Whether you received an award of benefits or a denial, by law, the judge must explain the decision in writing. The opinion must go through each step of the five step review process that SSA requires the judge to use in his or her decision. When you read your hearing decision, pay attention to each step of the review.
STEP ONE: ARE YOU WORKING?
The first step of review is the easiest. The judge will ask if you are working. You cannot get SSDI or SSI benefits if you are working. The SSA defines work as earning over the level of substantial gainful activity (SGA). In 2022, the SGA threshold was $1,350 per month. In 2023, the SGA threshold is $1470 per month. This is before taxes are taken out.
If you’re earning more money than that, the ALJ cannot award you benefits by law. The only way the judge could grant benefits is if she decides your work is an unsuccessful work attempt. If the judge finds you are not working above the SGA level, then the review process continues to step two.
STEP TWO: SEVERE MEDICAL CONDITIONS
At step two, the ALJ decides what medical conditions are “severe” according to the SSA’s rules. Severe medical conditions are those that impact your ability to sit, stand, walk, and use your hands. Also, your medical condition must prevent your from working and even doing your activities of daily living for at least one year.
If you don’t have any severe medical conditions, then the ALJ will deny your claim. Many people have a combination of severe and non-severe symptoms. The ALJ must discuss each condition and explain why it is or isn’t severe in the hearing decision. As long as the ALJ states that you have at least one severe condition, then the judge will proceed to the third review step.
STEP THREE: DOES YOUR MEDICAL CONDITION MEET OR EQUAL A LISTING?
At step three of the review process, the judge decides whether one or your medical conditions meets a listing. One of more physical or mental conditions can meet a listing. The decision at to meeting the listing is based on your medical records. If you do not meet a listing, then the judge will decide whether or not the combination of your medical conditions equal a listing.
The judge must explain why you meet or equal a the listing in the decision. Also, the judge must review the medical and testimony evidence in the decision and refer to the records that support the decision. The judge can call a medical expert to testify about whether or not you meet or equal SSA’s rules. Learn more about the medical expert here. If you do not meet or equal a listing, then the judge will move to the next step.
STEP FOUR: CAN YOU DO YOUR PAST RELEVANT WORK?
During the fourth step, the judge will go over the jobs you have done in the last 15 years. The judge will classify your work. Your past work will either be skilled or unskilled. And, depending on the amount of weight and standing and walking you did, your job will either be sedentary, light, medium, or heavy.
The ALJ will then decide whether you can return to any of your past work considering your severe medical conditions. The judge does this by defining your residual functional capacity, after taking into account your physical and mental health symptoms. Your RFC is what you can do during an 8 hour day at work.
If a vocational expert (VE) stated at your hearing that you can still do your old job, or if the ALJ felt you could still perform your past work, the opinion will explain why, and you will be denied. But if the ALJ doesn’t think you could do your past work, the process continues.
STEP FIVE: THE ALJ MUST SHOW YOU CAN DO OTHER WORK
The fifth step is where the burden of proof shifts to the government. This means the judge must show that there are other jobs you can perform in the national economy with your medical conditions. The hearing decision must discuss your medical symptoms, review statements from your treating doctors, and discuss any opinions from SSA’s doctors. The judge must also review your hearing testimony.
Next, the judge will looks at your age, education, and any skills that you have from your past work. The judge will then use the medical vocational guidelines (GRID Rules) to decide if you can be paid benefits.
If the GRID Rules don’t apply, then the judge will the ALJ will ask questions of the VE. Learn more about the VE here. The VE will testify as to whether or not there are jobs that you can perform with your symptoms. If the judge agrees with the VE that you cannot work, then the judge will award your benefits. If the VE states that you can work and the judge agrees, then the judge will deny your benefits.
No matter what the judge decides, the hearing decision needs to be based upon substantial evidence. This means that what the judge decides, a reasonable person, considering the record as a whole, might accept it supports the judge’s hearing decision. Even though other reasonable people might disagree.
THE RISKS ON APPEAL
If the judge denies your benefits, then you can appeal the hearing decision. You have 60 days from the date of the hearing decision to file an appeal with the Appeals Council.
If you have a partially favorable decision and you don’t agree with a portion of the decision, you can also appeal to the Appeals Council. However, think long and hard about whether or not you want to appeal such a decision. Because when you appeal any decision, the whole decision is up for grabs, even the positive parts. That means the Appeals Council could change the judge’s positive findings and deny you all of your benefits. Or, they could send the hearing decision back to the judge and say they do not agree with any of the findings.
Once you appeal, you could lose the benefits that the judge granted. So, you need to think about whether you can accept the benefits you have or risk losing them on an appeal.
