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Social Security now provides a check sheet, in the form of an online fillable PDF, for on the records requests.

An “on the record” (OTR) request asks Social Security to grant your case on the record without a hearing. This request is for claims awaiting a hearing at the Office of Hearings Operations (OHO). On the record decisions can only be fully favorable. You cannot lose your case on the record. Rather, if the OTR request is denied, your claim simply stays in line for a hearing.

OTRs are favored by Social Security, when appropriate. Why go though the hearing process, and all the work to prepare a claim for hearing, if the claim is definitely going to be granted? Cases granted on the record free up resources for other claims.

In my view, OTR requests should only be filed in a minority of cases, where a favorable result is mandated by the evidence and by Social Security’s rules and regulations. The medical evidence in the record should be up to date before an on the record request is filed.

An OTR request is certainly appropriate 1) if the claimant meets a listed impairment, or 2) if PRW is clearly precluded at Step 4 and the claim would be decided favorably at step 5 by direct application of the Medical-Vocational Guidelines. Such claims are clear-cut winners. Claims that require a decision based on subjective evidence (such as the level of the claimant’s pain), or claims that would require vocational evidence, are not strong candidates for an on the record decision.

Next time you are considering an on the record request, check out the check sheet.

I first starting tracking allowance rates on this blog over 15 years ago. Back in 2008 and 2009, ALJ allowance rates were steady at 63%. From that level, there has been a significant slide in allowance rates at the ALJ level:

  • 62% in 2010
  • 58% in 2011
  • 53% in 2012
  • 48% in 2013
  • 45% in 2014
  • 45% in 2015
  • 46% in 2016
  • 47% in 2017
  • 45% in 2018
  • 45% in 2019
  • 49% in 2020
  • 51% in 2021
  • 51% in 2022
  • 45% in 2023

To be fair, allowance rates at the initial level of review have crept up from the 2010 baseline of 35% of initial claims to 38% in 2022 and 39% in 2023. Since there are many more initial claims than claims at the hearing level, it is a notable increase.

Those of us practicing Social Security disability law are well aware of the changes in allowance rates at all levels over the past 15 years. ALJ allowance rates slid downward in the years after 2010, stabilizing at around 45%. They trended up slightly during the COVID era, and are now back down to 45% again, which seems to be the new baseline.

This is not just an abstract discussion. With 200,000 to 300,000 claims at the hearing level every year, the reduction of allowance rates means tens of thousands of claimants have their disability claims denied instead of granted each year. Not every disability case is a clear winner or a clear loser. For those claims in the middle, the chances of receiving benefits at the hearing level are now significantly lower.

Each year, the Social Security Administration releases statistics about the disability and SSI programs in an easy-to-understand format, called the “waterfall” chart. The waterfall chart shows the percentage of claims approved and denied at the various levels of review.

The chart shows what claimants can expect, statistically, for their claim for Social Security disability benefits. I like this chart, and have posted an annual waterfall chart dating back several years.

For comparison, here is the waterfall chart from last year and the year before.

Last Fall the Social Security published a proposed rule change that would reduce the period of PRW from 15 years to 5 years. As I have said before, I strongly support that change, which would reduce the paperwork burden of disability claims and lead to more realistic determinations.

The Federal Register published today its semiannual Unified Agenda of Federal Regulatory and Deregulatory Actions, which describes regulatory actions across the governent. That document on page 9525 provides a timeline for final action on the SSA proposed rule, listing April 2024 for final action on the proposed rule. That timeline had not been explicitly set forth before, although the proposed rule’s discussion of its expected economic impact assumed an implementation date of May 2024.

Anyway, now we know. Look for final action on the proposed rule in April.

3/14/2024 Update: The proposed rule has been submitted to OMB for approval.

4/18/2024 Update: The final rule has been published in the Federal Register. It will become effective on June 8, 2024.

There is a good article in the January 2024 issue of The Forum (NOSSCR’s monthly newsletter to its members) by North Carolina disability lawyer George Piemonte regarding cross-examination of the vocational expert at hearing regarding obselete jobs listed in the Dictionary of Occupational Titles (DOT). It is reprinted below:

Many times, the VE will list jobs at Step 5 that are obsolete. No doubt you have had VEs say addresser, or tube operator, or cutter and paster, for example, not only exist but exist in the thousands. It is doubtful these jobs, and several others, exist in the current economy as described in the DOT.  

The Commissioner chartered the Occupational Information Development Advisory Panel (OIDAP) (See OIDAP commissioned the Occupational and Medical-Vocational Claims Review Study in 2011.) In that more than a decade old study, on slide seven, SSA presenters indicated, “[i]t is doubtful that [addresser, tube operator, and cutter and paster], as described in the DOT, currently exist in significant number in our economy.” And while SSA has not taken administrative notice of this study, it has never publicly refuted the findings or questioned the validity of them. Courts throughout the country have found jobs identified by the OIDAP study to be obsolete. The Supreme Court in Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) said substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” (Emphasis added)  

It is not unreasonable to believe the jobs listed in the OIDAP study and many others, document preparer comes to mind, are obsolete as they described in the DOT.  

So, how do you deal with the VE giving obsolete jobs?  

