In November, I published a four-part series on what to expect at a Social Security Disability (SSDI)/Supplemental Security Income (SSI) Administrative Law Judge Hearing. (Part1, My Hearing has been scheduled, now what?; Part 2, the day of your ALJ Hearing; Part 3, what happens during my hearing?; Part 4, tips for an effective Hearing.) Recently, I have received questions on what to expect after the hearing is complete. This article will focus on what happens following an ALJ (ALJ) Hearing.
Closing of Your Administrative Hearing Record
Normally you will not receive your decision at your hearing. The ALJ usually explains that a decision will be made and mailed to you shortly after your hearing. If all the evidence has been submitted and no further medical development is necessary, the ALJ will close your administrative record.
As previously discussed in how to prepare for an ALJ Hearing, it is extremely important to submit all of your medical records before your hearing is held. Ideally, the ALJ should always close your record at the conclusion of the hearing. If the record is not closed, further delay in issuing a decision will occur. The following are examples of situations of when the ALJ may determine that your record cannot be closed immediately:
- The ALJ determines that information available from your treating sources does not fully explain your limitations. In this situation, the ALJ may need to schedule you for a consultative examination (CE) at the expense of the Social Security Administration to determine your capabilities. This should only be required in situations where your limitations cannot be determined from the information provided by your treating medical sources.
- The ALJ needs additional information from future medical visits to determine the current status of your medical condition. For example, you have completed chemotherapy and radiation for cancer, but you have not yet seen your oncologist or had follow-up testing to determine if the therapies were successful. In this situation, the ALJ may require documentation from a future medical visit to determine your eligibility.
- You are not receiving treatment for a medical condition. A medical condition is discussed in your medical records or your testimony, but you have not had active treatment for your condition from a medical source. The ALJ has a duty to develop the record and determine the extent of your limitations. If you are not actively receiving treatment for a documented medical condition, the ALJ may need to schedule a consultative examination to determine if the condition has an impact on your ability to perform full-time work.
- Despite your best efforts, your treating physicians have not provided all medical records. You sent out requests for medical records to all your treating sources as soon as your hearing was scheduled, but you have not received responses from all your doctors. You have advised the ALJ of the difficulty in obtaining records, but still think that it is likely that the records will be received in the near future. If the ALJ believes that you will have the ability to obtain the records, and that you made your best efforts to obtain the documentation prior to the hearing, the ALJ may grant you additional time to provide the missing documentation.
- The ALJ discovers an issue that was not identified prior to a hearing that must be resolved prior to issuing a decision. This may be a nonmedical issue that requires further documentation. For example, recent work is identified, and the ALJ needs to determine if this work would disqualify you from receiving continuing disability benefits. The ALJ can ask that additional documentation be provided before your record is closed and a decision is issued.
This is not an exhaustive list of all the possible reasons that a hearing record can be left open, just the most common ones that I have experienced. However, it is always in your best interest to have all of these issues resolved prior to the hearing if possible.
It is likely that the ALJ has spent a substantial time reviewing your file prior to the hearing, and it is usually in your best interest for the ALJ to make a decision as quickly as possible after the hearing closes. If additional evidence needs to be submitted, it is possible that you will not receive the full attention of the ALJ when your file is reviewed at a later time and it will take longer to receive a decision.
There are rare occasions where the ALJ is able to issue a decision the day of the hearing. These are referred to as bench decisions. The ALJ determines during the hearing that your condition entitles you to benefits and issues an oral decision. The ALJ in these situations can read your decision into the record, and a detailed decision is never issued. Normally within 7 to 10 days after receiving a bench decision, you receive a 2 to 3 page summary from the hearing office indicating that a fully-favorable decision was issued on the day of your hearing and you were approved for benefits.
Why was I scheduled for a supplemental hearing?
If an ALJ discovers a new issue after your initial hearing is held, it is possible that a supplemental hearing can be scheduled. These normally are only held if consultative examinations reveal new facts, or the ALJ discovers that an important issue was not resolved at the original hearing. In my experience, supplemental hearings are only required about 2% of the time.
Although supplemental hearings mean that you will experience an additional delay in receiving your decision (since your record cannot be closed until after the supplemental hearing), it also allows you a chance to provide additional testimony and submit new medical documentation. The only thing that is certain when a supplemental hearing is scheduled is that a decision cannot currently be issued.
There are four possible hearing outcomes.
- Fully Favorable Decision: A fully favorable decision is issued when the ALJ has approved you for the entire period of disability that you have requested. This normally means that you have been approved based on the date you last worked, and that you will receive continuing monthly benefits. However, you can also receive a fully favorable decision if you agree to amend your onset date, or you request benefits for only a period of time that you agree that you were unable to perform work. This type of decision is usually 6 to 10 pages long, and provides an explanation of why the ALJ decided that you are entitled to Social Security Disability/SSI benefits.
