Business Guide

Lesson Five
The Social Security Appeal Process

This lesson discusses the Social Security disability appeals process at the Administrative Law Judge level.  For Social Security data on the hearings and appeals process, click Here.

Overview of Appeal Process:

In previous lessons, you were shown the basic steps in applying for an Initial application and a Reconsideration appeal.  A few months after you apply for an appeal, you'll usually be notified by mail of Social Security's decision in an Reconsideration case.  If the decision is an allowance or a reversal of the previous denial, you would submit your fee petition authorization to Social Security and bill the client for services rendered.

If the decision on the Reconsideration level is a denial, you must then apply for the next appropriate appeal level.  The next appeal level after the Reconsideration appeal is the Administrative Law Judge (ALJ) appeal.  The Adjudicative law Judge (ALJ) appeal is followed by the Appeal Counsel level.  We do not recommend that you represent a disability case at the Appeal Counsel level.  Disability Associates does not provide training for the Appeal Counsel level which is best left to an attorney.

What Happens on Appeal

Generally, when you receive a denial notice in a disability case, the claimant will have also received a copy of this same notice.  He/She will be wondering what is going to happen next.  To ease the claimant’s anxiety in this situation, you should contact and inform the claimant that a denial at the reconsideration level is not the end of the story.  If a denial occurs at the reconsideration appeal level, your next action will be to apply for an ALJ appeal. 

If the client wishes to continue with your services, have him sign another 1696 and begin the appeal process.  You should also inform your client about your plan of action at the appeal level.  For best business practice, relay this strategic information to the claimant both verbally and in writing.  This will encourage the claimant to continue your services.

Requesting an Administrative Law Judge Appeal:

Requesting an Administrative Law Judge (ALJ) appeal is relatively easy. You must prepare a written appeal request letter or submit an SSA Form 501 - ALJ Appeal Request form to the Office of Hearings & Appeals.  The office of Hearings & Appeals is usually located in your local district or regional Social Security office. Where an office is located depends upon the size of the state and the number of satellite offices available.  At the same time that you send the ALJ a request for appeal, you must also begin acquiring evidence and creating or updating your formal argument. 

To apply for an ALJ appeal you must send a signed:

1.      ALJ request letter or SSA Appeal Request Form 501 to SSA.

2.      Copy of your formal argument or memorandum to SSA.

3.      An advocate action update letter to claimant. 

4.      If there is new evidence or a new allegation, evidence for these must be requested or acquired.

It's best that all of the above correspondence be sent out at around the same time, although this is not absolutely necessary.  If for example you wish to send the request for appeal form before the formal argument is prepared, you have just ten days to submit the formal argument if it is to be considered at the ALJ appeal. You can of course, request additional time to review the evidence before submitting your argument.

If additional evidence is going to be submitted to the ALJ for consideration, let the Judge know.  Try to gather and submit a copy of the additional evidence to the Judge as soon as possible. You have sixty-days from the date of the previous decision to request an ALJ hearing.  Therefore, if possible, use this time to collect and prepare your case before requesting the hearing.  This approach will give you a little more time to prepare your argument as you gather the supporting evidence.

Approaching an ALJ Appeal: 

If you request a face-to-face hearing at the ALJ appeal level, it may be some time before the actual hearing takes place.  This approach has advantages and disadvantages listed below:

Advantages of a face-to-face hearing:

1.      ALJ can see client’s physical limitations and make an emotional judgment.

2.      The Representative can immediately clarify any conflicts within the evidence.

3.      Claimant has the opportunity to speak on his own behalf.

4.      If case is allowed, there will probably be a larger Representative fee because of the time that has elapsed since the onset of the impairment.

5.  Most cases are won at the ALJ appeal level.

Disadvantages of the face-to-face hearing:

1.      Takes forever to get a hearing scheduled because of the tremendous backlogs of cases in many states.

2.      If the judge doesn’t like the claimant or Representative, this may prejudice his decision.

3.      Some Representatives are to shy to present a case face-to-face.  Poor presentation skills should never be the primary reason to avoid a face-to-face hearing.

