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Disability appeals

The appeals process

By After an unfavorable decision, Disability appeals

The Appeal Process in Social Security Disability

There are four levels of administrative adjudication of Social Security claims. They are:

(1) The initial determination,
(2) Reconsideration determination,
(3) Hearing before an administrative law judge, and
(4) Review by the Appeals Council.

After this, a case may be filed in federal court.

The time limit for all Social Security disability appeals but one is 60 days from the date of receipt of a decision. Because there is a strong presumption that decisions are received five days from the date on the face of the decision, unless there is evidence to the contrary, the effective time limit is 65 days from the date of the decision.

The only exception to the 65-day effective time limit for appeal applies to appealing an ALJ denial to the Appeals Council after there has been a federal court remand. The time limit is 30 days for these appeals.

When the period for requesting the next appellate step ends on a Saturday, Sunday, legal holiday, or any other day of which all or part is a non-workday for federal employees by statute or Executive Order, the period is extended to include the next full workday. 20 C.F.R. §§ 404.3(b), 416.120(d).

The Social Security Administration (SSA) treats an appeal as filed on the day it receives it. However, SSA will use the date a “request or notice is mailed to us by the U.S. mail, if using the date we receive it would result in the loss or lessening of rights. The date shown by a U.S. postmark will be used as the date of mailing. If the postmark is unreadable, or there is no postmark, we will consider other evidence of when you mailed it to us.” 20 C.F.R. § 404.614(b)(2).

Disability Service Improvement

If you live in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, or Connecticut, the administrative appeal process changed on August 1, 2006 under the program named Disability Service Improvement (DSI), which was implemented by regulations in a new part of 20 C.F.R., Part 405. Although the original plan was to gradually extend DSI to the rest of the country, it now appears that only certain aspects of DSI will be made applicable to the rest of the United States.

DSI is designed as an experiment to see if SSA can speed up disability determination at all levels including the initial determination. Based on a predictive model, some cases are automatically referred from the field office to a state agency Quick Disability Determination unit with the goal of making a favorable determination within 20 days. 20 C.F.R. § 405.105. For all initial determinations, not only those referred to the Quick Disability Determination units, SSA will require state agencies to adopt a standard decision-writing format that “will explain in clear and understandable language the specific reasons for and the effect of the initial determination.” 20 C.F.R. § 405.115.

DSI initially replaced the reconsideration step with review by a federal reviewing official; but because of budgetary issues and long processing times, sending new cases to federal reviewing officials was suspended in early 2008, reverting to the process that was in effect in these states before DSI. Cases already assigned to federal reviewing officials were to be processed by them. It is unlikely that any new cases will be assigned to a federal reviewing official in the future.

Some DSI administrative law judge (ALJ) hearing procedures are more formal with more mandatory time limits than under current practice. See 20 C.F.R. §§ 405.301 ff.

Under DSI, the Appeals Council is replaced by a Decision Review Board, to which a claimant can appeal only an ALJ dismissal order (after requesting the ALJ to vacate the dismissal). 20 C.F.R. § 405.427. Otherwise the Decision Review Board deals only with own motion review of both denial and favorable decisions based on a statistical claimant profile. You will be notified in the notice of an ALJ decision if your case has been selected for review by the Decision Review Board. 20 C.F.R. § 405.371. If the Decision Review Board does not act within 90 days, the ALJ decision becomes final and may be appealed to federal court. 20 C.F.R. §§ 405.415 and 405.420.

Claimant appeals of ALJ denial decisions, unless the Decision Review Board takes jurisdiction, go directly to federal court. 20 C.F.R. § 405.501.

Initial and Reconsideration Determinations

Although a Social Security disability claim (but not an SSI disability claim) can be completed on the Internet at www.socialsecurity.gov/applyfordisability/ , most claimants initiate their claims by telephoning an SSA teleservice center at SSA’s toll-free number, 1-800-772-1213. Teleservice center staff will make an appointment for the claimant with an SSA representative from a local office.

