Filing a Request for Hearing

I’m Clearly Entitled to My Social Security Disability Benefits! Why Doesn’t My Lawyer Ask the Judge for an on the Record Decision?

As your Social Security attorney gets ready for a hearing in front of a Social Security judge, they are probably preparing a memo of law that reviews, for the judge, the five-step sequential evaluation test used in every case to determine your entitlement to benefits. They are probably pointing out to the judge the evidence in the record that supports an award of benefits without having to go to a hearing.

So why doesn’t the lawyer ask the judge for an on the record decision, so you don’t have to go to that hearing?  

The Social Security Rules

Under 20 C.F.R. Section 404.948(a,) a judge can issue a wholly favorable decision without having a hearing. Whether the judge decides to do that or not is in their total discretion.

If, while preparing my memo of law, I think it is appropriate and I think the judge may grant the request for a fully favorable decision, I will ask for the judge to do so.  The judge may agree and grant the request, or the judge may decide to go forward with the hearing.

What Happens if the Judge Says “No!”

Just because a judge says “no” to a request for an on the record favorable decision doesn’t mean that all is lost. The judge will be educated about your case, and might even tell me or your attorney why the request was denied so we can focus on supplying that information to the judge at the hearing.

It might be that the judge has specific questions they want you to answer at the hearing, or it might be that they need to meet their quota for the number of hearings that must hold each month. Who knows.

Why Cavey Law?

Not every case is appropriate for a request for an on the record decision. It is not a request that should be abused, as there is a time and place for the request to be made. If you think your attorney should ask, talk with your attorney about the pros and cons of such a request.   

Should I Waive My Right to a Social Security Disability Hearing?

No! Never, ever waive a hearing. A hearing is your only opportunity to truthfully tell your story about your symptoms and functionality to a judge. The judge wants to hear from you about why you can’t do the lightest and simplest job you held in the five years before you became disabled, and why you can’t do other work in the national economy in view of your age, education, transferable skills, and your restrictions and limitations.

But I’m Scared!

Of course, you are scared! You have probably never testified, and are scared that you will screw it up. Tell your Social Security lawyer why you are afraid.

It might be that you are afraid of travel, being in public, or some other reason. Your lawyer may be able to address those issues so you can appear by phone or my video.

However, you might be afraid that you will say something wrong. At Cavey Law, we have shot a mock Social Security Disability hearing video so you can see what happens during a hearing. Better yet, we have shot a video called the “Direct Examination” video that goes through every question that you could be asked during a hearing and explains how, with examples, to truthfully tell the judge the story of your symptoms and functionality. We also give you a copy of the direct examination questionnaire we have prepared based on our years of experience handling Social Security Disability claims.

You are expected to complete it in draft for us because we have a practice session with you. Yes, we play the judge, and you play you. We go through all the questions you may be asked, and questions we are pretty sure you will be asked based on your medical records or forms. We want you to be fully prepared and comfortable with what will happen during your hearing.

It takes teamwork. We provide you with preparation and reassurance. Don’t go it alone and never, ever waive your right to a hearing.

Can a Social Security Judge Issue a Subpoena to Get My Medical Records if My Doctor Won’t Cooperate and Give Us the Records?

Yes, but it is a “qualified” right. Under 20 C.F.R. Section 404.950(d)(1), a written request for a subpoena can be made by you, and can be issued for medical records. A subpoena can also be issued for other records, and even witnesses, when “it is reasonably necessary for the full presentation of a case.”

The request had to be in writing and submitted to the judge at least ten business days before the hearing. It has to:

• Provide the names and addresses of the witnesses.
• Identify the documents to be produced with sufficient detail to find them.
• State the important facts the witness or documents are expected to prove.
• Explain why these facts could not be proven without issuing the subpoena.
• Explain why written questions, called interrogatories, are not a substitute for live testimony.

The judge can grant your request in whole or in part, or even deny the request. If the request is denied, you or your attorney needs to make a record at the hearing and explain why the subpoena was requested, and what information it is anticipated would be provided.

The costs of issuing the subpoena, the witness fees, and mileage will be paid by Social Security.

What Is a Judge Likely to Do if My Doctor Won’t Produce Medical Records?

It depends, but it isn’t uncommon for the judge to issue a subpoena for current and relevant medical records. Rarely will a judge send questions to the doctor, or order the doctor to come to a hearing.

What the judge does will also depend on when the request is made for the subpoena. The earlier, the better, and the more relevant the records, the more likely the subpoena will be granted.

The Bad Copy Rule, and Your Social Security Disability Hearing File

Your social security claim file is kept by Social Security in the form of an electronic file. It is sorted into different sections. You can imagine that not only does junk make its way into your file, but also bad copies of medical records and other material.

The SSA’s best practices tell Social Security attorneys not to submit bad copies. If a document can’t be read because it is illegible or a poor copy, your attorney has an obligation to provide a typed legible version or clear copy, if possible.

If the records are handwritten and can’t be read, it might be necessary to have the records transcribed. Illegible and poorly copied records don’t help your claim, and just make the SSA and a judge very unhappy.

We at Cavey Law want to submit the best copies of records, so we ask our clients to write legibly and clearly. We also convert documents to PDF files, which we find provides a cleaner copy than a faxed document.