APPEALS COUNCIL REVIEW
Appeals Council review is the next step after getting a hearing decision. Review the hearing decision and ask yourself if you want 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 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 to appeal. Do not fail to appeal before the SSA’s time limit.
In order to appeal the ALJ’s decision, you must show that the medical evidence does not support the ALJ’s decision. This means that the medical and testimony evidence are 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.
REASONS THE APPEALS COUNCIL WILL REVIEW A CASE
There are only so many reasons the Appeals Council will review a hearing decision. The Appeals Council will review the judge’s hearing decision 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.
- You 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 skills were an issue.
- ALJ did not use a VE when the pain was so significant that you could not perform a full range of work at the proper RFC level.
WE CAN HELP YOU WITH APPEALS COUNCIL REVIEW
Our lawyers want to be your legal team for Appeals Council review. We will prepare you for your hearing and appeal your case if you receive a denial.
Dianna Cannon has been helping people with 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 and SSI 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 appeal your hearing decision.
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, we can answer those questions too. We will answer your questions about SSD benefits for free.
FEDERAL COURT REVIEW
If you receive a denial from the Appeals Council, then it is possible to appeal the denial to Federal Court. However, in order to have access to review under the Social Security Act, the decision of the SSA must be final. Also, you must file a Complaint in Federal Court within 60 days of the mailing of the Commissioner’s final decision in your case.
In order for a decision to be final, normally you must exhaust all procedural process. This means, in order to appeal your case to Federal Court, you must have gone through the various stages of appeal. For further information about exhaustion of procedural process, please review our note on Smith v. Berryhill.
In other words, your case must have already been through the hearing stage. You must also timely appeal each denial. Finally, you must also have a final decision by the Appeals Council. An Appeals Council decision is not final and therefore, not subject to Federal Court review if it affirms an ALJ’s application of res judicata. Most of the time, an ALJ will dismiss a case on the grounds of a late appeal.
Subsequently, the Appeals Council can also dismiss a case due to a late appeal. When this occurs, the dismissal is not a “final decision.” Because it is not a final decision, a dismissal due to late filing cannot usually be taken to Federal Court. Learn more about Federal Court review here.
WHAT WE DO TO HELP YOU WIN BENEFITS
You do not need to apply for SSDI and SSI benefits by yourself. You can always call our law firm and we will help you win benefits. There is no charge to call us. We can help you file your SSD and SSI application. Also, we can help you appeal every SSA denial. For example, our attorneys and staff can:
If you file your application for benefits online at Social Security’s website, then you have 6 months to complete the application. Once you submit your application online, the SSA sends you an application summary in the mail. You must sign the summary and mail it back. If you don’t send it back, the SSA will not process your application. Sign it and send it back as soon as you can.
WORK WITH YOUR LAWYER ON HEARING PREPARATION
Prior to your hearing, work with your lawyer to get a good outcome. In addition to medical records, your lawyer may request other evidence. For example, this may include letters from your doctor or former employer. Your lawyer may want to send in letters from your family or friends. Additionally, there may be other forms that your doctor can complete on your behalf. While these records are only additions to what is already in your SSA file, they can provide valuable support for your SSD and SSI claim.
With your file complete and ready to go, talk with your lawyer. This meeting provides crucial information regarding your claim and the court process. Your meeting is likely the final stage before going to your hearing, so make sure to ask questions at the meeting with your lawyer.
You have a hearing date. You have completed the Notice of Hearing forms and updated your medical records. Additionally, you have talked to your doctor about letters to be written on your behalf. Finally, you have prepared with your lawyer to testify at your hearing. Now it is time for the ALJ to hear your story. So take a deep breath, focus, and speak your mind. It’s the very best way to ensure you receive the help you need. If you need a lawyer to help you at your ALJ hearing, please contact Cannon Disability Law.
HIRE OUR EXPERT ATTORNEYS & LEGAL STAFF
If you need help winning your SSD and SSI benefits, you have found the right law firm. Call us and we will help you understand your hearing decision. You can learn more about the attorneys at our law firm on our About Us page.
For example, you may want to know that Dianna Cannon has been helping her clients win Social Security cases for over thirty years. Additionally, Brett Bunkall and Andria Summers have also won thousands of SSDI and SSI cases.
In the past 30 years, we have won over 20,000 SSDI and SSI cases for our clients. Our experts can help you file for SSI benefits using the SSA’s website. However, we will need your help to apply for SSI benefits. Why? Because only you know your personal financial information. SSI benefits require you to have minimal assets and monthly income.
Likewise, if you need an appeal, we can help you do that too. Don’t worry. If you have questions about a hearing decision, we will answer them. You can also learn more about SSA’s appeal forms here. Call us today for help winning your Social Security benefits.