Appeal a Social Security Disability Denial
Hiring a Social Security attorney is more affordable than almost any other area of law. Social Security disability lawyers only earn a fee if they are successful in winning your case, the fee must be approved by Social Security and in most cases is capped, so that it may be anywhere from 25% of your award to less than 10% of your award of back benefits, depending on how large your award is. You can find out more about attorney’s fees in Social Security cases here. That said, some people are fiercely independent, and want to give it a go on their own. So we have prepared this guide to give you some information on what to expect when you appeal your Social Security disability or SSI denial.
Will I be Denied?
Fewer than one out of three people applying for Social Security disability or Supplemental Security Income (SSI) will be approved for benefits when they apply. Sometimes this can be tied to how disabled you are or how much medical evidence you have to support your claim. Unfortunately, just as often, it depends on who actually looks at your claim, and what the other claims they looked at that day looked like.
The bottom line is, most people who are going to win their disability claims are going to have to appeal. Your odds of winning increase each time you take the time to file an appeal and follow Social Security’s specific procedures for doing so. Appealing to a hearing in front of an Administrative Law Judge is your best chance at winning your claim.
If you have been denied Social Security disability or SSI benefits, you should learn how to appeal. If you give up or file a new claim, chances are you will continue to be denied. While it is always a good idea to consult with a skilled social security lawyer before appealing, here are some of the basics of what you need to know.
The Basics: How to Appeal a Social Security Denial
Most appeals in Social Security cases must be filed within 65 days of the date on the denial letter. Social Security technically allows 60 days to appeal, but it is 60 days from the date you receive the letter, and Social Security assumes that it takes a letter 5 days to reach you. You never want to wait until the last day to file your appeal, but 65 days is usually the absolute deadline.
If your claim has been denied at the initial level, that is, you filed your claim, and this is the first time Social Security has told you that you do not qualify, in most States, your next step is to request “Reconsideration” of your claim.
When you request Reconsideration, you are asking for Social Security to take another look at its decision, and providing any new information you have that might change the government’s decision.
You can file your appeal online at https://secure.ssa.gov/iApplsRe/start?URL=/apps6z/iAppeals/ap001.jsp
Or, if you prefer you can download the “Request for Reconsideration” and “Disability Report-Appeal” to complete by hand. In both cases, this may be a good time to consider talking to a Social Security disability attorney to review your options before going further. The printable forms are available at: https://www.ssa.gov/forms/ssa-561.html
What if my condition has gotten worse?
If your condition has worsened, you should tell Social Security about any changes when you file the appeal. Be Careful – Social Security may use any information about worsening to consider a later onset date <link to article on onset dates> So use caution when indicating your condition has worsened. Ordinarily, you are appealing because you don’t agree with Social Security’s decision from the date you filed, not because some new condition has intervened to make you “truly” disabled.
Make sure you make copies of everything you submit to Social Security and follow up to make sure your documents and appeal were received before the deadline to appeal has passed. These are all steps an attorney can take for you, including confirming that your appeal was received on time, and is well supported by medical evidence.
Statistically, most claims are denied on Reconsideration. As of 2014 (the most recent published data) the percentage of claims awarded at the Reconsideration level is a discouraging 2%
The ALJ Hearing
Because of this, most cases that need to be appealed will end up requiring a Request for a Hearing with an Administrative Law Judge (ALJ).
Like the deadline to request Reconsideration, a Request for a Hearing must be filed within 65 days. Once again, if your case has been denied initially and on Reconsideration, no matter how disabled you believe you are, or how confident you are that if you just get your day in court, you’ll win your case, you should seriously consider discussing your case with a skilled disability law firm. In fact, fees are so low in Social Security cases, that you should stop what you’re doing and research how little it will cost you to get help on your claim before you take another step.
Once you’ve decided to file a Request for Hearing, be prepared to wait. Throughout the country, the backlog to get in front of a judge ranges anywhere from one year to almost three years in some parts of the country. The forms you need to file a Request for Hearing can be found here: https://www.ssa.gov/forms/ha-501.html
In an effort to deal with this impossible wait time, Social Security has started using so-called “national hearing centers” and offering people the option of participating in a hearing by video. While the promise of a faster hearing is attractive, this may be a very important decision. The benefits of sitting down in person for the first time with the judge making the decision on your claim are very significant, and should be considered before giving up. A video hearing does not allow a judge to be in the room with you, to look in your eyes, to judge your demeanor and credibility, and oftentimes a judge that isn’t part of your community, who doesn’t live where you live, or understand your situation may lead them to be detached and unsympathetic. This is your day in court. You’ve probably waited a long time for it, why give it up just to make life easier for the government?
Appeals beyond the ALJ Hearing
If you attend your Social Security hearing and the Administrative Law Judge denies your claim – your receive an Unfavorable Decision, you still have one appeal left with the government. You can file a Request for Review with the Appeals Council. (The forms can be found here: https://www.ssa.gov/appeals/appeals_process.html) .This is often the appeal of last resort, and the numbers are not great. The Appeals Council almost always “declines review” that means they find nothing in the decision of the ALJ to warrant sending the case back or awarding benefits. Cases at the Appeals Council are usually decided strictly by briefs, usually written by appeals lawyers who understand the specific legal errors ALJ’s make to argue the case at the Appeals Council. If the Appeals Council grants review, the result is usually to send the case back to the judge for another hearing rather than an award of benefits.
Finally, if you have struck out at the initial, Reconsideration, hearing and Appeals Council levels you have the option to file a lawsuit in Federal Court, essentially suing the government to try to get your benefits granted. This is an incredibly hard process and there are very few Social Security attorneys who even practice in the federal courts. There are even fewer who will take on a case that they did not handle at the hearing level. This is a very tough time to find help because the attorney is unable to submit new evidence to the court, and cannot reargue the case. Instead he or she is limited to finding legal errors that support the conclusion that the judge’s decision was not “supported by substantial evidence” which means, even if a court would decide the case differently, as long as there is some reasonable support for the decision, the ALJ’s Unfavorable Decision will stand. You are always better off getting a lawyer you get along with involved in your case long before you get to this step.