APPEALS COUNCIL REVIEW
APPEALS COUNCIL REVIEW – SHOULD YOU APPEAL?
Appeals Council review is the next step after an ALJ hearing. If the ALJ sent you an Unfavorable Decision after your hearing, you should be asking if it is time to seek the Appeals Council review. The Appeals Council reviews ALJ decisions from all over the country. If you lost your hearing, then you have 60 days from the date on your decision to appeal your case. If you need help with an appeal, then contact our law firm. We offer a free review of your case.
The appeal must be written and mailed prior to the 60 day time limit. However, there is another time frame to keep in mind. If you have already gone to Federal Court and this is your second time at the Appeals Council, then the time limit for appeal is 30 days. Please read your denial to find out how many days you have in which to appeal. Do not fail to meet the SSA’s time limit. If you don’t appeal in time, then you lose your right to appeal.
In order to appeal the ALJ’s decision, you must show the medical evidence does not support the ALJ’s decision. This means that the evidence is contrary to the ALJ’s findings.
Additionally, you can argue that the judge made a mistake and failed to properly apply the law. Or, if you have good reason, you can argue the judge has a bias against you. This, however, is not a very common or successful argument.
THE CLAIMANT’S ODDS AT THE APPEALS COUNCIL
The reversal rate at the Appeals Council is minimal. For example, normally only 2-3% of the cases under review by the Appeals Council end with benefits being awarded. Another 14% are sent back to the ALJ for another hearing. The SSA calls this a remand. In the rest of the cases, 83% are denied review. This means that the Appeals Council refuses to do anything with the case because they agree with the ALJ’s decision.
The number of Social Security Appeals Council Remands, as a percentage of all AC Dispositions, is available at the Social Security website. If you lose at the Appeals Council, you have very few options. The only option after the Appeals Council denies review, is to appeal the case to Federal Court.
An 83% denial rate tells you that you have dismal odds at the Appeals Council. However, cases can be won. Below please find reasons the Appeals Council will review a case. These reasons should form the basis for your attorneys’ appeal.
It is best to hire an attorney, if you haven’t already, because in order to appeal you will need to write a brief. An attorney with appeal experience will have the best chance at winning your case. You should not appeal on your own. In order to understand the case law and know the issues that can win the case, you need an attorney who has a broad understanding of Social Security law.
REASONS THE APPEALS COUNCIL WILL REVIEW A CASE
There are only so many reasons the Appeals Council will review your case. The Appeals Council will review a case if:
- The ALJ abused their discretion.
- There is an error of law.
- Substantial evidence does not support the ALJ’s decision.
- An issue dealing with procedure affects the public interest.
- There is new and material evidence that could change the outcome of the case.
- The client did not have a lawyer and the record was not properly developed.
- ALJ failed to proffer evidence after the hearing.
- The ALJ failed to properly weigh the testimony at the hearing.
- ALJ’s failure to properly weigh the treating source opinion.
- The ALJ’s failed to properly weigh the medical opinion of a doctor who does not treat the patient.
- ALJ failed to provide good reasons for the weight given to a treating source opinion.
- At the hearing, the ALJ failed to use a VE when the issue was whether skills transfer to other jobs.
- ALJ did not use a VE when the pain was so significant that the client could not perform a full range of work at the appropriate functional capacity level.
- The ALJ failed to use the VE when the ALJ found significant limitations that were not exertional.
WHAT IS YOUR GOAL IN SEEKING REVIEW?
Before you appeal your case to the Appeals Council, discuss with your lawyer what you hope to obtain by filing an appeal. When you talk with your lawyer, you will find that filing an appeal can take up to two years. Of course, there are times when it only takes the Appeals Council three or four months to remand a case back to the ALJ. But a quick remand is not as likely as waiting a long time. On average, in our firm’s experience, you can expect a one year wait for an Appeals Council answer.
