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: Reconsideration

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. 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.

Reconsideration

Requesting reconsideration is like asking SSA to redo the work it did during the initial application process. In doing this, SSA will send the application and supporting documents to a different decision maker to see if they come out with a different result. The claimant is allowed to submit additional information or request that SSA go out and get some additional records. This process usually works on the same 3-6 month timeline as the initial application, but can often be quicker since much of the case development was begun in the application stage.

For reconsideration, the claimant should have fewer responsibilities. The most major of these is providing his or her representative with information about recent doctor’s visits, new diagnoses, or new tests. The other important responsibility the claimant will have is completing some paperwork that SSA is going to send to the claimant. These papers can be filled out by the representative, however, most of what the claimant will receive will be questionnaires about their activities of daily living or symptoms they regularly experience making the claimant the best person to complete them.

At this stage, the representative will provide updated medical information to the agency, renew any requests for consultative examinations, respond to the examination reports, and likely add arguments to be presented to the new decision maker(s) reviewing the case. For more severe cases, the representative may also attempt to provide specialist opinions, medical source statements, or vocational opinions that refute the Agency’s reasons for denying at the application stage. Additionally, an attorney or advocate will also spend a good amount of time ironing out issues with medical record providers.

The Social Security Administration ultimately bears responsibility for collecting medical records during the initial application and reconsideration stages of the process. However, most providers are corporations and have requirements for being reimbursed for records. They also seem to assume that SSA is demanding the records for free (despite usually receiving a request for an invoice to be paid by the Administration). Depending upon the state, SSA (and disability lawyers) not only will require that the records be free of charge, but will do so because the state legislatures have enacted laws making it illegal to charge for records meant to support an SSI/SSDI claim. In this type of conflict between law and corporate policy, the law generally wins, but unless someone explains how the laws governing medical records works to a provider, or obtains a subpoena from an ALJ to require them to be released, the records may simply never be returned. Thus, this becomes a time consuming responsibility for your representative during the Reconsideration and hearing stages.