What is a “Remand”
A remand happens when a higher court or a reviewing office in an agency sends a case back to the original Judge or court that heard the case. This article concerns Social Security Disability remands. The Social Security Administration Appeals Council can remand a case. So can a Federal District or US Circuit Court of Appeals.
How Remands Work from the Appeals Council
There are several levels of appeal in a Social Security Disability claim.
If an initial claim application is denied, you can request your first appeal with a Request for Reconsideration.
If the reconsideration request is denied, you can request a hearing.
If, after appearing at a hearing in front of an Administrative Law Judge, you receive an Unfavorable Decision, you can seek review with the Social Security Administration Appeals Council. Let’s focus on the Appeals Council review.
The Appeals Council is an office within the Office of Hearings Operations for the Social Security Administration. The in Falls Church, Virginia. There are several “branches” within the Appeals Council. This is because different federal case law applies depending on where the Claimant lives, and the Judges in a certain branch at the Appeals Council will apply the correct case law.
You must seek review with the Appeals Council within 60 days of the Unfavorable Decision. The Appeals Council reviews the Unfavorable Decision reviews the Unfavorable Decision to see if it is legally correct, and that it is supported by “substantial evidence.”
Potential legal errors may concern how the Administrative Law Judge conducted the hearing, and whether the Judge applied the right legal standard when evaluating evidence like medical opinions. There are case law decisions that tell the Judge’s how to evaluate certain evidence, especially medical opinions. There are also policies and case law decisions that discuss how a judge can conduct a hearing.
“Substantial evidence” means that the Administrative Law Judge’s decision must be based on evidence that exists in the file. Sometimes, the Administrative Law Judge base their decision on an inaccurate understanding of the evidence. There also has to be a logical connection between evidence the Judge relies upon to make a certain conclusion.
If the Appeals Council feels that the Administrative Law Judge ignored the law or certain evidence, the case is remanded or returned to the same Administrative Law Judge. The Appeals Council will give the hearings Judge instructions on how to proceed with the remand hearing. There are limits on how many times one Judge can hear a case at the hearings level.
One common issue the Appeals Council considers is whether the Administrative Law Judge properly evaluated a medical opinion. When a Claimant provides the Administrative Law Judge a medical opinion from a treating source, that opinion generally carries more weight because the treating physician has more experience with the Claimant and is in a better position to evaluate the Claimant’s limitations.
Another common issue the Appeals Council considers is the Administrative Law Judge’s finding that a Claimant was not credible in describing her limitations. In Oregon and Washington, the case law requires that the Administrative Law Judge provide detailed reasoning when concluding that a Claimant is not credible in describing his or her limitations.
Other common issues surround the vocational expert testimony. At almost every Social Security Disability hearing, a Vocational Expert will testify about the Claimant’s past work, but also answer hypothetical questions regarding a hypothetical Claimant’s ability to perform certain work activity. The questions are not really about a hypothetical person but are different possible conclusions a Judge may reach about the actual Claimant’s work limitations. These hypothetical questions are based on opinions in the exhibit file, the Claimant’s testimony, and medical records. Sometimes, the Judge will not accurately reflect the Claimant’s physical or mental limitations as shown in the exhibits when posing hypothetical questions. When this happens, the Appeals Council may send the case back for another hearing.
Depending on the evidence, and the issues before the Administrative Law Judge, a Claimant can continue to submit evidence to the Appeals Council. For example, if a Claimant continues to be insured for disability benefits while the appeal is pending, the Claimant can provide updated medical records. Sometimes, the Appeals Council considers these records when sending the case back for an additional hearing because it shows that the Claimant has ongoing limitations.
Often, a remand hearing differs from the original hearing. This is because the Appeals Council may have instructed the Administrative Law Judge on what issues to address at the hearing.
The Appeals Council may grant benefits at the Appeals Council level, but this does not happen often.
Federal Court Remands
If the Appeals Council refuses to review an Unfavorable Decision, the Claimant can seek review with the US District Court. The Claimant must file their federal lawsuit within 60 days of the Appeal Council’s notice refusing to review the Unfavorable Decision.
A Claimant can also reapply for benefits after the Appeals Council refuses to review an Unfavorable Decision. When working with Claimants denied Appeals Council Review, we advise our clients to apply again for Social Security Disability and allege that their disability began the day after their hearing. This is because the Social Security Administration has not yet considered this period of disability.
Like the Appeals Council, the US District Court Judge reviews the case to see whether the Administrative Law Judge made any legal errors or failed to properly consider the evidence. The Federal Court Judge can also grant benefits, but often sends the case back to the Appeals Council. The Appeals Council will issue its own “remand order” telling the Administrative Law Judge how to review the case at hearing.
If a US District Court Judge rules against the Claimant, the Claimant can appeal to the United States Circuit Court of Appeals for the Circuit in which they live. For people that live in Oregon and Washington, appeals from the US District Court go to the US Ninth Circuit Court of Appeals. If a Claimant is unsuccessful in front of the US Circuit Court of Appeals, the Claimant seek review with the United States Supreme Court. However, the United States Supreme Court agrees to review only a small percentage of the cases it receives.
Unfortunately, when a case is sent back from the Appeals Council, it will still take quite a while to reschedule the hearing. Federal Court appeals take even longer. We have seen cases take up to five years before we finally received a Fully Favorable Decision.
How We Handle Appeals Council and Federal Court Cases
Our office handles Social Security Disability claims after an initial denial or a denial of a Request for Reconsideration. If we do not prevail at hearing, we review the case to determine whether there are issues that can be argued to the Appeals Council.
If the Appeals Council denies review, we work with attorneys that handle only federal court appeals of Social Security Disability claims. If our federal court attorney partners are successful in getting a case remanded, we take over, and go to hearing with our client.
If you have questions about where you stand with a Social Security Disability claim, contact us, or check out our free e book.