Social Security Disability On The Record Decision: When Is The Best Time To Request?

Asked 12 months ago - Dallas, TX

App. for SSDI/SSI Dec. 2009 with AOD Sept. 2001 (last day of SGA). The FO incorrectly entered my AOD as Nov. 2009 (protective filing date). This incorrect AOD is still affecting my claim after 4 years. 1st ALJ hearing denied; rep withdrew; I submitted my own appeal; AC remanded with instructions to correct my AOD to Sept. 2001. 2nd ALJ hearing was scheduled; obtained 2nd rep; he ignored my concerns about ongoing AOD causing the ME to only have access to records from Nov. 2009/current (this left out 8 years of relevant records). DLI Dec. 2006. I have 2 RFC's supporting my disability back to 2001; x-rays show spinal fusion/kyphosis; 2 MSS from Rheumatoid doctor plus 6 series of x-rays (2003-current). 2nd ALJ hearing approved SSI but dismissed SSDI because of AOD; I met listing 14.09C1.

Additional information

ALJ changed my AOD to April 2010, thus approving SSI as of that date. Rep appealed with brief and other evidence. AC did not approve ALJ changing AOD; remanded again with instructions to clarify AOD; agreed to my disability. 3rd ALJ hearing scheduled (by video) with notice of VE to appear. If my claim hinges on AOD clarification, why is there a VE and no ME? Also, the notice states the VE will testify from Nov. 2009/current. This shows my AOD is STILL not correct! I asked my rep to request OTR because medical records clearly show my disability before DLI. Could this screwy process just be an approved SSDI claim in the works but determining how far back payments would begin? Why wouldn't my rep simply request an OTR at this point instead of making me go through a 3rd hearing? With this being ALJ hearing #3, what are the chances the (new) ALJ will just approve my claim? I'm beginning to believe my rep is prolonging my claim so he can ask for more fees.

Attorney answers (4)

  1. Clifford Michael Farrell

    Contributor Level 19

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    Answered . You have very good handle on your claim. You should be asking this question of your current rep - is that person an attorney? Do they specialize in SS claims?

    There is much information I think I or any other attorney would want to know before providing legal advice here. For example, what does the objective evidence say your condition was at date last insured - not the RFC forms, but the objective medical evidence (MRI, EMG, CT scans, clinical exam, etc.). In my view, your condition back to 2001 probably is not too significant - You can only get paid 1 year of retroactive benefits on SSDI if you win, so that would be back to December 2008. So, you need to prove disability only as of December DLI to win the SSDI.

    Talk to your representative and ask the same question you posted here. If you decide you want a new attorney, there are a number of good attorneys in your area, some of whom you can find here on Avvo. Use the “Attorney Finder” feature of Avvo for help with that.

    You can find a Board certified specialist in Social Security by contacting the National Board of Trial Advocacy. They evaluate lawyers (independently) in many types of claims and require extensive experience and testing before a lawyer is certified. They have a section specifically for Social Security: The National Board of Social Security Disability Advocacy, Divisions of the National Board of Legal Specialty Certification.

    Their link is: http://www.nblsc.us/

    You may also contact your local city, county or state bar association to see if they have a lawyer referral program, or you may contact your local legal aid office if you cannot afford an attorney. If there is a law school in your area, you may contact their legal clinic as well. Or, use the “Attorney Finder” feature of Avvo for help with that.

    Finally, you may also contact the National Organization of Social Security Claimants' Representatives (NOSSCR) for the name and email address or telephone number of attorneys in your area. The telephone number for the lawyer referral service of NOSSCR is 1-800-431-2804. NOSSCR's website is www.nosscr.org.

    I hope this information helps. Good luck to you!
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  2. Christian K. Lassen II

    Pro

    Contributor Level 20

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    Answered . More info is needed to properly evaluate. Avvo has a terrific "find a lawyer" tool to locate a top-rated Avvo attorney with a low contingency fee.

  3. James Bradley Mogul

    Contributor Level 9

    2

    Lawyers agree

    Answered . It can be quite difficult and frustrating to get errors corrected. This is one of the reasons to have a lawyer. If you don't have one, get one. If you do have one, let him fix this for you.

  4. Joseph Peyton Tunstall III

    Contributor Level 8

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    Answered . I seriously doubt your representative is delaying for more fees. The frustrating part of your saga appears to be that you have a very clear understanding of what you need but are having difficulty communicating your desire to your representative. I would doubt that an request for on the record decision will do you any good. You will more likely than not need an additional hearing as the prior history of your claim does not lead itself to an on the record decision regardless of the medical information. I would really push your representative to amend your AOD in writing prior to the hearing with request for the VE to have all necessary medicals.

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