I attended a good panel discussion regarding on the record requests at the last NOSSCR Conference in Chicago. There were several good points made, and I will summarize a few here.
- You should write your OTR for a "middle of the road" judge. That is the likely perspective of the attorney advisor reviewing your request.
- Short or long? I favor a 2-3 page OTR request. My experience has been that the attorney advisors will carefully comb through the file regardless of the length of your request, so I keep it short.
- An on the record request gives you the opportunity to present your case at its peak. Over the course of the year or two waiting for resolution of the disability claim, the claimant's condition may vary. Particularly, a claimant with mental impairments may have ups and downs during the claim period. You can file your OTR when the medical record is the most favorable, perhaps just after a hospital stay. Remember, you never know what happens in the future. The claimant may move away prior to their hearing. Or the last progress note before the hearing might read: "Patient feels much better. He is looking for work." Avoid all that by filing an OTR request at the peak of the medical evidence.
- An OTR request may allow you to avoid an unfriendly judge. I hadn't thought about this before, but maybe your hearing office has one of those dreaded ALJs that only grant 10%, 20% or 40% of the claims they hear, while the other judges in the office have more favorable disposition rates (the national average is around 65%). The attorney advisors are likely to have a viewpoint more like the regular judges in the hearing office. By getting the claim granted OTR, you avoid the chance of having the claim assigned to a judge who would deny an otherwise winning claim.
- I find on the record requests very helpful to even out my work load. When I have a few days at the office with no hearings, no deadlines, no appointments, that is a perfect time to write an on the record request in an appropriate case. Even if the request is denied, it will save time in the future when that claim comes to a hearing, because your hearing brief is mostly written.
Clients really appreciate on the record requests. There is much anxiety about the hearing process, and being able to avoid the hearing altogether is always a huge relief.
I often receive a smaller fee when an on the record decision is made. Because the decision is made quicker, there is a smaller amount of retroactive benefits upon which to base the attorney fee. But a lawyer puts a client's interests first. Further, I think that I make up the difference in good will, future referrals, and by not having to spend two days focused on that claim around the time of the hearing.
Both the New Hampshire ODAR and the Portland Maine ODAR send out a monthly T3 Representative Report. That report, which shows the queue for hearings, is an excellent tool to plan on the record requests. Make sure you are getting these reports from your hearing office.