If you’ve read any of our other posts or follow us on social media, you probably know that approximately two-thirds of Social Security Disability applications are denied.
No wonder we spend so much time talking about appeals.
Our clients always have questions about the appeals process, what happens at each step, and where the opportunity to appeal ends. Some of them have already been denied, maybe even more than once. We meet each one whether they are and guide them through the rest of the process, maximizing the opportunities we have left to be awarded benefits.
We spend a lot of time getting initial applications ready for submission on behalf of our clients. After an initial interview, a member of our staff will follow up with a detailed list of questions about your medical condition, the treatment you’ve had, and your work history. We will track down any missing information and ensure your application is as thorough as possible before we submit it.
The initial application then goes through a five-step sequential process. Each step centers around a different question about your financial activity, medical condition or work history. Here’s a brief rundown of the steps:
- Step 1: Are you earning enough money from work activities to be considered engaged in substantial gainful activity?
- Step 2: Have you been diagnosed with a “severe impairment”?
- Step 3: Does your condition meet or exceed a listing of medical criteria in the SSA’s Listing of Impairments, also called the Blue Book?
- Step 4: Based on your residual functional capacity assessment, can you do any past relevant work?
- Step 5: Can you do any other work?
You can be found disabled or not disabled at multiple points during the evaluation. For example, if you’re found to be making more money than is allowed — indicating that you’re working enough to be engaged in SGA — you are ruled to be not disabled right off the bat.
As your application goes through these steps, your DDS case analyst may have questions about information contained in the application itself or evidence we’ve submitted with it. We will have already instructed the SSA to communicate directly with us on your behalf, but if you do get a call, you can direct the caller to get in touch with us.
If your initial application is denied, you have the right to a reconsideration of your case. The request must be filed within 60 days of the decision date.
When we file a reconsideration for a client, a member of Joyce & Bary Law’s disability claims team will complete the paperwork and submit any additional evidence we have obtained since we filed the initial application.
For example, you probably saw your doctor while your application was being reviewed. Maybe you tried a new medication or other treatment, or perhaps you’ve been diagnosed with an additional condition. You may have experienced differences in the daily activities you’re able to perform, or your doctor may have imposed additional limitations on work-related activities. All those new records will go along with your request for reconsideration.
When your reconsideration is submitted, your file will go to your state’s Disability Determination Services (DDS) office, where it will be reviewed by a claims analyst who was not involved in the initial application evaluation.
Once the DDS analyst has been assigned, we will contact them to ensure they have everything they need to make a determination and to reiterate that they can contact us — not you — if they are missing information or have other questions.
Request for Hearing by an Administrative Law Judge
If your application is denied after reconsideration, we will request a hearing in front of an administrative law judge. Again, the deadline to request a hearing is 60 days.
An ALJ is a judge whose role is to hear Social Security cases. The only other people who will participate in the hearing are you, your attorney, probably a hearing assistant, and any witnesses you or SSA has called.
Even though it might not feel that way, the ALJ hearing is technically non-adversarial. That means that Social Security doesn’t have an attorney there making its case. It is not open to the public, and it will not occur in a courtroom. If you have an in-person hearing, it will likely be held in a conference room at your local hearing office. It may also be conducted by video or phone.
The ALJ will open the hearing, perhaps reviewing some of the basic facts of your case. The judge might ask you questions about your medical condition, employment, limitations, or any of the evidence we have submitted. We give these tips to our clients when preparing for the hearing:
- Be honest. Even if you think an answer might hurt your case, do not lie. Do not exaggerate your symptoms or limitations.
- Answer only the questions asked by the ALJ. Do not elaborate or add information the ALJ hasn’t asked for.
- Use real-life examples to illustrate your story. For example, if you used to walk your dog every morning and can’t do it anymore, tell the judge.
- Don’t spend time talking about points that are established by your medical record. The ALJ knows your diagnosis and has your most up-to-date records. The ALJ is more interested in your symptoms and how your condition affects your ability to work.
- Be able to answer questions about what you can and can’t do. For example, you could be asked how much you can lift, how long you can sit in one place, or how long you can stand.
- Don’t worry if you forget something or get mixed up while talking to the ALJ. You’ll have a chance to address it.
After the ALJ has asked questions, your attorney will have an opportunity to speak on your behalf and ask you additional questions, giving you the opportunity to add more information or clarify anything you said to the ALJ. You will know what most of these questions are ahead of time.
If there are other witnesses present, they will also have the opportunity to offer testimony, and your attorney will have the opportunity to cross-examine any witnesses who appear on behalf of the SSA.
It’s unlikely that you will receive a decision that day. On the rare occasion that a bench (same-day) decision is issued, you still have to wait until the written decision arrives in the mail to act or receive benefits.
If you are not successful at the hearing stage, we will help you appeal your case to the Appeals Council. We will file the request for review along with any additional evidence.
The Appeals Council doesn’t hold a hearing, but we will have the opportunity to submit a written argument for consideration.
If the Appeals Council agrees with the decision of the ALJ, it will not review your case. If the AC does review your case, it has the option of deciding your case itself or returning it to the ALJ for review.
Federal District Court
If the Appeals Council decides not to review your case or you disagree with its decision, you have the right to file a civil suit in federal district court asking for a review of the Social Security Administration’s final decision. This is your final opportunity to appeal.
We review the decisions from the ALJ and/or Appeals Council very carefully before choosing to take a case to federal court. We’re looking for the same things the judge will be looking for — mistakes made by the ALJ or a lack of evidence for the ALJ’s decision.
There are three possible outcomes of a case taken to federal court:
- The judge upholds the decision made by the Appeals Council. This is the end of the line for the case.
- The judge remands the case for additional review by SSA
- The judge grants disability benefits to the claimant
Can Joyce & Bary Law assist with my appeal?
We work with clients at all phases of the administrative appeals process. If you’ve been denied, we would be happy to review your case and tell you if we can help. And if you haven’t applied yet, contact us today, and we can help you determine the best way to proceed.