If you prefer, an appointment can be made to go to a local Social Security office to complete an application in person, though most make a telephone appointment for an SSA claims representative to call back at an appointed hour. During the appointment, you will be asked basic information which will be entered into a computer application form that will be printed and, if it is a telephone interview, will be mailed to the claimant for signature, along with other forms to be completed and signed. An application for benefits is one of the few forms in a disability case that may not be signed by a lawyer on your behalf, unless that lawyer is appointed to do so by a court. See 20 C.F.R. §§ 404.612 and 404.613.

The prohibition on a lawyer signing an application for benefits on your behalf includes a prohibition against a lawyer “electronically signing” an application that is submitted over the Internet, although a lawyer may assist in filing an application. See https://secure.ssa.gov/apps6z/ISBA/main.html.

At the initial and reconsideration levels the SSA does not make medical determinations of disability. Instead, claims are referred to an agency of the state government that has a contract with SSA for determining disability. At the state agency usually a medical doctor and a layman, called a disability examiner, evaluate the claim, though SSA has been experimenting in pilot projects with having disability examiners make uncomplicated decisions on their own. The SSA then adopts the determinations at these two levels.

If you are dissatisfied with the initial determination, you may appeal. In most states, this appeal is a request for reconsideration. In ten states Alabama, Alaska, Colorado, Louisiana, Michigan, Missouri, New Hampshire, Pennsylvania, and parts of New Yorkand California, called prototype states, SSA is experimenting with eliminating the reconsideration step. The initial determination will tell a claimant in a prototype state to appeal by requesting a hearing. HALLEX I-2-4-99 contains instructions for processing appeals in those circumstances where a claimant moves into or out of a prototype state while the claim is pending.

If you request reconsideration, a different team than the one that issued the initial determination will make the reconsideration determination; but the result will probably be the same. Relatively few reconsideration determinations result in an award of benefits. See 20 C.F.R. §§ 404.907 et seq. regarding reconsideration. The next step is to request a hearing before an administrative law judge.

The Hearing

After you request a hearing, but before a hearing is held, an attorney advisor (whose job includes writing decisions for ALJs) may review the file, request additional evidence and conduct an informal prehearing conference (usually a telephone call to your attorney). The attorney advisor may issue a fully favorable decision. If so, the hearing request will be dismissed unless a request to proceed with the hearing is made within 30 days after the date of the attorney advisor decision. The Appeals Council, not an ALJ, has authority to review a decision by an attorney advisor. 20 C.F.R. § 404.942.

You may appear in person before the ALJ or by video teleconferencing. If you object to appearing by video teleconferencing, the ALJ must reschedule the hearing so that you can appear in person. 20 C.F.R. § 404.936(d) and (e).

At a hearing before an ALJ, evidence may be received even though it would not be admissible in court under the rules of evidence used by the court. 20 C.F.R. § 404.950(c). Vocational or medical experts sometimes testify, appearing in person or by video teleconferencing. 20 C.F.R. § 404.936(c). The hearing is not adversarial in nature. The hearing is recorded and testimony is taken under oath or by affirmation. After the hearing, a written decision is issued by the administrative law judge. See The Hearing and 20 C.F.R. §§ 404.929 et seq.

Differences Between State Agency Determinations and Hearing Decisions

There are significant differences between the way disability is evaluated by the state agencies and the way ALJs approach the issue. Although it is the rule at all levels that a disability decision cannot be inconsistent with the medical evidence, the state agency decision-makers, who have only the cold file to review, seldom look beyond medical findings to consider your actual ability to work. At the state agencies, the Listing of Impairments is used much more often as a basis for a favorable decision. Despite several successful lawsuits challenging this, state agency decision-makers tend to use the Listing of Impairments as the unstated basis for a denial determination, especially for those claimants under age 50.

If a younger claimant’s impairment does not meet a Listing, that claimant is unlikely to be found disabled by the state agency. State agency decision makers tend to apply specific formulas (found in state agency manuals) to determine residual functional capacity (RFC) for certain medical impairments, thus treating all claimants with similar medical findings the same. Few of the state agency formulas point to a conclusion that a claimant can do less than a wide range of sedentary work.

