Waiting for a Hearing to be Scheduled before an ALJ, Administrative Law Judge

Individuals who have been A) denied on a disability application and B) denied on a request for reconsideration appeal have the option of filing a second appeal which is a request for a hearing that is decided by a federally appointed judge.

Decisions that issued by administrative law judges tend to be more balanced, meaning that a claimant has a far better chance of having their medical evidence evaluated objectively and fairly.

Proof of this lies in the fact that a social security judge will tend to give the proper consideration and weight to any statements submitted by a claimant's treating physician or treating physicians (some people have more than one) when such statements clearly indicate the claimant's physical or mental limitations and the extent to which these limitations reduce the ability to engage in normal activities of daily living, particularly as they relate to work activity.

Individuals pursuing a claim for disability will generally have at least a forty percent chance of being awarded disability benefits by a judge at a hearing. This is far better than the 30 percent approval rate that is obtained at the initial disability application level or the 12-15 approval rate that is seen at the first appeal level, which is the request for reconsideration.

Disability hearings in which claimants are represented by either a non-attorney disability representative or by a disability attorney will have an even better chance of resulting in an approval, as high as 62-65 percent.

Because social security hearings are far more likely to yield an awarding of benefits, a claimant should always pursue the disability appeal process, at least as far as the hearing level. The only negative, of course, to filing a request for a disability hearing is the length of time that it takes to get a hearing date scheduled.

Prior to the year 2000, it was not uncommon to only wait 3-5 months for a hearing with an administrative law judge to be scheduled. Now, due to backlogs and a system that sees more claims being filed each year, it is not unsusual to see waits of 12 months or longer.

What happens on a disability case after a hearing has been requested and is waiting to be scheduled? At the hearing office, very little will occur on the claim because A) it is only sometime prior to the actual scheduling that the case file is reviewed by the judge who has been assigned to the case and B) the hearing office does not gather updated medical records to further develop the case.

This is very different from when the case is evaluated at the two prior levels (the disability application and reconsideration appeal levels). At those levels, a disability examiner takes full responsibility for obtaining whatever documentation is needed to make a decision on the case.

At the hearing level, by contrast, the only information that will be considered by the ruling judge is whatever information is already in the disability file. Unless, that is, the claimant obtains additional (and recent) medical record documentation. In cases where a claimant is represented, of course, the representative will generally make considerable effort to obtain the following:

1. Recent medical records. Recent documentation is needed to show that the claimant is "currently" disabled.

2. Medical records that address any condition for which the attorney believes a case for disability can be made.

3. In the case of a mental impairment (or a child filing for disability), school records.

4. In some instances, work records such as statements from employers or documentation detailing earnings or time spent on the job.

5. Objective statements from a claimant's physician (known as a medical source statement) that describe the claimant's RFC, or residual functional capacity.

In addition to this, a disability lawyer or non-attorney representative may attempt to secure a bench decision on a case to speed up receiving a decision. Or the representative may attempt to secure an "on the record decision" which could remove the need for even holding the hearing.

Or the representative might attempt to have the hearing scheduled sooner because of the claimant's financial and/or medical situation if that situation can be described as being one of dire need.

About the Author: Tim Moore is a former Social Security Disability Examiner in North Carolina, has been interviewed by the NY Times and the LA Times on the disability system, and is an Accredited Disability Representative (ADR) in North Carolina. For assistance on a disability application or Appeal in NC, click here.

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