Here are some of the reasons to appeal your ALJ denial to the Appeals Council:
The first goal in seeking review at the Appeals Council level is to obtain a full review and avoid a summary denial.
The second goal is to have the Appeals Council overturn your case. A more likely outcome is to obtain a remand of your case. A remand means that the Appeals Council is sending your case back to the judge to correct a mistake. If your case is sent back to the judge, then it can mean the Appeals Council doubts the evidence supports the ALJ’s denial of benefits.
A third goal is to preserve a record for appeal at the Federal Court level. See Dianna Cannon, Social Security Disability Claims, Volume 1, § 7:2, 190 (2022). Filing an appeal to Federal Court requires even more patience. That process can take anywhere from one year to five years.
APPEAL OR FILE A NEW APPLICATION?
The SSA no longer allows you to appeal a denial to the Appeals Council and file a new application at the same time. You can only file a new application if there is a completely new condition that causes you to be unable to work. Therefore, most of the time you need to make a decision between whether or not you should file an appeal to the Appeals Council or file a new application.
It can be a difficult decision to make. If you do not appeal a hearing decision to the Appeals Council, then you will lose any past due money from that application. Again, if you do not appeal, you will lose the chance of ever winning your past due money.
One of the other facts you should be aware of is that if you win a remand from the Appeals Council, then your hearing will be with the same judge that you had at your first hearing. Some people don’t like that idea. If you feel the judge didn’t give you a fair chance, then you may not want a hearing with the same judge. However, it the SSA’s policy to send cases back to the same judge.
Keep in mind that sometimes waiting for a decision from the Appeals Council takes just as long as filing a new application and having a hearing with a new judge.
DO YOU HAVE A DATE LAST INSURED PROBLEM?
Filing a new application and giving up on the old one can result in a faster decision about your benefits. Because it can take up to two years to get an answer back from the Appeals Council.
Additionally, the one time you do not want to file a new application is if your past case has a date last insured problem. If you date last insured has expired, then you are no longer insured for benefits. You don’t want the decision of the judge, which might be after your DLI, to become final. If so, then you cannot ever win SSDI benefits. If you have this issue, then your only choice is to file an appeal of the ALJ’s decision. Make sure you are making the right decision about whether you should appeal by talking to a lawyer.
If you need help with an appeal to the Appeals Council or you are struggling to decide what to do about an SSA decision, call our office. We will talk to you for free and discuss the benefits of filing an appeal or filing a new application. Contact our law firm today.
SMITH V. BERRYHILL – FEDERAL COURT REVIEW
On May 28, 2019, the U.S Supreme Court issued a unanimous decision in Smith v. Berryhill, 139 S. Ct. 1765 (2019), reversing the Sixth Circuit’s holding. The Sixth Circuit held that an Appeals Council dismissal was not subject to federal judicial review. But, the U.S. Supreme Court held that an Appeals Council’s dismissal of “a request for review as untimely after a claimant has obtained a hearing from an ALJ on the merits… qualifies as a ‘final decision… made after a hearing” within the meaning of 42 U.S.C. §405(g). This means that claimant now has an option for federal court review, when before there was no option.
APPEALS COUNCIL DECISION IS FINAL AND APPEALABLE TO FEDERAL COURT
In the case, the claimant’s attorney stated he filed a timely appeal to the Appeals Council. The Appeals Council claimed they never received it and dismissed the case. As it was an issue of “timeliness,” the SSA claimed the decision was not subject to review. The SSA has long held that a dismissal for untimeliness is not a “final” decision. Therefore, as it was not final, it was not subject to judicial review. In other words, you could not appeal to Federal Court, even if the SSA made a mistake. Therefore, even though the Appeals Council lost the file, as they did in this case, the claimant’s attorney had no recourse. The Supreme Court agreed with the attorney that there are circumstances where appeal should be allowed.