4.  A face-to-face hearing may involve unwanted travel.

Extension of the Appeal Request Deadline:

If, as a newly appointed representative, you find that the claimant has run out of time to request an appeal at the Reconsideration or ALJ levels, you can request a "good cause" extension.  Extension of an appeal simply means that Social Security will accept an appeal even though the sixty-day time limit has either mostly or completely expired.  Social Security considers the following situations (among others), as good cause for an appeal request extension:

A. Social Security's actions misled or confused claimant's understanding of
     his/her right to appeal.

B. Claimant was seriously ill and unable to act on an appeal request.

C. There was a death in the claimant or representatives family.

D. Important records were destroyed or damaged.

E. Claimant received incorrect or incomplete information from Social Security
     concerning when and how to request an appeal.

F. Claimant did not receive notice of the previous denial decision.

Any unusual or unavoidable circumstance that could have prevented a timely request for an appeal will probably be accepted by Social Security.  As the claimant's representative, you may use these and any other appropriate reasons to extend the appeal application deadline.

Try to get Social Security to allow the appeal step to proceed, as opposed to having the claimant start all over again at the initial level.  The reason I make this suggestion is keep your business focused on efficiency.  Since the case has already been developed and adjudicated at least once by Social Security, you might as well save time and pursue a decision from where you are in the case.  This does not mean that you give up your adjudicative advantage. You derive your adjudicative advantage by using new evidence that supports either a new allegation, new limitations or both.

Time Limit for Appeals:

The rule and time limits are exactly the same for all appeal levels.  You have sixty-days after receiving a notice of an initial or reconsideration denial, to submit a request for an ALJ appeal.  If for some reason you cannot make application in-time, you should request an extension on behalf of your client.  Keep in mind that you must have a "good cause" to extend the appeal request deadline.

Waiving Personal Appearance (Face-to-Face Hearing):

If you wish to avoid going to a face-to-face Administrative Law Judge hearing, then you must request a waiver.  The waiver must be submitted in writing or by using SSA Form 4608.  The waiver should specifically request that the ALJ make the case decision "on-the-record".  This "on-the-record" request will inform the ALJ of your client's intent to waive your right to a face-to-face hearing.

Making an on-the-record request usually results in a faster ALJ decision. The reason for the faster decision is because a face-to-face hearing is not scheduled.  A face-to-face hearing must be scheduled and attended before any action is taken in the case.  It can take months for a hearing to occur.  In an on-the-record case review, the claimant's case folder is sent directly to the ALJ.  The ALJ reviews the available evidence in the client's folder and makes a decision. You save time because no face-to-face meeting had to occur before the ALJ reviews the case.  It is the face-to-face meeting itself that can add months of processing time to a case at the ALJ appeal level.

Hearing Considerations:

At a face-to-face hearing, you'll be given the opportunity to present your argument orally before the ALJ.  Needless to say, an oral presentation would be nice for some and a waste of time for others.  Experience has shown that requesting an ALJ review with waiving of right to appear is the fastest and most efficient way of presenting an ALJ argument. This approach may also eliminate some of the judicial prejudice you might otherwise experience.

However, some of you may want to present your cases in person.  The two secrets to a successful hearing are:

1.      Not allowing your self to be intimidated by the process.

2.      Keeping your focus on the issues in the case.

You will discover that more cases are won at the ALJ appeal level than on any other adjudicative level. Why?  Because the ALJ has the power to award benefits for reasons that are not limited by Social Security's internal policies.

The ALJ requests Your Presence:

It is possible, although not likely, that the Administrative Law Judge will request that you appear before him despite your request for waiver of the face-to-face hearing.  If this occurs, you must be sure to attend the hearing.  It's not all that bad!  Before attending the hearing, review your formal evaluation of the case and be prepared to answer whatever questions the judge may ask. Try to make sure your answers are in line with your argument and stick by your opinion.

If an ALJ requests your appearance and you cannot attend, be sure to inform him in writing. Explain in the letter why you cannot attend.  Most judges are understanding and will go ahead and make a decision on-the-record or reschedule the hearing.

To acquire reimbursement, you fill out and submit a request for reimbursement form at the District or Hearings office in which the hearing occurred.  Reimbursement is not subject to the outcome of a case. Win or lose, if the ALJ has requested your appearance despite your request to waive, you're entitled to travel reimbursement.

See the “Free Travel” segment in the online instructional syllabus.

The Face-to-Face Hearing:

A face-to-face hearing is defined as an informal opportunity to present facts to a Hearings Officer or an Administrative Law Judge on behalf of your client. Your presentation (written and oral) should include the facts of the case.  Be sure to inject the limiting affects of any previously overlooked, new, undervalued or misinterpreted impairment into your face-to-face argument.

