OTRs

The Social Security Administration (“SSA”) began implementing changes in 2009 with administrative law judge (“ALJ”) training, claims assignment, and monitoring, which were designed to reduce the disability allowance rate. Those changes reduced the ALJ and appellate allowance rates. The SSA has continued to change the rules to make approvals more difficult, most notably, by eliminating the treating physician rule. The on-the-record (“OTR”) allowance rate has correspondingly decreased. An OTR allowance can occur when a review indicates that a case can be allowed without a hearing.

Now may be the time to request an OTR. Because of the coronavirus, hearings are being held by telephone. While a claimant can reject a telephone hearing in favor of an adjournment, many of my clients have chosen to proceed with the telephone hearing, rather than wait when an in person hearing can be scheduled.

The logistics of a telephone hearing are problematical. I am located at my home office, the claimant is located their home, the claimant’s witness is located at their home, the ALJ is located at their home, medical and vocational witnesses are located at their homes, and the hearing assistant is located at the hearing office. The potential for chaos and technical issues in obtaining an adequate recording is substantial. That potentiality might be avoided if an OTR is approved.

I have received more OTRs since the start of COVID19 restrictions than I have the last few years. I represent a 21 year old with Autism, whose OTR was approved last Friday, for a telephone hearing that was scheduled today. The evidence was strong, even the State agency psychologists’ opinions were somewhat supportive, even though they had yet to see the extremely supportive reports and records of the treating mental health providers. Nonetheless, absent current circumstances, the ALJ probably would have gone through the motions of holding the hearing, even though he most likely was already persuaded that the medical evidence established the claimant’s entitlement to benefits.

A sheet metal worker from Bethpage, secretary from Farmingdale, and network engineer from Islip Terrace, were also just approved OTR. Absent current circumstances, the ALJs probably would have held the hearings for those claimants too.

If you are thinking about applying for SSD benefits, it is in your best interest to hire an attorney who specializes in disability law.  My office offers free phone consultations.   We have offices on Long Island in both Nassau and Suffolk counties.