FEDERAL COURT HAS JUDICIAL REVIEW WHEN SSA MISTAKE OCCURS
The Smith v. Berryhill decision, authored by Justice Sotomayor, overturns the old SSA policy. Now, there is judicial review in Federal Court for SSA’s mistakes. The Court stated that mistakes occur at SSA during the administrative appeals process. They then stated the Court does “not presume that Congress intended for this claimant-protective statute… to leave a claimant without recourse to the courts when such a mistake does occur.” Least of all when the claimant may have already spent a significant amount of likely limited resources in a lengthy proceeding.
THE HOLDING IN SMITH V. BERRYHILL IS GOOD NEWS FOR CLAIMANTS
The holding in Smith v. Berryhill is excellent news if you are seeking judicial review in Federal Court. The Court held, however, that judicial review may not apply in reopening situations. For example, when the ALJ has specifically declined to reopen a prior application. If you need help filing for SSDI and SSI benefits or filing an appeal, then contact us.
WE CAN HELP YOU WITH APPEALS COUNCIL REVIEW
If you need to request Appeals Council review, then our lawyers want to be your legal team. We will prepare you for your hearing and appeal your case if you receive a denial.
Dianna Cannon has been helping her clients win SSDI and SSI benefits for over thirty years. Brett Bunkall and Andria Summers also have years of legal experience. It is always our goal to win benefits for our clients. But it is also our goal to make the entire review process easier for you.
In the past 30 years, we have won over $100 million in ongoing and past due SSD benefits for our clients. You want to hire an attorney with the experience to win your case. Also, you need a guide to help you through the appeal process. We have the experience you need to win your benefits case.
Additionally, we believe we are the best legal team you can hire to help you with your SSD and SSI case. It is free to call and talk to us about your case. If you have issues with your date last insured, then we can answer those questions too. We will answer your questions about SSD benefits for free.
WE OFFER A FREE REVIEW OF YOUR APPEAL
If you need help filing an appeal at the Appeals Council, then reach out to Cannon Disability Law. Taking the first step by calling us. All you need to do is contact our legal team and we can talk to you about the Appeals Council.
Additionally, we offer a free review of your case. What that means is that you can call us and explain your situation. At that point, we will look at the merits of your case for free. Then, we let you know if you have a chance to win benefits on appeal. We do not charge you for our review of your case.
In the past 30 years, we have won over $100 million in SSDI and SSI benefits for our clients. We are experts at what we do and we will put our knowledge to work for you. Hire us to be your Social Security legal team.
We help clients win benefits in many states, including Nevada, Utah, Idaho, and California. Find out more about your benefits and how to apply in your state here:
- California SSDI and SSI benefits
- Colorado SSDI and SSI benefit information
- Idaho SSDI and SSI benefits
- Nevada SSDI and SSI benefits
- Utah SSDI and SSI benefits
No matter where you live, we can help you with an appeal to the Appeals Council. Hire the best Social Security legal team with no money down. Also, there will be no attorney fee unless we win your case. Contact us today.
WE ARE EXPERTS AT THE APPEALS COUNCIL
Many law firms claim to be experts at SSD and SSI cases. When you call them, ask how many cases they have won. Also, you should ask them how long they have been in business. Then, ask them if they have experience at the Appeals Council or in Federal Court.
You may be surprised to learn that they are new lawyers. Or, that in reality, they have very little experience in court. Chances are also good that they have never taken a case to the Appeals Council or to Federal Court. Ask them how many cases they have won on at the Appeals Council before you hire them.
You should hire a law firm that has been in business for over 30 years. We have decades of appeal experience. Hire us. We have years of legal experience at the Appeals Council and Federal Court. Additionally, during our time in business we have won over 20,000 SSDI and SSI claims.
You should hire the best SSD law firm to help you apply for benefits and appeal the SSA’s decisions. Hire the law firm with the most appeal experience to win your SSD & SSI benefits. We are that firm. Contact us today. We offer a free review of your case. Call now. See if we can help you win Appeals Council review of your SSDI and SSI benefits.
