The Social Security Disability Appeals Process: A Summary

Joe Di Bartolomeo
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Joe Di Bartolomeo is a top rated personal injury lawyer helping Oregon and Washington families

This article provides a brief summary on the different levels of appeal with a Social Security Disability application. There are many levels of appeal, and each is unique. However, common to all appeals is a time limit. You must take some action within 60 days of the date of your claim denial. If you do not take the appropriate action within 60 days, you lose your rights to appeal the disability denial. This can be critical depending upon when you were last insured for benefits.

Reconsideration

This is the first appeal after your 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. There is an icon that will allow you to appeal a disability denial.

The actual request for reconsideration form is quite straightforward. However, you will also be asked to 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 will review the request for reconsideration. Ideally, the agency should seek updated medical records, but it is our experience that this happens only some of the time. We believe that it is up to you to obtain updated medical records and provide those to the state agency.

In some cases, the state agency may ask that you see a medical doctor or other medical professional for what is called a "consultative examination." In many cases, these examiners are biased toward Social Security, and will almost always find that you are able to do some work activity. However, there are quite a few consultative examiners that are truly objective, and are interested in providing a truly independent and thorough report describing your limitations. If you go to a consultative examination, it is important that you give good effort. 

Request for Hearing

The request for hearing is the second appeal of a Social Security disability claim. You are actually requesting a live hearing in front of then Administrative Law Judge.  Again, you have 60 days from the date of your claim denial to file the request for hearing.

As with the initial reconsideration appeal, our office is required to file 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 is transferred to the closest Office of Disability Adjudication and Review, also known as "ODAR." We call these the hearings offices.  Because of the backlog of cases in many hearings office is, there is a significant wait time of one, maybe two years until a hearing date is scheduled.  However, the ODAR offices have been working very hard to reduce the wait time for a hearing date. Thus, the wait times are always changing, and we track these wait times and update our clients periodically.

A claimant can seek an expedited hearing based on dire need. However, the policy regarding dire need is strict, and requires a compelling case for expediting hearing date.

Another possible way of cutting 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 the need for hearing. These requests are also rarely granted, but they do occur from time to time.

The ODAR notifies our office when the exhibit file is ready for download. We also know that a cases coming close to hearing when the ODAR sends a questionnaire asking our client update his or her medical care and job history.

When the hearing is scheduled, the Claimant will receive a notice of the hearing. The notice will state the time and place for the hearing, the Administrative Law Judge assigned to hear the case, and the names of any experts retained as independent contractors to provide testimony.

Appeals Council Review

If a Claimant receives an Unfavorable Decision after the hearing, he or she can appeal that decision by filing a request for review with the Appeals Council. As with all other appeals, you have 60 days from the date of the Unfavorable Decision to file a written request for appeal.

The Appeals Council can take close to two years to review a case. We will often receive a 25 day notice of the Appeals Council's intent to review a case. We usually provide a written argument, and in many cases, updated medical records.

Until recently, a Claimant could file a second application for disability benefits while the case was before the Appeals Council.  However, a recent policy change generally prohibits these applications.

Federal Court Review

The Appeals Council issues a Notice of Appeals Council Action. If the Appeals Council refuses to review the case, the Claimant has 60 days from the date of the decision to file a civil complaint in the US District Court in the District in which that Claimant resides. At this stage, the cases reviewed by a Federal Court Judge or a US Magistrate.

In some cases, the Federal Judge or magistrate may order that the case be sent back to the hearings office for an additional hearing, or may find that the Claimant is in fact disabled. Sometimes, the US Attorney will agree that the case should be remanded or sent back for another hearing.

In addition to a Federal Court appeal, a Claimant can file a second application, alleging the onset of disability beginning on the date following the Unfavorable Decision issued by the ALJ at the hearings level.

Federal Court Appeals

Again, if a Claimant does not prevail at the Federal Court level, he or she may appeal 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 9th Circuit Court of Appeals.

It is possible to appeal from the US Circuit Court of Appeals 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.

If you have a question about a Social Security Disability appeal, call us at 503-325-8600. We handle these appeals every day.