- Partially Favorable Decision: The ALJ agrees that you are entitled to disability benefits, but does not grant you benefits for the entire period that you requested. A partially favorable decision can mean that the ALJ determined that you became disabled at a later date, or that you were disabled in the past but regained the ability to perform work. A partially favorable decision is the hardest decision to write and usually is the longest type of decision issued. Partially favorable decisions average between 12 to 20 pages. The ALJ must provide the rationale for why you were disabled for the period of time that you are found to be entitled to benefits, and also provide the rationale for why you were not disabled during the period that you were denied benefits.
- Unfavorable Decision: The ALJ determines that you are not entitled to benefits for any of the period that you requested. This decision normally ranges from 10 to 16 pages. The ALJ will provide the full details of why you do not meet the requirements of the Social Security Disability programs. Any medical opinions provided by your treating physicians should be discussed in an unfavorable decision. The ALJ is required to explain why your doctor’s opinion was not accepted, and why your allegations were not credible.
- Dismissal: The ALJ determines that a medical determination of your disability is not necessary. You are not entitled to benefits, and the only written discussion is why the dismissal is appropriate. Normally dismissals are only issued if you fail to attend your scheduled hearing, you filed a late request for a hearing and the ALJ determines that you did not have good cause, or you voluntarily withdrew your request for a hearing.
How long does it take to receive an ALJ Decision?
In Delaware, most ALJ decisions are issued 30-90 days after the administrative record is closed. However the ALJ has as long as they need to issue a decision. The longest that I have had to wait for a client’s decisions is 13 months. Decisions are normally mailed to you and your attorney on the same day, and the attorney is never supposed to be advised of what the decision is until they receive it in the mail.
- Bench decisions and dismissals are the easiest decisions to issue, so they are normally issued within about a week of the hearing.
- Fully favorable decisions are normally issued within 30-45 days of the record being closed. These are the easiest of the written decisions to issue. Since the ALJ is likely accepting your doctors medical opinion and finding you fully-credible, not as much documentation is necessary.
- Partially favorable and unfavorable decisions are the hardest decisions to write. The ALJ is required to provide detailed discussion of why your treating physician’s medical opinions are being disregarded, and why you are not believable. Since it is likely that these decisions will be appealed, the ALJ must make sure that they have followed all the Social Security Administration rules and regulations so that it is unlikely that their decision will be reversed.
Why does it take so long for the decision?
Decisions are not easy to write. Even though about 75% of the decision includes form language, the remaining 25% is focused on the information in your administrative file. The average written part of the administrative file for my cases is about 350 pages. All of the written documentation and hearing testimony must be summarized in the decision.
Even if you are approved for benefits, the ALJ must explain why your documentation supports that conclusion. Each ALJ is expected to decide about 400-600 cases per year. ALJs usually review your file prior to a hearing, hold a hearing and listen to testimony, decide whether you will be approved for benefits, and then issue the written decision. If your case involves unusual factors, legal research may also be required.
Although ALJs have staff that assist in preparing the case file and issuing your decision, it is still a time consuming process. I normally spend a minimum of 8-10 hours preparing every case before an ALJ hearing. In order to issue the recommended number of decisions per year, an ALJ can only spend aboutÂ a day on each claimant. If the ALJ has a full hearing schedule, it does not leave a lot of time to actually issue decisions.
What should I do if I experience a delay in receiving my decision?
The most important advice I can give a client while waiting for a decision, is to be patient. If you are represented by an attorney, you should never communicate directly with the hearing office. The last thing that you want to do is annoy the person that is making a decision on your claim. ALJs are usually very close to their staff, and if the staff complains about you, it is less likely you will be happy with your decision.
I normally do not do anything until after a client has been waiting for 60 or more days for a decision. I receive a monthly report of all my pending cases from my local Office of Disability Adjudication and Review so I am able to determine if any case has been closed and I have not received a decision. If no decision is made in 60 days, I politely ask the ALJ’s assistant if there is any specific issue causing a delay in the decision being issued (for example, the record is not closed). If I discover an issue, I offer assistance in resolving it.
If a decision is still not received within 90 days, and there are no outstanding issues, I send a courtesy letter to the ALJ. I usually make a short argument reminding the ALJ of why I believe my client should be approved, and politely ask if I can provide any additional information to help with the decision process.
I normally warn my clients that it is likely that are going to be denied benefits if they experience a delay of more than 90 days in receiving their decision. Although I hate to annoy ALJs, I usually do become more pushy after 90 days have passed. I will discuss options with my clients and take any additional steps that are required to help obtain a timely decision.
The important thing to remember after the hearing is that hardest part has been completed. You have done everything that you can to establish the severity of your condition, and you have obtained the necessary medical documentation. All you can do after the hearing is wait for the ALJ to take the information that has been provided, process it, and issue a decision.
This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.