Avoiding Hearings

Wednesday, November 28th, 2007

Although a Social Security claim should be approved if the treating physician’s opinion is well supported by the medical evidence, most disability applications are denied initially by the state agency. The next step is a hearing before a Social Security administrative law judge (“ALJ”), which is about a two year wait. If the ALJ applied the treating physician rule properly, then the disability application should be approved.

While it may seem unfair to make a claimant wait years to have the treating physician rule applied properly, there is an alternative. A claimant can make an “on-the-record” (“OTR”) request for a fully favorable decision pending the hearing. The OTR basically asks that the application be approved because the medical evidence is so strong that a hearing is unnecessary.

When submitting an OTR, it is important to have a file that clearly shows an entitlement to benefits. Thus, while a single supporting physician should suffice at a hearing, it may not suffice when submitting an OTR. Therefore, furnishing medical evidence from additional treating sources is important.

I represent a 45 year old school crossing guard, whose application was denied even though it was supported by an arthritis specialist who provided a detailed report summarizing the clinical, diagnostic and subjective medical findings, and concluded that the claimant was unable to perform sedentary work. In connection with an OTR, a second report was submitted from the claimant’s treating orthopedist. Like the arthritis specialist, the orthopedist’s report summarized the clinical, diagnostic and subjective medical findings, and concluded that the claimant was unable to perform sedentary work.

The OTR was approved. As a result, the claimant did not have to wait for a hearing, go through the stress of a hearing, and had a smaller attorney fee. While it is possible that the OTR may have been approved without the report from the orthopedist, experience has shown that an OTR is usually denied when based upon medical evidence from a single supporting physician

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