Aug 12, 2017

New Prehearing Reviews

     From HALLEX, the manual of Social Security's Office of Disability Adjudication and Review (ODAR) whose name will be changed to OHO this fall:
I-2-5-10. Prehearing Case Review by Other Component Last Update: 8/3/17 (Transmittal I-2-211) 
A.General After a claimant files a request for hearing but before an administrative law judge (ALJ) holds a hearing, an ALJ may, under the circumstances outlined in subsection B below, forward a claim for a prehearing case review to the Disability Determination Services or other component that issued the determination the claimant is appealing. On receipt of the claim(s), the receiving component will decide whether to revise the determination based on a preponderance of the evidence. See 20 CFR 404.941 and 416.1441. Under these procedures, the Social Security Administration may only issue a revised determination if it is fully or partially favorable to the claimant. NOTE: While a prehearing case review is pending, the ALJ retains jurisdiction of the claim and will not dismiss the request for hearing. 
B.When an ALJ May Refer a Case for Prehearing Case Review As set forth in 20 CFR 404.941 and 416.1441, an ALJ may refer a case for a prehearing case review if: Additional evidence is submitted; There is an indication that additional evidence is available; There is a change in the law or regulation; or There is an error in the file or some other indication that the prior determination may be revised. In screening cases for the regulatory criteria, the ALJ will only refer cases for a prehearing case review in which application of the criteria may result in a fully or partially favorable decision. 

10 comments:

Dan Smith said...

This seems like a really good opportunity for claimants' reps/claimants. When DDS makes a truly egregious error (which isn't too uncommon) we can ask ODAR to send the case back to DDS without worrying that the decision will come back even worse.

My only concern would be about the claimant's spot in line for hearing scheduling being mistakenly lost if the case gets transferred back and forth. It really shouldn't though, right?

Anonymous said...

This Agency just loves its Senior Attorney Advisors, and the expertise they possess via having earned rigorous J.D. degrees and years of Agency specific experience, doesn't it? (Sarcasm).

These cases should be going to Senior Attorney Adjudicators in the Hearings Office with the assigned ALJ - Not back to DDS.

It is shameful Agency leadership undeniably continues to despise the Senior Attorney position, vastly underutilizes the expertise and skills of these employees, relinquishes their status to mere decision writer's, treats them unprofessionally, and now seemingly appears to prefer NOT to capitalize on the experience, skill set, and expertise of these employees once they are competitively on the ALJ Register.

The direction Agency leadership is taking with all these recent changes is so far in the wrong direction it is mind boggling.

Dan Smith said...

Never mind, I hadn't read section C yet. This is awesome news.

Anonymous said...

Why wouldn't the judge just otr the case instead?

Anonymous said...


"BALTIMORE NCAC MD

Pre Hearing Development
07/20/2017"

I have some of these (maybe) this is how they look on the AR.
What ALJ (per Hallix)is doing this as they are still showing up on the AR as unassigned?

Anonymous said...

This provision seems to require that a case be assigned to an ALJ before it can be used. Most of the time, in my experience, the cases are scheduled shortly after they are assigned to an ALJ. For this to work the cases would need to be assigned to an ALJ much sooner then usual.

Anonymous said...

Dan: Why would you want an ALJ who thinks a case should be paid to remand it back to the DDS so they can reconsider it? Why not just have the ALJ pay the case. In the remand, the ALJ can't require that the DDS pay it. And as you have indicated, it "isn't too uncommon" for the DDS to make "a truly egregious error."

Dan Smith said...

I don't know much about ODAR's inner workings. Someone suggested this might be an effort to make statistics more palatable. That maybe the case. Perhaps ODAR's FF decisions take more time to write up than DDS's explanations. I don't know why they want to make these arrangements.

I'm just saying that from a representative's perspective, this seems like a good opportunity. Now, I'm still trying to comprehend the difference between a pre-hearing review and a "remand for revised determination" ( which doesn't seem remotely as attractive ) before I go requesting anything

Anonymous said...

The simple answer is a DDS can close a case much faster than a hearing office. DDS can close a case with a simpe notice instead of a lengthy decison.

Pam said...

How does rep request ALJ to review? I just filed RFH with losting level MER.