Social Security is going to try something new in its never-ending pursuit of reducing the backlog of disability cases that are waiting to be scheduled before an Administrative Law Judge (ALJ). Despite the fact it is encouraging to see Social Security try new things to reduce the more than 1.1 million disability case backlog, there are definitely questions as to whether the agency’s new pre-hearing review protocol will put a dent in the backlog. Wait times across the country for a disability hearing are averaging well over a year, in some locations it is a lot closer to two years.
The main problem with the new pre-hearing review is that the process of the review allows for the same agency that recently denied a disability claim to conduct the review. According to the new rules, Disability Determination Services, which will likely be conducting most of the pre-hearing reviews may be given a bit more leeway to approve cases by considering cases “based on a preponderance of the evidence,” rather that stick to Social Security’s stringent listings. We shall see if this new pre-hearing review system works well enough to do what it is intended to do.
Pre-hearing Case Review By Other Component
- 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 pre-hearing 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 pre-hearing case review is pending, the ALJ retains jurisdiction of the claim and will not dismiss the request for hearing.
- When an ALJ May Refer a Case for Pre-hearing Case Review
As set forth in 20 CFR 404.941 and 416.1441, an ALJ may refer a case for a pre-hearing 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 pre-hearing case review in which application of the criteria may result in a fully or partially favorable decision.
- When to Schedule a Hearing After a Case Is Sent for Pre-hearing Review
The hearing office will retain claims sent for a pre-hearing review in the Master Docket by date of receipt. When a claim sent for a pre-hearing review is ready to be scheduled for a hearing, the ALJ may not delay the scheduling of a hearing unless all parties to the hearing agree to continue the review and delay the hearing. See 20 CFR 404.941 and 416.1441. If all parties agree to a delay, the ALJ will ask the parties to indicate so in writing. The ALJ will then associate the writing(s) with the claim(s) file.
If a party to the hearing objects to a delay in scheduling the hearing, the ALJ will schedule the hearing. However, when administratively efficient to do so, the pre-hearing review may continue during the time between the date the hearing is scheduled and the date of the scheduled hearing. If the reviewing component cannot complete the pre-hearing case review before the scheduled date of the hearing, the component must return the case to the ALJ for a hearing unless the component is preparing a favorable revised determination and all parties to the hearing provide written consent for the ALJ to delay the hearing.