  • Ask the VE when the DOT description was last updated for that job. 
  • Read the DOT description to them and ask where and when was the last time they saw the job performed as in the DOT.
    • For example, ask them to tell you when and where they saw a person working eight hours per day, five days per week addressing “by hand or typewriter, envelopes, cards, advertising literature, packages, and similar items for mailing.” 
  • Get them to agree the job(s) is/are materially different in the current labor market than as set forth in the DOT. 
  • Get them to agree that the DOT description is obsolete. 
  • Get them to agree that the Occupational Outlook Handbook has more current information about jobs than the DOT. (SSA has taken administrative notice of The Occupational Outlook Handbook. See 20 C.F.R. § 404.1566(d)(5).)  
  • Get them to admit that the O*Net and various other government and published sources have reliable job information more current about job than the DOT. (See 20 C.F.R. § 404.1566(d).) 
  • Get a vocational opinion that the job(s) is/are obsolete and submit it as rebuttal evidence.  

Too many people are being denied their rightful benefits based on jobs that no longer exist. Your job is to make it clear that they do not exist in the current economy as described in the DOT. 

Social Security has added Initial and Reconsideration cases to its status report in Electronic Records Express (ERE).

Here is a screenshot:

ERE Status Report

The status report now allows a Representative to quickly determine whether or not they have been associated with a particular client’s disability claim file. Previously, we would have to try to access the claimant’s electronic folder, a more time-consuming process. This new feature allows quick confirmation that you have been associated with the file. It is terrific addition to the ERE system.

02/01/2024 update: A claim at Reconsideration drops off the status report once the Reconsideration determination has been made (and before an appeal from Reconsideration is made). So a Reconsideration claim dropping off the list is your first indication that a new determination has been made.

A hearing with an administrative law judge (ALJ) to determine medical eligibility for Social Security disability benefits usually follows a pattern: opening remarks by the judge and then the claimant’s lawyer, the claimant’s testimony, and then testimony of a vocational witness regarding the claimant’s past relevant work, and whether or not various functional limitations would preclude that past relevant work and/or other work. Broadly speaking, this is pretty much the course of most hearings. At the close of the hearing, the judge often will say something like “Thank you for coming today. I will review the record and issue a written decision soon.”

Occasionally, at the end of the hearing the judge will announce that the claim will be granted, and that a written decision will be forthcoming. But usually applicants leave the hearing without knowing the outcome of their claim.

These hearings are completely unfamiliar to most people, and there is a great deal at stake. I want the client to return home with a fair idea of the probable result, so I always spend time after the hearing to discuss with the client how the hearing went.

There are usually clues from the hearing about the probable result. Strong clues are the vocational testimony, and the judge’s choice of hypothetical questions for the VE. The caliber of the testimony of the claimant during the hearing is also a strong clue, along with the tenor of the questioning of the claimant from the judge. My past experience in other cases with the particular judge at the hearing also informs my opinion.

As a result, I usually have a pretty good idea at the end of the hearing what the decision is going to be. And I always share that with my client.

 

New evidence for Social Security claims must be submitted 5 business days ahead of the hearing. See 20 CFR 404.935(a) and HALLEX I-2-5-13. With a typical weekend, that’s 7 days ahead of the hearing. Holidays, which are of course not business days, must be accounted for as well. So beware the 3-day holiday weekend.

The federal holidays following Christmas and New Year’s Day can sneak up on you. The Birthday of Martin Luther King, Jr. is January 15th, and Washington’s Birthday will be honored on Monday, February 19th this year. If you have a hearing during the week following one of these holidays, as I do, you must take the holiday into account when calculating filing deadlines.

New evidence includes updated medical evidence and the Representative’s brief. Everything must be filed 5 business days ahead to be timely for the hearing. While filing earlier is always best, be aware of the deadline.

Substantial Gainful Activity (SGA) is the amount of money that one can earn and still qualify for Social Security disability benefits. The amount is adjusted each year for inflation, as shown by this table. In 2023, the amount is $1,470. For 2024, the SGA amount goes up to $1,550.

The SGA amount is important for two groups of people:

  • A person applying for disability benefits must have (or be expected to have) a period of 12 consecutive months with wages below SGA (subject, of course, to the rules for unsuccessful work attempts and Impairment Related Work Expenses).
  • A person receiving Title II disability benefits can earn up to the SGA amount and still receive benefits (be sure to also take a look at the trial work rules).

For those receiving TItle II benefits and working part-time, it is your responsibility to keep track of your monthly earnings and make sure they remain below the level of SGA. And remember, SGA is based on gross pay, before payroll taxes are withheld.

If you have monthly earnings above the level of substantial gainful activity, it is problematic for your disability or SSI claim.

For 2023, the SGA amount is $1,470. Earnings over that monthly amount can present real challeges to receiving benefits. Depending upon the circumstances, you can be denied benefits or the benefits you receive can be terminated if your earnings are too high.

However, if your earnings are not way over SGA amount, there are ways to reduce the earnings counted by Social Security when determining whether or not you are working at the SGA level. These are called Impairment Related Work Expenses (IRWEs).

Impairment Related Work Expenses are unreimbursed expenses that are 1) related to your impairment and 2) help you to work. Many different expenses qualify, but the most prevalent expenses are medical and medication costs. So if you are paying for medical visits, medication or for insurance copays, these are likely to be expenses that can reduce the earnings counted for SGA income. There are many other qualifying expenses. See Social Security Ruling 84-26 for more.