On-the-record (OTR) decisions are hearing-level disability decisions issued from the written file, with no oral hearing, and the rules for them, 20 CFR 404.942 and 404.948(a), allow them only when fully favorable. A representative asks in writing, explaining why the evidence supports every issue, and an attorney advisor or administrative law judge (ALJ) reviews the file, as the review rules describe.
What is an on-the-record decision in a disability appeal?
An OTR decision is a decision on your request for hearing that is made from the evidence already in the record, without holding an oral hearing. Under 20 CFR 404.948(a), if the evidence in the hearing record supports a finding in favor of you and all the parties on every issue, the administrative law judge may issue a hearing decision based on a preponderance of the evidence without holding an oral hearing.
Two limits are built into that sentence. The record has to support you on every issue, not most of them. And the standard is the same preponderance of the evidence the judge would apply after a hearing. An OTR decision is not a lower bar or a separate kind of claim. It is the same decision, made earlier, because nothing is left for a hearing to resolve.
The notice of an OTR decision must state that you have the right to an oral hearing and to examine the evidence the judge relied on. The hearing request is not erased from your rights just because a decision came first.
A different paragraph of the same regulation, 404.948(b), lets a judge decide a case on the record when all parties say in writing that they do not want to appear. That paragraph does not carry the fully favorable condition, and it involves giving up your appearance, so it is a separate choice from asking for an OTR decision. We explain the hearing itself on our disability hearings page.
How a representative requests an on-the-record disability decision
A representative requests an OTR decision with a brief or written statement explaining why the evidence in the record supports a fully favorable decision. SSA's hearings manual addresses these submissions in HALLEX I-2-8-13.
Under that section, the submission is entirely voluntary. It may be made at any time from the filing of the request for hearing through any post-hearing time limit the ALJ sets, and SSA's Office of Hearings Operations encourages representatives to submit it electronically. An ALJ may not order anyone to submit one. The ALJ is also not required to use the language or rationale in the brief, or to explain why it was not used.
The request only works if the record is complete. Asking for a decision on the record before the treating records and opinions are in the file is a little like handing a lender a loan application before the pay stubs arrive. The application can be filed, but there is nothing yet for the lender to measure it against. That is why the gaps in the medical record need to be closed before an OTR request, with the evidence tied to a specific point in the five-step analysis a judge uses: a listing the records meet, or a residual functional capacity (RFC), meaning the most you can still do, that rules out past work and other work. Our guide to residual functional capacity covers how that assessment is built.
New evidence can also open the door to prehearing review. Under 20 CFR 404.942(b), an attorney advisor may conduct prehearing proceedings in a disability claim when new and material evidence is submitted, when there is an indication that more evidence is available, when the law or regulations change, or when there is an error in the file or some other indication that a fully favorable decision may be issued.
Attorney advisor and ALJ review of an OTR disability request
Two kinds of reviewers can act on the record before a hearing: an attorney advisor under 20 CFR 404.942 and the ALJ under 404.948. The attorney advisor can decide only when the decision is fully favorable; the ALJ can also decide on the record when every party waives the right to appear.
Attorney advisors. Under 20 CFR 404.942, after a hearing is requested but before it is held, an attorney advisor may conduct prehearing proceedings. The attorney advisor may request more evidence, including medical evidence, and may schedule a conference with the parties to clarify the record. If a decision fully favorable to you and all the other parties can be made on the preponderance of the evidence, the attorney advisor may issue it instead of an ALJ. The SSI version of this rule is 20 CFR 416.1442.
The ALJ and hearing office. SSA's hearings manual builds OTR screening into case preparation. In HALLEX I-2-1-5, the prehearing case workup includes noting whether the case may be appropriate for a decision on the record. For critical cases, HALLEX I-2-1-40 directs hearing office management to assign the case immediately for OTR review, and to send it to a decision writer for expedited writing if an OTR decision is possible. The ALJ then decides under the 404.948(a) standard described above.
Neither reviewer is grading the representative's brief. Each one reads the record and asks whether it supports a fully favorable finding on every issue. The brief is a guide to the record, not a substitute for it.
What happens to your disability appeal if an OTR request is not granted?
The request for hearing stays in place and your claim moves toward a hearing before an ALJ. A declined OTR request is not a decision on your claim. Under 20 CFR 404.942 and 404.948(a), an attorney advisor or judge issues this kind of on-the-record decision only when it is fully favorable, so a request that is not granted simply leaves the case on the hearing track.
The regulation sets the handoff. Under 20 CFR 404.942(a), if the attorney advisor's prehearing proceedings are not finished by the date of the hearing, the case is sent to the ALJ, unless a fully favorable decision is already in process or all parties agree in writing to delay the hearing. For critical cases, HALLEX I-2-1-40 says that when an OTR decision is not appropriate, staff move to expedite prehearing development and schedule the hearing.
The wait can feel like a no. It is not. The same evidence goes before the judge at the hearing, with your testimony added, and anything that comes into the file in the meantime can support a renewed request. Our guide on what to expect at an ALJ hearing covers the day itself.
What the OTR decision notice says about your hearing rights
An OTR decision comes with a written notice, and that notice keeps a path back to a hearing open. Under 404.948(a), a judge's OTR notice states that you have the right to an oral hearing and to examine the evidence the decision was based on.
An attorney advisor's decision works the same way through a reinstatement request. Under 20 CFR 404.942(d), SSA mails written notice to all parties at their last known addresses. The notice states the basis for the decision and tells the parties they may ask an ALJ to reinstate the request for hearing. That request must be in writing and sent within 60 days of the date you receive the notice, and an ALJ can extend the deadline for good cause. If the request is timely, the ALJ reinstates the request for hearing and offers all parties a hearing.
If no party asks for reinstatement, the attorney advisor's decision is binding, subject to the review and revision rules discussed in the questions below. Keep the notice with your records. It states the basis for the decision, and that statement of basis is what any later review starts from.
Questions People Ask About This
Can I ask for an on-the-record decision without a representative?
Yes. HALLEX I-2-8-13 says unrepresented claimants may submit a brief or written statement on their own or with the help of an advocate. The same rules apply to the submission as when a representative files it: it is voluntary, it can be filed from the request for hearing through any post-hearing deadline the judge sets, and the judge is not bound by its wording.
Can the Appeals Council change an attorney advisor's decision on its own?
It can. Under 20 CFR 404.942, the Appeals Council may review an attorney advisor's decision on its own motion within 60 days after the date of the decision. The decision is binding unless a party timely asks to reinstate the hearing request, the Appeals Council reviews it on its own motion, or it is revised under the reopening rules at 20 CFR 404.987.
Does the attorney advisor rule apply to SSI disability claims too?
Yes. The SSI program has its own copy of the rule at 20 CFR 416.1442, titled prehearing proceedings and decisions by attorney advisors. It lets an attorney advisor conduct prehearing proceedings after a hearing is requested but before it is held, on the same fully favorable terms that 20 CFR 404.942 sets for Social Security Disability Insurance claims.
Sources
- 20 CFR 404.948, Deciding a case without an oral hearing (eCFR)
- 20 CFR 404.942, Prehearing proceedings and decisions by attorney advisors (eCFR)
- 20 CFR 416.1442, Prehearing proceedings and decisions by attorney advisors, SSI (eCFR)
- HALLEX I-2-8-13, Brief or Written Statement in Support of a Fully Favorable Decision
- HALLEX I-2-1-5, Conducting Prehearing Case Analysis and Workup
- HALLEX I-2-1-40, Critical Case Procedures