ALJs, on the other hand, tend to view medical findings as setting the parameters for a range of possible RFCs, some of which may lead to a finding of disabled. They view their role as evaluating the entire case, including your credibility, to determine which possible RFC most closely describes your capacity. ALJs find claimants under age 50 disabled because of inability to perform a wide range of sedentary work much more often than state agency decision makers do.

The chart in below was created in conjunction with a Social Security Administration study of the differences between state agency decisions and ALJ decisions. It shows, for example, that during the period studied, ALJs found claimants with back impairments disabled 75% of the time while the state agency did so only 11% of the time. Look at the entry for claimants under age 50 with back impairments. The state agency found them disabled only 2% of the time while ALJs found them disabled 68% of the time.

State Agency and ALJ Disability Decisions Compared

Compare the “Percent of awards—Functional” column, referring to the percentage of findings of disabled made at step 5 of the sequential evaluation process (as opposed to finding the claimant disabled at step 3 on the grounds that the claimant’s impairments meet the Listings). Only 39% of all disability findings were made by state agency decision makers at step 5 compared to 75% of awards made at this step by ALJs.

The SSA has viewed these differences in approach to decision-making as a problem. The series of Social Security rulings published in 1996, SSR 96-1p through SSR 96-9p, known as the “process unification rulings,” were designed to encourage a unified approach to decision making at all administrative levels. Most observers agree that there have been some changes. More claimants are now found disabled by the state agencies. There are fewer favorable decisions being issued by ALJs now than when this study was conducted. But most observers agree that the disparities illustrated by the chart above remain in place. For example, if a claimant is under age 50 and has a back problem that does not meet the Listings, that claimant is likely to be denied by the state agency; but if that claimant is truly unable to work, the claimant may have a good chance of winning before an ALJ.

Appeals Council Review

If a decision after hearing is unfavorable, you or your representative may ask for review of that decision by the Appeals Council, which sits in Falls Church, Virginia. The Appeals Council may decline to review the decision of the administrative law judge, in which case the decision of the ALJ becomes the final decision of the Commissioner of Social Security on the claim, subject to court review. The Appeals Council may review the decision of the ALJ and affirm it, modify it, reverse it, or remand it for a new hearing.

In some instances, the Appeals Council reviews decisions of administrative law judges, either favorable or unfavorable to the claimant, on its own motion.

New evidence, applicable to the time before the date of the ALJ’s decision, may be submitted to the Appeals Council. Review by the Appeals Council is almost always a review of the record. Although there is a provision that allows the claimant or representative to petition to be allowed to appear before the Appeals Council, oral argument is virtually never granted. See 20 C.F.R. §§ 404.967 et seq. regarding Appeals Council review.

Federal Court

If the Appeals Council denies review or makes a decision adverse to you, you may file a civil action in the United States District Court for the district where you live. The Commissioner of Social Security is named as defendant. The court has the power to affirm, modify or reverse the decision of the Commissioner, with or without remanding the case for a rehearing. 42 U.S.C. § 405(g).

If the U.S. District Court affirms the decision of SSA and grants judgment to the defendant Commissioner, you may appeal to the United States Court of Appeals for the circuit in which the district court sits. If the Court of Appeals denies your case, you may file a petition for certiorari with the United States Supreme Court. Recently the Supreme Court has granted certiorari in very few Social Security Act cases.

March 20, 2014
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Good cause for late appeals

By Disability appeals

Good Cause for Late Social Security Disability Appeals

If you do not meet the deadline for appealing a denial of your Social Security disability claim, you may ask that the Social Security Administration (SSA) extend the deadline by finding that there was good cause for missing the deadline. To do so, include with your appeal a detailed letter explaining why the request for review of the determination or decision was untimely. Depending on the circumstances, an affidavit from you may be necessary. If SSA finds “good cause” for the delay in appealing, it will extend the time limit. 20 C.F.R. §§ 404.909(b), 404.933(c), 404.968(b).

