SSI/SSDI Appeals Process: A/C and Level 5

One thing that any new applicant for disability benefits will hear about shortly after submitting their application is the disability appeals process. It can sound like a daunting and difficult process filled with claimant participation and, occasionally, claimants can come to feel that they are doing more for their case than their representative is doing. Many times, however, these feelings come up because claimants are unaware of what is happening behind the scenes and that their representative . This post will take readers through the last two appeal levels in the SSI/SSDI appeals process.

Level 5 takes you to federal court

Level 5 takes you to federal court

The Appeals Counsel

This level of appeal is generally reserved for SSI and SSDI claims that have been denied by an Administrative Law Judge (ALJ). The appeals counsel has other responsibilities as well, however, most claimants will encounter the Appeals Counsel after a denial. If a claimant disagrees with an ALJ’s decision he or she can write a letter or submit an appeal form saying so. However, having a representative to argue the appeal can be a tremendous advantage because many times the appeals counsel will side with an ALJ if the judge’s reasoning appears to be sound on its face. A representative can point the Appeals Counsel to areas where the judge misconstrued the Agency’s rules, missed a piece of evidence, and other issues that may require a second hearing to resolve.

The claimant’s role in at this level of appeal is greatly reduced. He or she can and should submit medical updates to their representative, but generally the appeals counsel will be deciding the appeal based on the information provided by the claimant at the prior three levels. The only real exceptions to this occur when an ALJ made a decision before an important piece of evidence was received or the claimant underwent new tests or procedures which revealed that their conditions were of a greater severity than initially believed by their doctors. In these cases, the new or missed evidence should be submitted to the representative who can submit the information to the Appeals Counsel.

In addition to submitting any relevant new information from the claimant, the representative’s primary role is to brief the appeals counsel on the issues of that which generated the appeal. Most of these issues will be related to the decision made by the ALJ, however, it can also include procedural missteps such as not allowing a certain witness at a hearing or ignoring medical records because of an erroneously enforced local rule.

Federal District Court

This is the “last” level of appeal for a disability application. But, in point of fact, the Supreme Court of the United States is the definitive last level. There are two reasons for this. First, since the Social Security Administration is an agency of the executive branch of the U.S. Government, appeals that go to the courts of the judicial branch require a lawsuit against the Agency’s commissioner. Secondly, the Supreme Court has jurisdiction over cases within the federal judicial branch, meaning that a suit against the Commissioner of SSA is within the Supreme Court’s jurisdiction. All of this being said, there is a very low probability that any SSI or SSDI application will even reach the federal district court level. Here, the roles of claimant and representative will be similar to those in any other lawsuit conducted by an attorney on behalf of a plaintiff. If a claimant made it through the prior four levels of the process without an attorney and wants to continue to the federal district court level, this would be the time to find one. A skilled attorney at this level will state the issues in a manner that fits the law which is most important since it gives a federal district court judge a better look at why the claimant/plaintiff believes that there is an issue and what remedies would be available to the claimant.

The drawback of “level five” is that it takes years to get there and, as long as the ALJ presiding over the hearing did even a middling job of sticking to SSA’s rules, the court may very well side with SSA. This is one of several reasons why there are very few level five cases. Attorneys are reluctant to take cases against SSA that do not have a clearly appealable issue. While that may not seem fair to claimants, it affords them the opportunity to file a new application where they may very well have a better chance at approval the second time around and cuts off additional months of waiting to a process that has been years in the making. Moreover, most attorneys would have to front the costs for taking an appeal to court and may receive little in the way of reward as attorneys fees are still governed by the Social Security Act. While a disability case may be slightly less expensive, even taking a basic automobile accident to court can cost about $17,000. Since attorney’s fees are capped at $6,000 and can only be increased based upon a fee petition, you can see why many lawyers are reluctant to take a case this high.

Having attorneys wait for bright line issues, though, also means that the cases that do make it to federal district court have a much stronger chance of success. If a case is successful in court, it will be remanded down to the original ALJ for a new hearing with instructions to the ALJ to make proper findings. This process can repeat itself over and over until there is a final disposition, but to avoid such a feedback loop, a case will only be remanded to the original ALJ once. If the ALJ insists on repeating his findings, the case will again be remanded, but to a different ALJ.

If you have been denied at any level of the process, or have read our appeals series and have questions, please contact us!

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