How briefs can help you win more cases
As a former OHO adjudicator and ALJ decision writer, I know most Social Security Disability (SSD) adjudicators appreciate briefs from SSD representatives because it makes their job easier. A proper Social Security brief helps an SSD adjudicator make an informed decision and acts as a guide to present the right evidence.
How to use strategically use specific briefs
Because our work is based on a production-paced environment, it's worth the effort to ensure briefs are written effectively. Let’s review a few types of briefs and how to use them strategically.
On-The-Record Request (OTR)
An OTR is submitted prior to an ALJ hearing at the Office of Hearings Operations (OHO). It is typically 2-3 pages (no more than 5) and focuses on a listing-level impairment and/or dire situation, such as eviction. This request asks the ALJ to make a decision based on the record alone, prior to the hearing. This can be effective when the brief highlights objective evidence that supports the alleged disabling impairment(s). In case of a dire situation, attach supporting evidence.
Tip: Use the OTR sparingly and strategically. If overused, it will begin to undermine your credibility!
A prehearing brief is used to introduce the ALJ to all of the evidence in the record. It's a more extensive brief, spanning 3-5 pages (sometimes longer, if the file is a large VA record). This brief will review all severe impairments and supporting evidence; it may also include a listing-level argument, as well as a step 5 argument. All 5 steps of the Sequential Evaluation will be addressed, and, possibly, substantial gainful activity after the alleged onset date, past relevant work, and drug and alcohol abuse.
Tip: Do not ignore problem evidence. Address it persuasively, using language such as “although,” “however,” and “because.”
A post brief provides an excellent opportunity to state what you may not have been able to say during the hearing. This brief emphasizes the points that helped a claimant at the hearing. For example, if a VE testified that there “aren’t any jobs” based on a particular hypothetical, a post-hearing brief allows you to emphasize evidence that supports this hypothetical.
In the case that an ALJ has allowed the record to remain open so more evidence can be submitted, use a post-hearing brief to summarize the new evidence (after it has been submitted).
Tip: Do not submit a post-hearing brief to emphasize the entire record. Use this type of brief to target specific points addressed at the hearing or provided as part of the new evidence.
Appeals Council Brief
Draft an Appeals Council brief in order to get another review in cases where your client was found not disabled, and the ALJ made an error that requires an additional review by the Appeals Council.
Some typical errors include:
An incorrect residual functional capacity: the claimant had physical and mental impairments, yet the residual functional capacity has only physical functional limitations
The VE testified the claimant had transferable skills to a job that is clearly precluded by the residual functional capacity
The claimant has a borderline age case that was applied incorrectly or not at all
Tip: It is difficult to get the Appeals Council to review an ALJ decision. Use your time, effort, and money carefully.
District Court Brief
District Court briefs have proven to be effective with about a 50/50 chance of being remanded back to the Social Security Administration (SSA). This brief focuses on errors and policy that was applied incorrectly. However, the difference with a district and circuit court brief than an Appeals Council brief is that you work with the Office of General Council with the SSA; it includes more case law and functions in a different format. A judge outside of the SSA will make the decision. Nonetheless, the basic concepts of using objective evidence and supporting your argument remain the same.
Tip: This process is more expensive than filing SSA level briefs; however, there is a better chance of remand with this brief than at the Appeals Council level.