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How to Appeal a Denial of Social Security Disability Benefits

OK, you have gone through the hassle of applying, endured the wait and frustrations and now find yourself denied.

What do you do now? Remember, as we said in our page How to Apply for Social Security Disability Income, it is possible to obtain SSDI when you have lymphedema.

Note: Appealing a Social Security Disabiltiy Income denial can be confusing and discouraging. However, many (if not most) claims are eventually overturned on appeal, making it worthwhile to continue the appeals process.

If you wish to appeal, you must make your request in writing within 60 days from the date you receive your letter or notice of denial.

So….take a deep breath, grab a cup of coffee and review the information carefully on this page. The information presented here is a compilation from a number of sites that are specialists in the Social Security appeals process.

Keep the faith!

Pat O'Connor

June 20, 2008

Social Security Disability Benefits - Appealing a Denial

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.

How to Appeal a Social Security Disability Denial

By Ashley Gurdon

If an individual applies for Social Security disability insurance and is denied there is an appeals process they can through in order for reconsideration of their application.

If an individual wishes to appeal the Social Security Administration’s decision regarding their application for disability insurance they can do so, however they must make their request in writing within 60 days from the date they received Social Security’s denial letter. The Social Security Administration assumes that the individual receives their letter five days after the date posted on the letter, unless an individual can show them they received it later. There are generally three or four levels of appeals; the first being reconsideration, second is a hearing by and administrative law judge, third is a review by appeals council and lastly is a federal court review. When the Social Security Administration sends an individual their letter about their decision on their claim they give them instructions on how to appeal the decision.

The first level of appeal

The first level of appeals is reconsideration. Reconsideration is a complete review of the individual’s application by someone who didn’t take place in the first decision. The individual at the Social Security Administration reviewing the application will look at any evidence submitted when the original application was sent in and also any new evidence. Most of reconsideration reviews are done without the individual present, however if the individual is appealing a decision that they are no longer eligible for disability insurance because their condition has improved, they can meet with a Social Security representative to explain to them why they believe they still have a disability.

The second level of appeal

The second level of appeals is a hearing by an administrative law judge. If an individual disagrees with the reconsideration decision, they may ask for a hearing. The administrative law judge conducting the hearing is one who had no part in the first decision or the reconsideration decision in the individual’s case. The hearing is held usually within 75 miles of the individual’s home, and the administrative judge notifies the individual of the time and place of the hearing. The individual and their representative (if they have one) may come to the hearing to explain their case to the judge in person; they may look at the information in their file and give any new information that they have. In order for the administrative law judge to make his/her decision they will question the individual and their witnesses they bring to the hearing. Other witnesses such as medical and vocational experts may also give the judge information at the hearing. The individual or representative then also may question the witnesses. It is usually to the individuals advantage if they attend their hearing, however if they chose not to do so they must notify the Social Security Administration in writing that they don’t want to attend. In some situations they hearing may be held as a video conference rather than in person. The individual will be notified ahead of time if this is the case. A video conference is often more convenient for the individual, it also is usually faster to schedule a video conference than an in-person hearing. Lastly the video conference may also make it closer to their home so it would make it easier for the individual to have witnesses and others accompany them. Unless the administrative law judge believes that the individual presence is needed to decide the case he or she will make their decision based on all the information in the individual’s case and that’s including any new information. Lastly when the administrative law judge has reached their decision the individual will be sent a letter and a copy of the administrative law judge’s decision.

The third level of appeal

The third level of appeal in denial of Social Security disability benefits is an appeals council. This level of appeal happens when the individual doesn’t agree with the hearing’s decision they make ask for a review by the Social Security’s Appeals Council. The Appeals Council looks at all requests for review, they can however deny a request if they believe that the decision of the hearing was correct. If the Appeals Council decides to review the individual’s case it will either decide the individuals case itself or it will return it to an administrative law judge for further review. If the Appeals Council denies the individuals request for a review they will send the individual a letter explaining the denial, if the Appeals Council makes a decision on the case the individual will be sent a copy of the Appeals Council’s decision, and lastly if the Appeals Council returns the case to an administrative law judge for further review the individual will receive a letter and a copy of the order for further review from the Appeals Council.

The fourth level of appeal

The last level of appeals is federal court. If the individual disagrees with the decision of the Appeals Council or the Appeals Council denied request for a review of their case, the individual may file a law suit in a federal district court. The letter that the Social Security Administration sends to the individual explaining about the Appeals Council’s action will also have information regarding how to ask a court to look at the individual’s case.

