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!

The Appeals Process: Hearing Level

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 some brief descriptions of the steps in the appeals process and the roles of the claimant and representative are at each stop.

Today’s post is going to discuss the third level of the SSI/SSDI appeals process.

The Hearing

In some ways, having a disability case at the hearing level is like starting your claim over again. It takes about the same amount of time as the first two levels of appeal, your representative will request as many or more records than they and SSA did in the first two levels, and you generally will also have a new SSA office to speak with since your case will now be at the Office of Disability Adjudication and Review (ODAR). Because there is a substantial wait to even be scheduled for a hearing, many people will lose interest in their cases and some will even forget that they have a pending claim with SSA. However, most claimants are harshly reminded that their claim is pending when they receive a notice that they have been scheduled to appear before a judge.

This can cause some panic for claimants. This can be doubly so when an advocate wants to re-interview them about their medical history and medical providers. This is a very standard and necessary practice. The medical records that SSA would have on file would now be over one year old. Presumably claimants would have received some treatment for their conditions and it is necessary to show that their conditions remain when they reach the hearing by securing updated medical records. It also does not make much sense to try to collect medical records until about sixty to ninety days from the hearing. Many ALJs will require records more or less through the date of the hearing, so requesting them too far out will mean that the advocate will need to do another round of requests. It usually saves everyone time if the records are submitted close to the hearing.

This is the level where the claimant is presented with his or her day in court, and often will have the first real opportunity to explain to a person that would listen what their conditions are and how their symptoms effect them. This is also the part of the process that takes the longest. Generally, the wait for a hearing takes over a year from the date of the request. The reason for this is that, based on 2015’s numbers, there were about 1.1 million claimants that requested a hearing, and about 1,800 judges to hear their cases. That breaks down to about 611 hearings per judge. Since each hearing is about an hour long, that leaves about 1,400 hours in the year (based on a 2,080 hour, i.e. 9-5 job’s work year) for ALJs to write decisions, decide fee petitions, correspond with medical experts, hear overpayment cases, and perform all of their other duties. There are simply not enough judges to hear cases and, so, the process is relatively drawn out.

At this level, the claimant’s responsibilities will be generally the same as at reconsideration with one notable difference. The claimant will also need to testify at a hearing. This testimony is usually presented through questions asked by both their attorney and the ALJ through questions about their conditions, what treatment they have received, how they spend their days, and many other topics.

The representative will prepare for the hearing in a number of ways. First, they will ensure that any and all relevant medical records have been brought up to date as it becomes the advocate’s responsibility to complete the record. They will also make sure that, not only have the records been received, but that they have been submitted to SSA. The representative will also renew any requests for consultative examinations, respond to those reports, make motions for subpoenas for any non-responsive record providers, collect medical source statements, and write and submit a pre-hearing memoranda to the judge, among others. The representative will also conduct the hearing and will have prepared for it by reviewing all of the records, researching the claimant’s conditions in detail, studying the listings of impairments related to those conditions, and interviewing the claimant to get the best possible idea of how they are effected by their symptoms. The advocate will also have the responsibility of addressing any issues that come up at the hearing through the submission of additional or missing records or post-hearing briefs to the judge on specific topics.

Probably more than any other part of the appeals process, the hearing level is where a claimant will benefit from an attorney’s help the most. Many ALJs will be understanding enough with pro se applicants and will try to get them through a hearing. However, most claimants have no little knowledge of what will and will not constitute evidence of a disability, will not be able to properly brief the judge on their conditions, or how to cross examine a vocational witness. It is by allowing the claimant to leverage their knowledge and experience that attorneys and advocates can benefit claimants.

If you are currently in the appeals process and would like to speak with an attorney contact us today!