This article provides a summary of the various appeals available for someone seeking Social Security Disability benefits. There are five appeals possible, and six if you count the US Supreme Court. Every appeal has a 60 day deadline. If you miss that deadline, you cannot appeal any further on your application. If you miss your appeal deadline, you may be able to file a new application. However, if you went to hearing, and received an Unfavorable Decision, you may be out of luck if your date last insured expired prior to the date of Unfavorable Decision. Even then, you may be able to file another application, and re-open your old application. But for now, let's summarize appeals.
This is the first appeal after an initial claim denial. You must file the request for reconsideration within 60 days of the date of your initial claim denial. When I see a new client, we file the reconsideration on the Social Security Administration website, www.SSA.gov.
The request for reconsideration form is quite straightforward. However, you must also complete a Disability Appeal Report. This questionnaire asks for updated information, including recent medical treatment, work activity, current medications, and changes in your condition, including symptoms and changes in daily activities.
The state agency that determined your initial application reviews the request for reconsideration. Ideally, the agency should seek updated medical records, but this happens only some of the time. We review the claims file with our client to determine which records to update, and whether we can obtain a medical opinion supporting the claim.
In some cases, the state agency may schedule a "consultative examination." A consultative medical examination occurs when the Social Security Administration schedules an appointment for you to see a doctor of its choosing. Many of these examiners are biased toward Social Security, and will almost always find that you are able to do some work activity. However, there are consultative examiners that are objective and provide an independent and thorough report describing your limitations. If you go to a consultative examination, it is critical that you give good effort.
Request for Hearing
The request for hearing is the second appeal of a Social Security disability claim denial. You are requesting a live hearing in front of an Administrative Law Judge. Again, you have 60 days from the date of your reconsideration request denial to file the request for hearing.
As with the initial reconsideration appeal, our office files all requests for hearing online. We also complete the Disability Appeal Report with the request for hearing.
After the request for hearing is filed, your claims file is transferred to the closest Office of Hearings Operations, also known as an "OHO." Because of the case backlog in many hearings offices, you can expect to wait several months, perhaps well over a year for a hearing date. This is changing all the time, and we watch the wait times closely to keep our clients informed.
A claimant can seek an expedited hearing based on dire need. However, the policy on dire need is strict, and requires a compelling case for expediting hearing date.
Another possible way to cut the wait time for a hearing is to seek an "on the record review." This is a request that the claim be approved based on the records in front of the hearings office without a live hearing. These requests are rarely granted, but they do happen occasionally.
The OHO notifies our office when the exhibit file is ready for download, and at the same time sends our client a questionnaire seeking updated information on work activity, if any, medical care, and medications. We also know the case is getting close to hearing when these documents go out. We meet with our client to make sure we are updating all the medical records, and review the file to obtain other evidence, like a witness statement.
When the hearing is scheduled, the OHO sends Claimant a notice of the hearing. The notice states the time and place of hearing, the Administrative Law Judge assigned to hear the case, and the names of any experts retained to provide testimony.
Appeals Council Review
If a Claimant prevails at hearing, they receive a Favorable or Partially Favorable Decision. A loss occurs with an Unfavorable Decision. A Claimant can seek review of an Unfavorable Decision by requesting review with the Appeals Council. You have 60 days from the date of the Unfavorable Decision to file a written request for appeal with the Appeals Council. The Appeals Council reviews the Unfavorable Decision to see if there are any factual or legal errors that could affect the case's outcome. The Appeals Council could determine that a Claimant is disabled and grant benefits, but this is rare. Usually, the best result to hope for is the Appeals Council sending the case back to the OHO with written instructions to re-evaluate evidence, consider new evidence, or resolve inconsistencies in the initial Unfavorable Decision. This is called a "remand."
The Appeals Council can take many months to review a case. We often receive a 25 day notice of the Appeals Council's intent to review a case for our client, and we almost always provide a written argument on why the case should be sent back for another hearing. We also routinely provide the Appeals Council updated medical records.
Federal Court Review
If the Appeals Council refuses to review the case, there are two options. A Claimant can file a new application alleging an onset date beginning the day after the Unfavorable Decision. For a Social Security Disability Insurance claim, this option is available if the Claimant is still insured for disability benefits at the time of the Unfavorable Decision.
Along with a new application, the Claimant can also file a case in federal court. Like all the other appeals, the Claimant has 60 days from the Appeals Council's decision to file the case in court. The case is filed in the US District Court where the Claimant resides. Most of our clients file their cases in the US District Court for Oregon, or the US District Court for Western Washington. Although this is technically a lawsuit, there are no live hearings or trials. A District Court Judge or Magistrate will review written arguments. The Judge or Magistrate may find the Claimant disabled, but the best chance of success is the case being sent back for an additional hearing. Sometimes, the Social Security Administration lawyer will agree that the case should be remanded to the hearings office for another hearing.
Federal Court Appeals
If a Claimant loses at the US District Court level, the next appeal is to the US Circuit Court of Appeals. There are several US Circuit Courts of Appeals in the country, and for Oregon or Washington Claimants, appeals are filed with the Ninth Circuit Court of Appeals.
A Claimant could appeal a US Circuit Court of Appeals decision by seeking review with the to the US Supreme Court, but the US Supreme Court decides which cases it will review, and the vast majority of requests for for review at this level are denied.
How We Help
We help Claimants with the initial request for reconsideration and request for hearing. We take Appeals Council appeals only for existing clients. However, if you are looking for help before the Appeals Council or in federal court, we can find excellent referrals for you. Contact us with your questions. We do this every day.