An individual may still be eligible to receive disability insurance while the Social Security Administration makes a decision on their appeal if, the individual is appealing a decision that they can no longer get Social Security disability benefits because their medical condition is not disabling or, if the individual is appealing the Social Security Administration’s decision that they are no longer eligible for SSI payments or that their SSI payments may be reduced or suspended. If the individual wishes to continue receiving benefits they must notify the Social Security Administration within ten days of receiving the administration’s letter. If the individuals appeal is turned down they might be required to pay back any money they were not eligible to receive.

An individual appealing a Social Security disability denial has the right to have a representative help them in their appeals process. The Social Security Administration offers free help with the appeals process however the individual may also opt to have a lawyer, a friend or someone else to help them. The Social Security Administration will work with the individuals representative in all the steps to appeal, the representative can act for the individual in most Social Security matters and will also receive copies of any decisions made about the individuals claim. The representative however cannot collect any fees from the individual without prior permission of the Social Security Administration. Rules about representation can be found on the Social Security Administration’s website.

In order to contact the Social Security Administration for further information regarding a denial of disability insurance their website at www.ssa.gov is a very useful resource of information they also have a number of things the individual can do online. The individual can also contact the Social Security Administration directly by calling them at 1-800-772-1213.

Article Source

You May Choose Someone to Represent You on an SSI Appeal

Representation can be provided at all levels of appeal. This person may be an advocate, parent, attorney, or other individual who is familiar with SSI and your specific situation. SSI will work with this person just as they would with you. This person can come with you or go for you to any interview, conference, or hearing. They may help get information from your SSI file such as medical records or statements from teachers or other support specialists. You can even have more than one representative if you choose. Your representative(s) cannot charge or collect a fee from you without first getting written approval from SSA.

Once you choose a representative, you must inform SSA in writing as soon as possible. To do this, you can get a Form SSA-1696-U4, Appointment of Representative, from any Social Security office.

You must give the name of the person you are appointing and sign your name. If the person is not an attorney, he/she must, in writing, give his/her name; state that he/she accepts the appointment; and sign the form.

Your representative will receive a copy of any decision made on your disability claim and assist in determining whether an appeal would be to your advantage. Your representative can:

  • Review what is in your file.
  • Identify and obtain missing information about your disability.
  • Request a reconsideration, hearing, or Appeals Council review for you.
  • Help you and any witnesses prepare for an appeals hearing.

How to Appeal Basics

How to React if a Supplemental Security Income case is Denied

If your claim for social security disability benefits is denied at either the intial or reconsideration levels, you should not panic. Though it's an unfortunate fact, most claims for social security disability and ssi benefits are denied at the Initial level (60-70%). Even more are denied at the Reconsideration level (80-85%).

And the basic reality regarding SSA's disability system is simply that if an ssd or ssi benefit claim is denied once, it will usually have to go to a disability hearing before an Administrative Law Judge before it can be approved.

This is mainly because the middle step between the Initial Claim and Disability Hearing levels—the reconsideration—simply, in most cases, amounts to no more than a rubber stamping of the initial claim denial.

With this reality in mind, if you are denied for social security disability or ssi you should not doubt the strength of your case, or the severity of your impairments. Simply realize that most disability claims are turned down, making it necessary for appeals to be filed.

Therefore, as soon as a denial letter is recieved, immediately contact the social security office where you originally filed your social security disability or ssi claim and request the appropriate appeal. If you have representation, let your attorney or non attorney representative handle this for you.

If you were denied at the initial claim level, the appeal to ask for is a request for reconsideration.

If you were denied for ssd or ssi disability at the reconsideration level, the appeal to ask for is a request for hearing before an administrative law judge.

How to request the first appeal for your Social Security disability case

The first appeal available to a Social Security Disability claimant who has been denied for benefits is the Reconsideration (except, of course, in those states where the recon stage has been suspended as part of a test project). The actual forms needed to initiate this appeal are known as the Request for Reconsideration and the Reconsideration Report.

Completing the paperwork for a reconsideration is a fairly simple and easy thing to do. But a reconsideration must be completed and submitted within 60 days of the date of the Initial Claim's denial.

A failure to appeal within the 60 day timeframe will result in an “untimely appeal”…meaning, essentially, that a claimant for social security disability will be required to start over at the very beginning; i.e. file a brand new ssd or ssi claim.

There are, certainly, exceptions to this rule, exceptions that fall under the umbrella of a concept referred to as good cause. Such exceptions generally include illness, hospitalization, or other extenuating and plausible circumstances that might account for the late filing of a social security disability or ssi disability appeal.

Without “good cause”, however, a Request for Reconsideration that has been submitted in an untimely manner will simply be rejected.

