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How to Appeal a Denial of Social Security Disability Benefits

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One of the most frustrating and maddening experience we can go through is in applying for Social Security disability benefits.  Everything, it seems is meant to frustrate and deny us the very benefits we have paid into all our working years.  How to Appeal a Denial of Social Security Disability Benefits

This section will provide information, help and links to additional resources in our battle.

Don't accept NO - and don't give up the fight.  Remember, most individuals are turned down the first time.

Pat

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What Disabilities Qualify for Social Security Benefits?

Under the rules of the Social Security Administration, a "disability" means:

An inability to perform substantial gainful activity by reason of a medically determinable physical or mental impairment, or combination of impairments, which has lasted or is expected to last at least 12 consecutive months, or end in death, taking into account the individual's age, education, and work history.

To qualify under this definition, you typically must be unable to engage in "work for pay", and you must have a doctor's opinion that you are presently disabled, with some manner of evidence (preferably a medical treatment history) to document the duration of the disability

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How to Appeal a Denial of Social Security Disability Benefits

SSD and SSI claimants who are not represented should call social security as soon as they receive a denial letter. After an appeal has been requested, the social security district office will mail the required appeal forms to the Claimant.

Claimants who are represented should contact their disability representative or attorney immediately. In almost all cases, a representative will complete the paperwork to appeal the denial and submit it to Social Security on the claimant's behalf.

However, even when a Claimant is represented, it still makes sense to call social security. Doing so will give a case a "protected date" and ensure that the deadline for the appeal has been met.

This will also provide some security in the event that appeal forms get lost in the mail.

Statistically, of course, denials that are pursued through the appeals process (versus filing a new application) will have a much greater chance of winning with a subsequent award of benefits.

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Social Security Disability Benefits - Appealing a Denial


Contents

What Appeals Are Available Following A Denial of Social Security Disability Benefits?

After your initial application for Social Security disability benefits is denied, and your application for reconsideration has also been rejected, the next step is a formal appeal of the denial. The appeal involves a hearing before an Administrative Law Judge, who provides an independent review of the decision to deny benefits.

If the initial appeal is also denied, you can next appeal to the Social Security National Appeals Council in Washington, DC.

If that appeal also fails, you may file a lawsuit to try to obtain benefits. The lawsuit would be filed in federal court.

What Happens At The Administrative Hearing?

Your formal appeal will result in your case being scheduled for hearing before an Administrative Law Judge (ALJ). The ALJ is an employee of the Social Security Administration. The ALJ makes an independent review of your application after a relatively informal hearing, and makes a decision on your claim.

The only people who are likely to be at the hearing are the ALJ, an administrative assistant who records the proceeding, the claimant, the claimaint's attorney, and any witnesses the claimaint has brought to the hearing. The ALJ may also call a medical or vocational expert to testify at the hearing. There is no "opposing counsel" at the hearing to claim that you don't qualify for benefits.

What Is the Social Security National Appeals Council?

The Appeals Council is based in Falls Church, Virginia, and reviews the decisions of the Administrative Law Judge. There is no hearing before the Appeals Council which can be attended by either the claimaint or the claimant's attorney.

What Happens In Federal Court

If you lose your initial appeals, you may start a lawsuit in federal court. This will be traditional, formal litigation, and the Social Security Administration will use a lawyer to defend against your lawsuit. If your initial lawsuit fails, you may appeal to the federal appeals court, and even to the U.S. Supreme Court.

Should I Use A Lawyer?

To maximize your chances on appeal, it is very helpful to use a lawyer who is familiar with the Social Security appeals process. However it is possible to pursue your administrative appeals without a lawyer. The Social Security Administration limits the amount an attorney can charge a client for Social Security proceedings (but not for appeals in federal court).

In the event that your initial appeals are denied, it can be quite difficult to prosecute a lawsuit in federal court without the assistance of a lawyer.

What Are My Chances On Appeal?

Your chances of obtaining the reversal of a disability benefits denial are quite good. Approximately half of appeals of disability benefits denials are successful.

Expert Law - Bringing Experts and Attorney's Together

http://www.expertlaw.com/library/pubarticles/Disabilities_Law/social_security_appeal.html

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Appealing a Denial of Social Security Benefits

http://www.hcvadvocate.org/hepatitis/hepC/appealing_a_denial.html

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Should I Appeal My Social Security Disability Denial? 