Each hearing can be different in that there is no written procedure for an ALJ presentation. The ALJ will usually request your statements and ask you questions concerning the case. You're not a lawyer and should not allow the ALJ or anyone else to make you feel as if you should be.

The hearing may include a Vocational Specialist (VS).  The VS is there to argue that your client is capable of performing his past or other work despite his impairment.  With all of their fancy language, I have found that my common sense approach is highly effective at beating most Vocational Specialist.  The common sense approach to vocational analysis is hard to argue against. 

Example:  The VS say's that your client can return to other less demanding work.  The VS provides three job titles that he feels the claimant can perform.  You've never heard of these jobs, but you know what your client's limitations are.  You counter the VS by pointing out that the jobs he has listed are not within your client's capabilities because these jobs still require (A, B C and D) in order to perform the jobs properly. 

Example advocate statement:  As a result of my client's primary and secondary impairments, he is not capable of the physical actions required in any of these three jobs.  These three jobs require standing, walking, bending stooping, etc, all or some of which are outside of my client’s capability.  The VA will counter your statement. You then counter his statement no matter what he says, by summarizing the client's physical and or mental limitations. 

It is also effective to make fairness states like:  “In all fairness to the claimant your honor, he cannot be expected to perform these types of jobs and sustain this work over a period of time.”

Preparing for a Hearing:

Here are a few suggestions to help you prepare for a hearing:

1)  Don’t allow yourself to be intimidated by the proceedings. You're the claimant's authorized representative and you have both the right to be there and to be treated with respect.  If you're not treated with respect, this would be grounds to appeal the proceedings and request a change of ALJ.

2)  Read and summarize the facts of the case carefully. Outline your argument, listing the facts that best support your claimant's position. These facts may include doctor's statements, hospital admission records, operative notes and written statements from individuals who have witnessed the restrictions caused by the claimant's condition.

3)  If a statement in file contradicts your position, don't panic. The claimant's condition may have changed or the statement may simply be incorrect.  If you note contradictions in the evidence, prepare an explanation before going to the hearing.

4) Consistency of treatment is important!  If the claimant was not treated for a condition on a consistent basis, have an explanation for this occurrence. 

5)  When presenting your case orally in front of a Hearings Officer or Administrative Law Judge, make sure you do at least the following:

a)  Point out when the claimant became totally disabled.

b)  List the claimant's alleged impairments, starting with the primary diagnosis.

c)  Point out when the impairments began and how each progressed to the point of preventing work.

d)  Discuss how the impairment interferes with the claimant's normal daily activities.

e)  Explain how the impairment affects claimant's ability to perform any type of work.

f)  Present medical evidence that supports each restriction you have alleged. List the medical sources in chronological order in your argument to make it easier for the ALJ to follow the sequence of events.

g)  Have a written summation of your argument on hand to present to the Administrative Law Judge at the hearing that is consistent with your oral presentation.  Do this even if you have already mailed a previous copy of your argument to the judge.  This allows you to present an addendum to your argument at the last minute.  If your evidence addendum is medically supported, this may be what the case needs in order to win.  The ALJ will read your addendum and use it in his decision.  This approach is one of our most effective techniques for winning hearings level cases.  

h)  List any efforts made by the claimant to return to work in your summation (if appropriate).  This shows the Judge that your claimant is not a deadbeat.  If the Administrative Law Judge believes that the claimant would prefer to work, this helps to build case credibility in the eyes of the Adjudicative Law Judge.  This approach is another of our most effective techniques for winning hearings level cases.  

i)  Start a hearing by rebutting or emphasizing evidence used by SSA in the previous denial decision. Then add strength to your argument by bringing in any new or overlooked evidence that supports your position. 

At the Administrative Law Judge hearing itself, be polite, professional and firm in your opinions even if the judge disagrees with you.  Keep in mind that no matter how much experience you have in this field, you'll still make mistakes.  Learn from your mistakes and use them to make yourself a better advocate in the future. Don't let your mistakes discourage you from reaching your goals as a disability advocate. Your first few hearings will prepare you for all future hearings by sharpening your skills and increasing your confidence.  The more hearings you do, the better at it you will become!
 