Failing to submit an appeal within the specified deadline is counter-productive and a waste of valuable time. This is particularly true since any new applications filed by a disability claimant will likely be denied as well (for the same reasons as the first denial) and take just as long to process (several months, in most instances).

In the vast majority of social security disability and ssi cases, claimants will have their best chance for being awarded benefits (monthly amounts and backpay) at a hearing held before an Administrative Law Judge. However, an ALJ hearing can only be requested after the denial of a Reconsideration appeal (and Reconsiderations have a notably high denial rate, approximately 80-85%).

Filing a request for a Social Security Disability hearing before a judge

The Request for Hearing (before an Administrative Law Judge) is the second step in the Social Security Administration's disability appeals process (except, of course, in those test states where the reconsideration step has been suspended) and is handled similarly to the Reconsideration.

Simply contact the Social Security office and request the appropriate appeal forms.

Claimants with disability representation should call their attorney or non attorney Representative. Once the office handling their representation is aware of the Reconsideration denial, the Request for Hearing should be submitted shortly.

How does the disability hearing request process work, exactly?

The request is submitted to the social security office which then forwards the request and the claimant's file to the appropriate Office of Hearings and Appeals.

Sometime after a case has been transferred to OHA, it will be assigned to an Administrative Law Judge who will schedule the case for a hearing date.

Typically, this process takes a number of months (the amount of time will depend on the hearing office, as some OHA locations have more cases and greater backlogs than others).

Of course, while a social security disability or ssi claimant's file is at the Office of Hearings and Appeals, the local social security office will be able to provide very little information regarding the status of a claim.

For this reason, ssd and ssi claimants wishing to know the status of their hearing request should have their representative call OHA on their behalf.

Finding an attorney representative for your Supplemental Security Income disability claim

Having the right help on a social security disability case can very easily make the difference between winning and losing a claim for benefits.

This is particularly true if the case is scheduled for a hearing before an Administrative Law Judge.

With this in mind, deciding the issue of representation and which representative will handle your ssd or ssi disability case is no small matter.

Social Security Disability Representatives can be found in a variety of different listing sources. The yellow pages, internet, legal aid, and the referral service operated by each state's bar association can be useful means for locating qualified representation.

How do you determine whether an attorney, or non-attorney, disability representative is especially suited to handle your social security disability or ssi disability case?

The most effective means by which to gather such information is simply to contact a representative's office and ask questions.

Typically, most individuals engaged in the profession of handling social security disability and ssi claims are fairly busy, due to the large number of claims moving through the system.

For this reason, many claimants share the common complaint of getting meager individualized attention from the attorney or non-attorney who represents them.

Despite this reality, though, claimants can generally gauge the effectiveness of a “potential representative” through initial contacts with their office. For example, is the representative accessible?, does the representative return calls?, does the representative sound knowledgeable and experienced in the matter of social security disability and ssi claims?, etc, etc.

Good representation can be obtained from an attorney or a non attorney representative (many of whom are former disability examiners and social security claims reps). But regardless of the type of advocate chosen, a qualified advocate can make the difference between not winning a case and winning a claim for monthly disability benefits and backpay.

Tip: if your claim for ssd or ssi benefits is denied at the initial claim level, get someone to take your case immediately because, most likely, you will be faced with navigating the major components of the SSA disability appeal process (the reconsideration and ALJ hearing).

One of the few national directories of Social Security Disability Representatives can be found on this web site.

How to get a disability hearing scheduled faster

Getting your social security disability hearing scheduled faster can be somewhat difficult.

However, there are at least a couple of ways to potentially do this.

The first way to potentially speed up your disability hearing is to send a Dire Need letter. In a dire need letter, an ssd or ssi disability claimant points out the severity of their financial circumstances.

In many instances where an individual is in danger of losing access to needed medications, or in danger of eviction or foreclosure, the Hearing Office may choose to expedite an ALJ disability hearing.

Claimants whose situations are especially precarious should draft a detailed dire need letter and forward this to the Office of Hearings & Appeals (OHA) where their hearing is waiting to be scheduled. To this letter should be attached copies of late notices from landlords, mortgage companies, and utilities providers.

A social security disability case for which a hearing has been requested may also be expedited by requesting what is known as an on-the-record review. An OTR review is simply what its name implies. The claimant or the claimant's representative simply requests that the hearing office review the claimant's file, or record, prior to a hearing date.

The desired outcome of such a review is that the claimant's case will be approved without the necessity of waiting for and holding a hearing. Of course, it goes without saying that for an on-the-record review to be granted a claimant's medical evidence must be particularly compelling. In many instances, an attorney or non attorney representative will not entertain the prospect of requesting an OTR review unless a claimant's condition has significantly worsened and this can be supported by medical evidence.

