APPEALS COUNCIL REVIEW
APPEALS COUNCIL REVIEW – SHOULD YOU APPEAL?
If the ALJ sent you an Unfavorable Decision after your hearing, you should be asking yourself if it is time to seek Appeals Council review. The Appeals Council is a group of individuals who review ALJ decisions from all over the nation. If you lost your hearing, you have 60 days from the date on your decision to appeal the case. The appeal must be written and mailed prior to the 60 day deadline.
In order to appeal the ALJ’s decision, you must show that substantial evidence does not support the ALJ’s decision. This means that the evidence does not support the ALJ’s findings. In other words, the medical and testimony evidence is contrary to the ALJ’s findings. Additionally, you can argue that the judge made a mistake applying the law.
CLAIMANT’S ODDS AT THE APPEALS COUNCIL
The reversal rate at the Appeals Council is minimal. Only 2-3% of the cases under review by the Appeals Council were reversed in the claimant’s favor in 2018. Another 14% were sent back to the ALJ for another hearing. They call this a remand. The rest of the cases, 83%, were denied review. Social Security, Hearing and Appeals, AC Remands as Percentage of all AC Dispositions, available at ssa.gov. This means that the only option for the claimant, after the Appeals Council denies review, is to appeal to Federal Court.
An 83% denial rate tells you that you have dismal odds at the Appeals Council. But 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 litigation experience will have the best chance at winning your appeal. You should not appeal on your own.
REASONS THE APPEALS COUNCIL WILL REVIEW A CASE
The Appeals Council will review a case if:
- the ALJ abused his discretion,
- there is an error of law,
- substantial evidence does not support the ALJ’s decision,
- a procedural issue affects the public interest,
- there is new and material evidence,
- the claimant did not have a representative and the record was developed improperly,
- ALJ’s failure to proffer post-hearing evidence,
- the ALJ’s failure to properly weigh claimant’s testimony,
- ALJ’s failure to properly weigh the treating source opinion,
- the ALJ’s failure to properly weigh the non-treating source opinion
- ALJ’s failure to provide sufficient rationale for weight given to treating source opinion,
- at the hearing, ALJ’s failure to use VE when transferability of skills is an issue,
- ALJ’s failure to use VE when pain was so significant that claimant could not perform a full range of work at the appropriate residual functional capacity level, or failure to use VE when the ALJ found significant non-exertional limitations. See 20 C.F.R.§§ 404.970 and 416.1470.
The first objective in seeking review at the Appeals Council level is to obtain a full review and avoid a summary denial. The second objective is to win a reversal or at least a remand. A remand indicates the Appeals Council doubts the medical and other evidence is sufficient to support a denial of benefits. A third objective is to preserve a record for appeal at the Federal Court level. See Dianna Cannon, Social Security Disability Claims, Volume 1, § 7:2, 190 (2019).
APPEAL OR FILE A NEW APPLICATION?
The SSA no longer allows the claimant to appeal an application to the Appeals Council and file a new application at the same time. Unless, there is a completely new impairment that causes disability. Therefore, most of the time you need to make a decision between appealing your hearing denial to the Appeals Council and filing a new application. It can be a difficult decision to make. If you do not appeal an unfavorable hearing decision to the Appeals Council, then you will lose any past-due money from that application.
However, filing a new application and giving up on the old one can result in a faster favorable decision, 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 would be if your past case contains a date last insured. 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 unfavorable decision, call our office. We will talk to you for free and discuss the benefits of appealing or filing a new application. Call or contact Cannon Disability Law today.