Updated: Sep 3, 2020
You've been waiting around 3 years since you filed your disability case, and you're almost to the finish line.
Now, suddenly you receive a form waiver from the Administrative Law Judge at the Office of Hearing Operations in the Social Security Administration asking you to waive "Timely Written Notice of Hearing." Should you sign it?
Why after all this time is Social Security now wanting to rush you? This hearing is likely one of the most important events in your life and certainly the most important in your SSDI or SSI disability case.
The answer is simple: especially with COVID-19, Social Security has been forced to shut down many of their offices with their employees working from home. As a result, many hearings in March and April were canceled and this has added to the already enormous backlog. They need to get these hearings on their calendars to clear the backlog and part of that is getting you to waive advanced notice of your hearing.
What does that mean? Normally SSA is required to give you at LEAST 75 days notice of your hearing, though I have seen them usually give more than 90 days notice in most cases. In order to schedule the hearings faster, they need to give less advanced notice. So why wouldn't you allow them to do that? It will get you a hearing sooner, and thereby a decision sooner and possibly you'll get your disability benefits sooner as well! So as an experienced disability attorney, I advise my clients to waive the notice and get that hearing scheduled!
There is something important to remember when waiving the notice: you will need to get your medical records. Most claimants are surprised to learn that SSA rarely obtains your updated records at the hearing level. When I open up clients' exhibit files, I often find that they are missing the past 2 years' worth of records. These have to be requested from your doctors and doctors are allowed 30 days to respond to your request. Often, they are delinquent and do not respond. It can take some time to get records, so you may end up going to the hearing without a complete record. Luckily, as long as you notify the judge, within 5 business days of the hearing, that you intend to submit those records when they come in, the judge is required to accept them. Often, they will give you extra time after the hearing to get them submitted. It is best to have an attorney at the hearing stage so that they can be sure to get your records in time.
Fortunately, in Arizona, doctors are no longer allowed to charge for your records if you have a disability case pending (See A.R.S. 12-2295). This was the result of the effort of disability Attorney Kathryn Dicus, myself and other colleagues to sway the Arizona legislature to pass this change of law. A happy side effect of this, is that now doctors seem to be getting records to me faster, likely because they no longer can send invoices and haggle over how much they can charge.
In addition, in some cases you will need a medical expert to testify. To do this, you must request SSA hire and schedule one to appear and testify. This request needs to come in early or they won't be able to get an expert.
So if you waive 75 days' notice, when will your hearing be? In my experience, the hearing is usually held around 60 days or more from the time they schedule it, but this isn't guaranteed and that doesn't mean that they will schedule your hearing as soon as you sign the waiver. Still, you should get your hearing sooner.