Another way to potentially expedite a disability hearing is to contact the office of a Congressman or Senator. This will launch what is referred to as a congressional inquiry.

Such inquiries typically involve a congressional staff member either calling or writing the hearing office on a social security claimant's behalf.

Congressional Inquiries often have mixed results. But they never hurt a case, and, typically, if they benefit a case, it is at the hearing request level.

Presenting yourself before a Social Security Disability judge

ALJs, or Administrative Law Judges, decide cases mainly on the weight of the medical evidence—which includes xrays and other imaging, lab panels, treatment notes, as well as statements from physicians written on behalf of a social security disability or ssi disability claimant.

However, a Claimant's testimory is taken into account as well.

For this reason, responses to a judge's questions should be full, forthright, and honest. Care should be taken by a claimant not to exaggerate in any way the limitations caused by a physical or mental impairment. ALJ's who hear disability cases hold hundreds of hearings each year (sometimes holding as many as 4-6 hearings in a single day) and are particularly adept when it comes to spotting such attempts.

By the same token, though, ssd and ssi Claimants should never minimize the extent to which their impairments affect them daily.

Therefore, if a claimant's condition, or the pain resulting from that condition, has the effect of restricting the range of motion in a particular joint, the level of strength in a muscle or extremity, or interferes with a claimant's ability to sit, stand, stoup, crouch, reach, grasp (etc, etc) or even sleep for lengthy periods (back pain often has this effect), this should be pointed out to the judge hearing the disability case.

In all cases, the best presentation will simply be candid and honest.

What types of questions are asked of disability claimants by ALJ's. Potentially, there's no limit to the type of questioning a disability judge may employ. Typically, though, questions will regard the most obvious factor surrounding a case: how does the claimant's medical condition, or set of conditions, affect them on a daily basis and how do these functional limitations limit the ability to return to past work, or engage in any other kind of work.

Lastly, though it should always be done in consultation with an attorney or representative, disability claimants are always given the opportunity to have other individuals present at the hearing who may, at the discretion of a judge, give testimony regarding a claimant's condition and limitations.

What medical resources are acceptable when proving you have a disability?

Keep in mind that when applying for any disability you need to make sure the medical information you provide comes from an acceptable source. If a physician is treating you, that he or she must be a licensed M.D. (Doctor of Medicine). If you are seeing an eye doctor or a psychologist make sure they have the proper credentials for being an acceptable resource, otherwise the information they provide to your case is useless. This also means you will have to see another physician and/or specialist which is bound to mean more time and money out of your pocket.

If you are already seeing someone about your condition take time now to inquire about his or her credentials. They know about you intimately, you pay them, so you can ask questions about their qualifications to treat you. If you have not made your first appointment remember to check into his or her (physician, other) qualifications before you make your first appointment. If they are not licensed in the state in which they practice, they will not be considered a reliable resource when it comes to proving you are disabled. They must hold the proper degrees, because alternative sources (non-medical, not licensed) will not qualify as an acceptable source.

Top 5 Reasons People Get Denied Social Security Disability Benefits

People get denied Social Security Benefits for many reasons. The following is a list of only a few examples of ways to get denied.

1. You make too much money. If you earn more than $940 a month, you will be denied SSDI outright. $940 is the limit to the amount of Substantial Gainful Activity (SGA) that can be performed.

2. Your disability will not last at least 12 months. If Social Security determines that your disability is not severe enough to last at least 12 months or result in your death, you will be denied.

3. You do not follow treatment prescribed by your doctor. If your doctor has prescribed treatment or therapy that is expected to improve your condition, you must follow it, or you will most likely be denied. A few exceptions to this rule do exist. A few of them are listed below.

You can not pay for treatment. It is against your religious beliefs. The doctor prescribes treatment that is not effective. You have a mental illness that prevents you from following the prescribed treatment.

4. You do not comply with the SSA or DDS’s requests for information or medical records. Social Security will send you numerous forms and questionnaires to fill out that are meant to help them get a better idea of how your limitations affect your ability to work. DDS will also send you questionnaire’s and may even send you to a consultative exam (CE) to be evaluated by a doctor that they choose. If you are not forthcoming with requested information, or you fail to attend a CE, you can be denied.

5. Social Security is unable to locate you. If the SSA can not find you, they will be unable to assess the severity of your condition, and consequently, will deny your case.

As you can see, there are many potholes along the road to receiving disability benefits. A qualified attorney can help you navigate the tretcherous path to a successful claim. If you need assistance attaining the benefits you desreve, click here for a Free Social Security Disability Case Evaluation.

Social Security Disability Help

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