Avoiding SSD Remand Hearing

Saturday, April 25th, 2009

When the Appeals Council vacates a Social Security claim, the remand order tells the Administrative Law Judge (“ALJ”) what to do, which is almost invariably to reevaluate the evidence and hold a new hearing. I was able to avoid having a 30 year old client attend a second hearing by submitting on-the-record (“OTR”) request that the ALJ granted. The OTR argued that the claimant became disabled before he turned 22, and thus was entitled to disabled child’s benefits.

The Remand Order stated that the ALJ failed to evaluate the testimony of the claimant and his mother adequately. I explained that the claimant and his mother had already testified fully, and there was nothing new to add at a hearing. The ALJ agreed that he simply had to re-evaluate the testimony under the guidelines of the Social Security regulations, case law, and ruling, and that additional testimony was not required.

The Remand Order also stated that the ALJ did not analyze the claimant’s residual functional capacity (“RFC”) properly. In issuing his partially favorable decision after the first hearing, the ALJ determined that the claimant became disabled in 2004, so I maintained that any new medical evidence would be irrelevant. Furthermore, I pointed out that all evidence predating 2004 had already been submitted. The ALJ agreed that he simply had to re-evaluate the claimant’s RFC under the guidelines of the Social Security regulations and rulings.

I had previously secured and submitted a retrospective opinion that the claimant became disabled prior to his 22nd birthday, which was unrebutted. Since there was no evidence that the opinion was based upon any unacceptable clinical diagnostic technique, and there was no overwhelmingly compelling non-medical evidence to the contrary, I argued that there could be no “substantial evidence” to reject the retrospective opinion. The ALJ accepted that argument, and approved the OTR.

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