Tuesday, February 16, 2010

Is there any way to get a favorable decision at the hearing level without a hearing?

The short answer is yes. However, the one method I am about to explain is underutilized or not used at all by many lawyers and representatives and sometimes over used. It is called a requests for a fully favorable on the record decision also frequently called OTRs. This method of getting a favorable determination is not a good choice for all claims. When a lawyer decides to ask for a fully favorable on the record decision before a hearing they should only do so when they feel they have an extremely good case with the evidence they have. The lawyer then writes a brief detailing why his client is disabled under the rules and how a fully favorable decision is supported by the evidence in the file. As I said earlier, there are some lawyers and representatives who never do this. On the other end of the spectrum, there are lawyers and representatives who do this on every case or close to it. Briefs for OTR's are most successful when they are used sparingly for only cases they feel are strong enough that they can win by this method. The reason I say this is because if the lawyer is known by the employees at the hearing offices to only send requests for fully favorable on the record decisions when it is appropriate, then the lawyer's brief is more likely to be read quicker and given more credence since the lawyer will have a good track record with that office. Most people at the hearing stage probably feel their case is strong enough for an OTR. However, this decision should be left up to the lawyer who is very familiar with the types of claims that are likely to get a favorable result using this method. The hearing offices like to approve extremely good cases before a hearing because it decreases the average wait time for a hearing at that office because there is one less hearing to schedule. However, the hearing offices do not like to receive requests for OTR's if it is not an extremely good case because it can actually slow down the offices workflow by requiring their attorneys to do extra reading without any benefit to the hearing office. A successful OTR can decrease and individuals wait for decision in some cases from years to months. There is nothing wrong with asking your lawyer or representatives if your case is strong enough at the moment to request an OTR but you should respect your attorneys decision not to do this if he feels your case is not ready and not likely to result in a favorable decision without a hearing. Keep in mind, most cases at the hearing level should not request an OTR. In fact, most cases that win at the hearing level will still have to go through the hearing process. In many cases, your testimony at the Social Security hearing can play a big part in you being found disabled. So if your lawyer decides not to do an OTR in your case, do not look at it as if this means you have a bad case, it just means your case might need more development or your testimony at a hearing is crucial to the case. Lastly, I want to mention that even if a request for an on the record fully favorable decision is denied you will still have an opportunity to have a hearing and a decision will be made after that hearing.