-record requests.

What Kinds of Claims Are Approved by an SSA Attorney Advisor?

Only the strongest disability claims will be approved by an attorney advisor or administrative law judge without the need for a hearing. Generally, if there's any question as to whether you're disabled, you'll be scheduled to attend a hearing. Below are some situations where the Social Security Administration might decide to send your claim to an attorney advisor for review.

• You submit evidence of a new test result establishing that you meet the requirements of a listed impairment that qualifies for automatic approval of benefits.
• After your application was denied, your doctor diagnosed you with a compassionate allowance disorder that's related to a condition listed in your original application.
• The disability examiner reviewing your file didn't consider important medical evidence (like MRIs, X-rays, or lab results) showing that you meet or equal a listed impairment.
• A Social Security field representative mistakenly found that you didn't meet the non-medical eligibility requirements to receive SSDI or SSI.
• Evidence in your file clearly supports a finding of disability based on Social Security's grid rules or special medical-vocational profiles.
  
  

Here's an example of how an attorney advisor might approve a claim based on a special medical-vocational profile. The attorney reviews the application of a claimant with only a 6th-grade education who had worked for more than 35 years as a laborer, but could no longer do that work due to a head injury. This claimant should have been approved at the initial application stage based on the "worn-out worker" rule, but the claims examiner didn't consider the rule and wrongly denied the claim. The attorney advisor can issue a fully favorable decision.

The Social Security Administration Pre-Hearing Review Procedure

When the SSA selects a case for a pre-hearing review, an attorney advisor will read the existing documents in the file and decide whether additional evidence is needed to make a fully favorable decision. If so, the attorney can request any relevant additional evidence—including medical records—and may even schedule a conference with you and your representative (if you have one). Only after reviewing the new information with the other evidence in your file may the attorney advisor issue a favorable decision.

If the Attorney Advisor Issues a Fully Favorable Decision

This is the desired outcome—the attorney advisor agrees with you that you've been disabled since the date you claimed on your disability application. That means that you'll be granted disability benefits going back to your earliest date of entitlement. The attorney advisor will send you a letter that explains the legal basis for their decision, and you won't have to attend a hearing with a disability judge. (In the event that you already have a hearing scheduled, it will be canceled.)

If the Attorney Advisor Can't Issue a Fully Favorable Decision

If the attorney advisor can't issue a fully favorable decision—whether because they aren't sure that you've been disabled at all times since your alleged onset date or they don't think you currently meet the agency's definition of disability—your hearing will go ahead as scheduled. It's important to keep in mind that an attorney advisor does not have the authority to issue an unfavorable decision. Only an administrative law judge can do that, and only after a hearing.

Getting Legal Help When Dealing With the Social Security Administration

You aren't required to have legal representation at any point during the disability determination process, but it's a smart idea—especially if you think your claim could be approved following an attorney advisor review. Your lawyer can help you draft a brief that lays out why you should receive a pre-hearing fully favorable decision and handle all communications with the SSA, including responding to any attorney advisor requests for more information.

Your lawyer can also prepare you for a disability hearing if you aren't able to get a fully favorable attorney advisor opinion. The SSA hasn't issued many attorney advisor opinions in recent years, so it's very likely that you'll need to attend a hearing before you win your case—and having an experienced disability lawyer representing you greatly increases your chance of success.