By: Gerald G. Lutkenhaus

http://www.miziuk.daytona-beach.fl.us/law-and-legal/should-i-appeal-my-social-security-disability-denial.php

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Social Security Reform Center

http://socialsecurityreform.org/fastfacts/index.cfm

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Fast Facts & Figures About Social Security 2011

http://www.ssa.gov/policy/docs/chartbooks/fast_facts/

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FILING A NEW DISABILITY CLAIM WHILE APPEALING A DENIED CLAIM 

By: Pitt Dickey - Attorney

Social Security Claims - An Administrative Law Judge has denied my disability claim. What do I do now? This column is going to explain what happens if your claim is denied by an Administrative Judge. To make the process easier to understand, the steps used by Social Security Administration (SSA) to make a decision whether to pay or deny a disability claim will be summarized. The primary focus of this column will be to discuss what your options are if a Judge denies your disability claim.

Filing a Social Security Disability Insurance Benefits claim takes time and patience. Disabled workers have plenty of time because they are not working, but donít have much patience for the same reason. The bills donít stop when you canít work. The SSA has four levels that can make a decision to pay a disability claim. This column will discuss those stages and will focus on what happens if an Administrative Law Judge denies a disability claim

When you apply for disability insurance benefits you start that process by contacting the local SSA District Office. You can call your local office and request they send you the Disability Application package for you to complete and return to that office. The local office will also set up your file and assist you in getting your application filed. The application covers such matters as your health problems, your medical care providers, and your work history. 

The completed package is sent to the Disability Determination Section (DDS). It is evaluated there to determine if the applicant meets the standards for the payment of disability benefits. The disability test can be summarized as follows: the person must no longer be working or earning above a very limited amount of monthly income; the person must have a medical condition which can be expected to last at least 12 months or result in death sooner; and the person must no longer be able to perform their past work or any other type of job that exists in substantial numbers in the national economy. 

The first level of decision-making is the DDS. The DDS gathers up additional medical and other information about the claimant and makes an initial decision. If the DDS approves the disability application, it will notify the applicant in writing that his claim has been approved. If the DDS disapproves the claimantís application, it will send a letter called the initial denial. The claimant has 60 days to appeal this denial in writing to request Reconsideration. 

More often than not, if the claims denied at the initial decision will be denied at the Reconsideration level. A reconsideration denial can be appealed within 60 days to an Administrative Law Judge. The Judge will give the claimant a new hearing on his claim and is not bound by the fact the claimant has been denied twice before.

The Administrative Law Judges are much more likely to approve disability claims than the first two levels of decision making by the Disability Determination Section. It is vital not to get discouraged and let the 60-day time to appeal for a hearing before a Judge pass without filing such an appeal.

However Judges certainly do deny claims and the rest of this column will discuss your options after a denial by a Judge. The Judgeís denial can be appealed to the Appeals Council that is in Arlington, Virginia. The Appeals Council reviews appeals of Judgeís denials of disability claims. The claimant does not actually get to appear before the Appeals Council. The decision is made by the Appeals Council solely on the appeal documents and documents in the claimantís file. Decisions by the Appeals Council can easily take more than a year to be issued. 

In addition to filing an appeal with the Appeals Council, the claimant can file a new claim with the local District Office of the SSA. This new claim can be filed while the Appeals Council is still deciding the denial of the first claim. The new claim will be sent to the DDS for review. The DDS can approve the new claim at the initial or reconsideration level while the appeal of the original claim is still pending. The DDS is limited to approving a disability onset date on a new claim to the day after the Judge issued his decision denying the original claim. 

A favorable decision by the DDS on a new claim will be forwarded to the Appeals Council to determine if there is new evidence in the new claim that might warrant the Appeals Council approving the pending claim on appeal. If the claimant is denied at the initial level on the new claim he can file a reconsideration request on the new claim on the same basis as any other claim. If the new claim is denied at reconsideration, the claimant can appeal the new reconsideration denial for hearing before an Administrative Law Judge on the new claim.

However the Hearing Office will not schedule a hearing before an Administrative Law Judge on a new claim until the Appeals Council has decided the appeal of the first denial by a Judge. If this sounds a bit complicated, it is. The important thing to remember is that you can file an appeal of a Judgeís decision and also file a new claim with the local District Office to be processed while the Appeals Council is processing the first denial by the Judge.