If Your Authority is Challenged

If you're questioned as to your qualifications to represent a case, point out that Social Security's rules do not restrict non-attorneys from acting as a representative regardless of the advocate’s background.  In short, you have every right to represent!  Do not be shy on this point!  If necessary, point out that the code of federal regulation 410.685 specifically allows a person to act as a representative if that person meets Social Security's basic qualifications.  Personal challenges of this type are rare, but it doesn't hurt to be prepared for them.

What to Expect:

After a hearing, the ALJ has ninety-days to issue a decision in the case.  This process could take longer if you bring up new allegations that have not been medically evaluated.  The judge may also feel that more medical development is needed before he/she can make a decision. If this occurs, the judge may request an additional examination before issuing a decision.  This will of course prolong the outcome of the case.

Even thought this action can slow the case, it is your responsibility to look out for the interest of your client.  If the judge wants additional evidence, do what you can to help him to get it quickly.  Do not hesitate to bring up additional allegations and/or evidence if appropriate.  This is especially true if the evidence can help you to win the case.

If additional case development is requested by the Administrative Law Judge, you'll be notified at the hearing or by mail.  If you can get the evidence faster than Social Security, do so.  Also keep in mind that the longer the case takes to finalize, the more likely there will be back benefits.  Send a copy of any new or additional evidence directly to the Judge if you get it before he does. 

If you feel that an additional examination or testing is unreasonable, be sure to let the judge know in writing.  Be careful here.  Do not challenge the opinion of the judge unless your position is strong.  More often than not, a decision will be made on the evidence in file and the result will be forwarded to you and the claimant within ninety-days.

Allowance Decision:

If the decision in the Administrative Law Judge appeal is an allowance or is partially favorable to the claimant, submit your fee petition request form to SSA and bill the claimant.  A partially favorable decision means that the Administrative Law Judge agreed that the claimant is disabled, but disagreed with onset or some other factor that might affect the amount and/or length of time claimant receives benefits.  A partially favorable decision is better than nothing and you'll still get paid!

Denial Decision:

If the Administrative Law Judge (ALJ) decision is a denial, the case is over!  You would not submit a fee petition in this circumstance.  At this point, you're essentially finished with the case unless you strongly disagree with the Administrative Law Judge decision.  I once had a case were I felt the Judge was being extremely unreasonable.  I requested a new hearing with a different judge.  I finally won the case, but made an enemy of the judge.  This is OK, but keep in mind that you may face that same judge again in a different case. You do not want to burn bridges unless you absolutely need to in order to serve your client.


Appeal Council Review:

If you feel that the claimant was not given a fair evaluation or you strongly disagree with the Administrative Law Judge's decision, you may want to advise the claimant to consider taking the case to the Appeal Council level for review. 

In this situation, the claimant has three basic options:

1.      Give up trying to win disability benefits.

2.      Start the application process all over again from the beginning.

3.      Apply for an Appeal Council review of the Administrative Law Judge decision.  If the claimant chooses to fight the Administrative Law Judge decision at the appeal counsel level, he'll need an attorney to represent him.  It is a good idea to have an attorney that you like so that you can provide a referral.

If the case reaches this stage, you may suggest to the claimant that he hire an attorney with experience at representing cases before the Appeal Council. This training course is not intended to train advocates to go beyond the Administrative Law Judge appeal level, although it is legal for you to do so. 

If a claimant does ask that you represent him in this situation, you must inform the claimant that there will be an additional fee determined by you.  If you represent the claimant at the Appeal Council level, you will not receive any fee until the outcome of the council review.  Do not submit your fee petition in this situation until after the Appeal Council decision.

When you receive an Administrative Law Judge decision, it will contain an explanation of why the Administrative Law Judge thinks the claimant is not disabled. You must then attack the Administrative Law Judge's reasoning on this issue in writing and submit the argument or brief to the Appeal Council.  Be prepared to go before the Council and orally present your argument.

Detailed instructions for Appeal Council procedures and regulations are outlined in reference source: CFR 416.1467. You can go online or to your local library and review this reference in its entirety.

Keep your Client Informed:

Communicating often with your clients is extremely important to the perceived quality of your service. Our experience has shown that the better informed a claimant is, the more satisfied he/she will be with your service regardless of the outcome of the case. Try to incorporate methods of good communication between yourself and any claimant you represent.  This single action can go a long way toward helping you to build a lasting and successful advocacy service.

Preview of Lesson Six:

In lesson six, we'll discuss the representative fee structure.  This lesson will provide information on the various fee approaches available to the disability advocate. 

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