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 the 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. There is another deadline to keep in mind. If you have already gone to Federal Court and this will be your second time at the Appeals Council, then the deadline is 30 days. Please read your denial to find out how many days you have to appeal.
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. Or, you can argue, if you have good reason, that the judge had a bias against you. This, however, is not a very common or successful argument.
THE CLAIMANT’S ODDS ON REVIEW
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. The numbers of Social Security Appeals Council Remands, as Percentage of all AC Dispositions, is available at the Social Security website. If you lose at the Appeals Council, you have few options. 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
There are only so many reasons the Appeals Council will review your 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 the 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 the pain was so significant that the 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. Again, if you do not appeal, you will lose the chance of ever obtaining that past due money.
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.
CANNON DISABILITY LAW CAN HELP YOU AT THE APPEALS COUNCIL
Our representatives want to be your disability legal team. We will prepare you for your hearing and appeal your case if you receive a denial. Dianna Cannon has been representing people with disabilities for over thirty years. Brett Bunkall and Andria Summers also have years of litigation experience. It is always our goal to win disability benefits for our clients. But it is also our goal to make the disability review process easier for you.
In the past 30 years, we have won over $100 million in ongoing and past-due due disability 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 disability process. We have the experience you need to win your disability case.
Additionally, we believe we are the best disability team that you can hire to help you with your case. It is free to call and talk to us about your case. We will answer your questions about disability benefits for free. Many law firms claim to be specialists at Social Security Disability cases. When you call them, ask how many cases they have won. Ask them how long they have been in business. We have been in business for over 30 years. You may be surprised to learn that they are new lawyers. Or, that in reality, they have very little experience in disability court. You should hire the best disability firm to help you apply for benefits and appeal your disability case. Hire the firm with the experience to win your SSD & SSI case. Contact us today.