Notice: Since Social Security Disability is directed under Federal law, the information in this column will apply anywhere in the United States.  However each Office of Hearings and Appeals and District Office have their own ways of doing things as does the various Federal District and Circuit Courts.   I have kept this column primarily dealing the the mechanics of how the Social Security District Offices and Office of Hearings and Appeals evaluates disability claims. 
- Pitt Dickey

Pitt Dickey has practiced law in Fayetteville since 1978. He has handled SSA disability claims for over twenty years. He practices with the firm of Smith, Dickey, Smith, Hasty & Dempster, P.A. at 555 Executive Place and can be reached at 910-485-8020 or at pitt@smithdickey.com . Or at the firm web site of www.smithdickey.com .

http://www.seniormag.com/legal/disability-claim.htm

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Social Security Disability - How to Apply and Win Benefits

http://www.social-security-disability-claims.org/

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Social Security Disability - Frequently Asked Questions

National Organization of Social Security Claimants' Representatives

http://www.nosscr.org/faq.html

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How to appeal if your application for Social Security benefits is denied.


http://www.nolo.com/legal-encyclopedia/social-security-appeal-denied-claims-30167.html

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The Social Security Appeals Process

My Claim Has Been Denied! What do I do now?

You have the right to appeal a denial of your claim. If you wish to appeal, you must make your request in writing within 60 days from the date you receive your denial letter. The SSA will assume you receive the letter five days after the date on it, unless you can show them you received it later. Call your Social Security office if you need help with your appeal.

How Many Appeal Levels Are There?

There are three levels of appeal. They are (1) reconsideration, (2) hearing by an administrative law judge, (3) review by the Appeals Council and (4) federal ctheir t review.

When the SSA sends you a letter about a decision on your claim, the SSA will tell you how to appeal the decision.

Request for Reconsideration:

A reconsideration is a complete review of your claim by someone who didn't take part in the first decision. The SSA will look at all the evidence submitted when the original decision was made, plus any new evidence.

Most reconsiderations involve a review of your files without the need for you to be present. But when you appeal a decision that you are no longer eligible for disability benefits because your condition has improved, you have a choice of a file review or meeting with a Social Security representative to discuss your case. You can meet with a disability hearing officer and explain why you believe you still have a disability.

Request for Hearing:

If you disagree with the reconsideration decision, you may ask for a hearing. The hearing will be conducted by an administrative law judge who had no part in the first decision or the reconsideration of your case.

The hearing is usually held within 75 miles of your home. The administrative law judge will notify you of the time and place of the hearing.

You and your representative, if you have one, may come to the hearing and explain your case in person. You may look at the information in your file and give new information.

The administrative law judge will question you and any witnesses you bring to the hearing. You or your representative also may question the witnesses.

It is usually to your advantage to attend the hearing. If you don't wish to do so, you must tell the SSA in writing that you don't want to attend. Unless the administrative law judge believes your presence is needed to decide the case, he or she will make a decision based on all the information in your case, including any new information given.

After the hearing, the SSA will send you a letter and a copy of the administrative law judge's decision.

We strongly advice that you get a representative or lawyer to assist you if your claim reaches the hearing level.

Appeals Council:

If you disagree with the hearing decision, you may ask for a review by Social Security's Appeals Council. The SSA will show you how to ask for this review.

The Appeals Council looks at all requests for review, but it may deny a request if it believes the hearing decision was correct. If the Appeals Council decides to review your case, it will either decide your case itself or return it to an administrative law judge for further review. You will receive a copy of the Appeals Council's decision or order sending it back to an administrative law judge.

Federal Court Review:

If you disagree with the Appeals Council's decision or if the Appeals Council decides not to review your case, you may file a lawsuit in a federal district court.

You will likely need an experienced lawyer to successfully appeal your claim to the Federal Court. 

*Link no longer availablel

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Applying for Social Security Disability Benefits

http://www.expertlaw.com/library/pubarticles/Disabilities_Law/social_security_disability.html

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HOW TO FIGHT YOUR SSI OR SOCIAL SECURITY DISABILITY DENIAL (example)

http://www.lawhelp.org/documents/1511917401EN.pdf?stateabbrev=/WA/

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Electronic Disability Guide (eDG)

http://www.ssa.gov/disability/electronic_disability.htm

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Updated Dec. 28, 2011