POMS GN 03101.020 A.1. provides: “An individual from the component that has the authority to adjudicate the appeal being filed determines whether ‘good cause’ exists.” Thus, an administrative law judge (ALJ) will determine good cause if the Request for Hearing is late; the Appeals Council will determine good cause if the Request for Review of Hearing Decision is late. The Appeals Council will also determine good cause to extend the deadline to file in federal court.

“Good cause” for missing a deadline for requesting review is described in 20 C.F.R. § 404.911. According to that regulation, SSA will consider circumstances preventing a timely appeal, whether any SSA action misled the claimant and whether the claimant failed to understand the requirement of timely appeal. 20 C.F.R. § 404.911(a)(1)-(3). 20 C.F.R. § 404.911(a)(4) provides that SSA will consider:

Whether you had any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which prevented you from filing a timely request or from understanding or knowing about the need to file a timely request for review.

Social Security Ruling 91-5p expands on 20 C.F.R. § 404.911(a)(4). The ruling provides that if a claimant had no one legally responsible for prosecuting the claim, “e.g., a parent of a claimant who is a minor, legal guardian, attorney, or other legal representative,” and the claimant shows that mental incapacity prevented the claimant from timely appealing, “regardless of how much time has passed since the prior administrative action, the claimant can establish good cause for extending the deadline to request review of that action.” According to the ruling, the evidence must show that the claimant lacked the mental capacity to understand the procedures for requesting review. Reasonable doubt is to be resolved in favor of the claimant.

Examples of Good Cause

20 C.F.R. § 404.911(b) provides nine examples of good cause for missing a deadline:

(b) Examples of circumstances where good cause may exist include, but are not limited to, the following situations:

(1) You were seriously ill and were prevented from contacting us in person, in writing, or through a friend, relative, or other person.
(2) There was a death or serious illness in your immediate family.
(3) Important records were destroyed or damaged by fire or other accidental cause.
(4) You were trying very hard to find necessary information to support your claim but did not find the information within the stated time periods.
(5) You asked us for additional information explaining our action within the time limit, and within 60 days of receiving the explanation you requested reconsideration or a hearing, or within 30 days of receiving the explanation you requested Appeal Council review or filed a civil suit.
(6) We gave you incorrect or incomplete information about when and how to request administrative review or to file a civil suit.
(7) You did not receive notice of the determination or decision.
(8) You sent the request to another Government agency in good faith within the time limit and the request did not reach us until after the time period had expired.
(9) Unusual or unavoidable circumstances exist, including the circumstances described in paragraph (a)(4) of this section, which show that you could not have known of the need to file timely, or which prevented you from filing timely.

Common Situations

Example 7 presents the common situation where a claimant says he or she did not receive the determination or decision. To prevail on this issue, as a rule, you need more than simply an allegation. 20 C.F.R. § 404.901 provides, “Date you receive notice means 5 days after the date on the notice, unless you show us that you did not receive it within the 5-day period.” POMS GN 03101.020 A.4.h. provides these examples: “e.g., SSA used incorrect address or claimant moved.”

Another common situation occurs when the claimant was confused by information given by SSA. This allegation not only raises the issue of the claimant’s mental status but also the quality of the information given by SSA. The POMS makes it clear that information from SSA need not be incorrect or incomplete. If the information was confusing, it could form the basis for an argument that there is good cause for missing the deadline. POMS GN 03101.020 A.4.f.

A situation that comes up from time to time is where a claimant thinks that his or her representative filed the appeal. The POMS provides a basis for extending the deadline in this situation. POMS GN 03101.020 A.4., which includes all the examples from 20 C.F.R. § 404.911(b), provides this additional example:

j. the claimant thought his/her representative had filed the appeal (good cause applies to the claimant despite whether the claimant is still represented or represented by a different person);

If SSA refuses to extend the deadline, the late appeal may be treated as a protective filing for a new application. POMS GN 03101.020 A.2 and GN 03102.150 A.1.

March 13, 2014
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