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All About Social Security Disability Appeals

September 30, 2020 11:55 am | Tags: , , | Categorised in:

The Judge denied my claim for Social Security Disability benefits, should I appeal?

If you are denied benefits following a Social Security Disability hearing, you have the right to appeal to the Appeals Council. The Appeals Council will either deny review, grant review and reverse the Judge’s decision, remand the decision for a new hearing or issue a partially favorable decision. The choice to file an appeal might not be as clear cut as you think.

Unfortunately, the Appeals Council is more concerned with making sure that the Social Security Administration follows the law and its own regulations and policies; as opposed to determining whether or not you are disabled.  Also, appealing to the Appeals Council is a lengthy process, taking around 12 to 18 months. 

Also, if you do choose to file an appeal, you will not be able to simultaneously file a new claim, which may be the better option. So, you and your attorney should carefully discuss your options and choose which route best serves you. Unfortunately, the Appeals Council only grants review in a very small number of cases. Generally, it is somewhere between 15% and 20% of cases.

 

Determining Whether Filing For an Appeal is the Right Move

Again, the Appeals Council is not so concerned with whether or not you are disabled. It is primarily concerned with whether the Judge made a legal error or whether the Judge’s decision is supported by substantial evidence. If there was no legal error and the Judge’s decision was supported by substantial evidence, then you likely will be denied review from the Appeals Council. I explain to clients that they may not agree with the Judge’s decision, but if there is support for it in the record; then the judge’s decision will likely withstand the substantial evidence test; and you will be denied review. Therefore, if there is no legal error or oversight on the part of the Judge, and the substantial evidence standard is met; I generally recommend against filing an appeal. 

 

However, another factor to consider is that even if the Appeals Council grants review, that does not guarantee a reversal of the Judge’s decision.  Instead, the Appeals Council can simply remand the case back for another hearing or back for clarification with the same Judge that already ruled against you.  A remand to the same Judge is likely to lead to the same result.

 

Sometimes you will not have a choice as to whether to appeal or file a new claim. If your date of last insured status has already passed; then you will not be able to file a new claim and your only option would be to appeal. If you do get denied review by the Appeals Council then you have exhausted all of your administrative remedies and you will be able to file in Federal Court. 

 

Best Arguments for a Successful Appeal Council Review

What are the best arguments for successful Appeals Council review?   The best arguments are those where you can show that the Judge failed to follow the law or a social security regulation or ruling, and his or her decision is not supported by substantial evidence, and you are disabled.  Simply arguing that you are disabled alone is usually not going to be enough. Generally, the Appeals Council does not even look at the issue of whether or not you are disabled until after it finds that the Judge’s decision is either not supported by substantial evidence, is legally erroneous, or that there was an abuse of discretion. 

 

Decision Not Supported by Substantial Evidence

What does it mean to show that the decision is not supported by substantial evidence?  Essentially, your attorney should look to see if the medical evidence outlined in the decision is accurate. 

  • Does the decision really reflect what the medical evidence actually says? 
  • Did the Judge give reasons for his or her conclusions? 
  • If there are inconsistencies between the opinions of the medical doctors and the Judge’s findings, does the decision explain these inconsistencies? 
  • Does the decision explain why evidence supporting a finding of disability was rejected? 
  • Does the decision rely on evidence that was not offered at the hearing or otherwise in the record? 
  • Does the decision find no severe impairment based only on the medical evidence, without considering your testimony and evidence of symptoms supporting a disability? 
  • Does the decision misstate your testimony?  
  • Does the decision explain the reason for the Judge’s findings on credibility?  
  • Did the Judge consider information about your symptoms and any opinions from your doctors regarding your functional ability? 
  • Did the Judge consider all of your impairments? 

 

This list is not an exhaustive list of all the issues.

 

What does it mean to show that the Judge made a legal error?   Generally, the decision must be evaluated to see if the Judge misapplied the law or failed to follow the steps in the sequential disability analysis. 

 

The 5-Step Analysis

The sequential disability analysis is a five step analysis that must be applied in every case.  A Claimant must meet the criteria in each of the five steps before moving on to the next step.  Essentially, if a Claimant meets the criteria of all five steps then there will be a finding of disability.

 

  1. In the first step, the Social Security Administration looks at whether or not you are working. If you are working you must not be engaging in substantial gainful activity. In the year 2020, substantial gainful activity is defined as earning over $1,260 a month.  If you have no earnings or are earning under that amount then you move on to step two.
  2. In step two of the process, you must show that your impairment or impairments are severe. To be severe, your impairment(s) must have more than a minimal impact on your ability to engage in basic work activity. 
  3. In step three of the process, it is determined whether your condition meets the criteria of a listing. Social Security created a list of conditions referred to as the “listings”.  If you meet the criteria of a listed condition; you will be considered disabled automatically without having to meet steps four or five.
  4. At step four in the process, your residual functional capacity is determined. This is an evaluation of your level of disability as measured by your functional ability to engage in basic work activity considering your impairment(s).  The first question that must be answered is whether you are able to do any of your past relevant work considering your residual functional capacity. If you are not deemed able to return to your past relevant work, then you move on to step five. 
  5. At step five in the process, the last and final step, it is determined whether you can return to any other work within your residual functional capacity, considering your age, education and work experience.  If there are no other jobs that you can do within your residual functional capacity, then you will be considered disabled. If the Judge did not adequately or accurately apply the criteria at each of these five steps, then there may be a good argument that he or she made a legal error. 

 

What if I want to appeal a partially favorable decision? An example of a partially favorable decision is one where you are granted benefits but perhaps your alleged on-set date, (the date when you allege your disability started), was moved forward and you do not receive retroactive benefits.  If you appeal this partially favorable decision to the Appeals Council and they grant review, the entire decision comes under review, not just the onset date portion of the decision. Therefore, you risk the Appeals Council reversing the entire decision, and not just the one part you found objectionable.

 

As demonstrated in this article, there are a lot of facets to consider when deciding whether to pursue an appeal to the Appeals Council.  You should consult with an Attorney to go over your options. Of course, initiating your social security disability claim with the assistance of an Attorney will greatly increase your chances of success in the first place, avoiding the need to appeal. 

 

At the LaBovick Law Group we provide free consultations where we will review the facts of your case to determine if this is the right program for you.  Call us today at (561) 625-8400 for your free evaluation.