ALJ Hearings: Prehearing and On the Record (OTR) Reviews
Under certain circumstances, the SOAR representative can request that a case be referred back to DDS for a Prehearing Review or that the Office of Hearing Operations (OHO) make an On-the Record (OTR) decision prior to an ALJ Hearing. As well, when OHO feels they can make a fully favorable decision without holding a hearing, they can independently refer a case back to DDS and/or make an (OTR) decision.
Prehearing Case Review
SOAR representatives can ask the Office of Hearings Operations (OHO) to refer the case back to DDS for a prehearing case review. Under this procedure, the Social Security Administration may only issue a revised determination if it is fully or partially favorable to the applicant.
Requesting a Prehearing Review
You can request a prehearing review when filing a hearing request via iAppeals. Make a notation in the Remarks Section of the iDisability Report-Appeal about the reason(s) for which you are requesting a pre-hearing review. Be sure to upload all supporting documents! You can also request a prehearing review after a Request for Hearing is filed and any time before hearing is scheduled.
When requesting a prehearing case review, keep in mind the four circumstances under which the ALJ may refer a case back to DDS:
- additional evidence is submitted
- there is an indication that additional evidence is available
- there is a change in the law or regulation
- there is an error in the file or some other indication that the prior determination may be revised
|ALJ Reason for Prehearing Case Review||Benefits of Prehearing Review|
|Additional evidence is submitted.||SOAR providers almost always have additional evidence to submit! Along with an iAppeals submission, additional evidence is submitted.|
|There is an indication that additional evidence is available.||SOAR providers often learn of additional evidence after a claim is filed, and indicate this in the iDisability Report-Appeals.|
|There is a change in the law or regulation.||There may be a new law or regulation which may now result in an allowance. For example, now that Advanced Nurse Practitioners are ‘acceptable medical sources’, medical evidence is considered more favorably. Also, changes in the Listings of Impairments may be more favorable to the applicant.|
|There is an error in the file or some other indication that the prior determination may be revised.||At times, medical evidence may not have been associated into the applicant’s electronic folder. Or, a SOAR provider may discover an error in how Substantial Gainful Activity (SGA) or an Unsuccessful Work Attempt (UWA) was calculated.|
Read the full updated Prehearing Review procedure. If the ALJ decides to refer the case to DDS for a prehearing review, then you have a good indication the ALJ would award the case. Especially if any of these circumstances could result in a partial or fully favorable determination. Generally, if the revised determination would be partially favorable, the request for hearing will proceed unless all parties agree to a dismissal of the request. If the revised determination would be unfavorable, the parties to the hearing will be notified that the agency will continue to process the hearing request.
On-the-Record (OTR) Decision
Once a case has been transferred to the court’s Master Docket, the SOAR practitioner can request that OHO consider approving the claim based on the documentation in the record and make an OTR decision. Only the ALJ or Attorney Advisors at OHO can make an OTR decision.
Requesting an OTR Review
- The OTR request is simply a letter stating the Listing section that the applicant meets followed by a discussion of how the specific requirements of the Listing are met.
- No official form is required. See a sample OTR request.
- The letter is similar to a Medical Summary Report (MSR) that the SOAR practitioner develops for an initial application - it should link the claimant’s functioning to medical records and third party reports.
- A SOAR practitioner requesting an OTR review should notify or remind the hearing office that the applicant is in “dire need” (e.g., homeless, residing in shelter, eviction is pending) and provide some proof of the applicant’s situation.
Benefits of Successful Prehearing and OTR Reviews
- These decisions save applicants long waits for hearings and decisions, accelerating access to income and medical benefits.
- SOAR practitioners save hours of work when they do not have to prepare for and attend a hearing.
- SOAR practitioners gain credibility with and gratitude from ALJs whose time is also saved when cases can be decided prior to a hearing.
- If the requests are not granted, the applicant retains the right to a hearing.
- February, 2023