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Application & Appeals Process - Social Security Disability

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Legal Author - Travis Hansen, Esq.
Updated - September 1, 2025

checkmark Overview

Before Social Security, there are four disability benefit adjudication/decision levels. This is true whether your case is a Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) disability case. At any level, you can receive one of four types of decisions as follows:

  1. Fully favorable (Social Security found you disabled and awarded you all the benefits to which you are entitled),
  2. Partially favorable (Social Security found you disabled but awarded you part of the benefits to which you are entitled),
  3. Unfavorable (Social Security found you not disabled), and
  4. Technical denial (Social Security denied your claim because you missed a deadline or did not meet non-disability eligibility rules).

checkmarkOn This Page

  1. Overview
  2. Initial Application
  3. Appeal & Reconsideration Process
  4. Appeal & Hearing Process
        - What Happens at a Hearing
  5. Appeal & Appeals Council Process
  6. Appeal & Federal Court Process

If you receive a denial or an unfavorable decision and you do not appeal, your case ends. If you receive a denial or an unfavorable decision and you do appeal, your case will be adjudicated at the next level. If you receive a partially favorable decision at any level, and you do not appeal, your case ends, and Social Security will process your benefits. If you receive a partially favorable decision at any level, and you appeal, your case will be adjudicated at the next level. In this case, you will receive the benefits you were awarded, you will appeal the part of the decision that denied you your remaining benefits, and you will put the benefits you did received at risk (the Social Security Administration can take them away if you lose altogether at the next adjudication level). If you receive a fully favorable decision at any level, your case is complete, and Social Security will process your benefits. The claims process is as follows:

  1. Filing an application at the Initial level,
  2. Reconsideration level,
  3. Hearing,
  4. Appeals Council (AC), and
  5. Federal court.

A filing in federal court will not be a claim with the Social Security Administration; it will be with federal district court in the area in which you live. If you are successful at federal court, the court will send your case back to the Social Security Administration to again review your case.

checkmark Initial Level Application/Process

Overview

When you apply, Social Security will request information from you, review your case, and make a determination. Social Security will send you, and your attorney/representative if you have one, a written notice of the initial determination which will state the decision, the reasons for the decision, the fact that the decision is binding if not appealed, and your right to appeal the decision if it is not fully favorable.

How To Apply

When to File. You can file anytime. Do not wait to file an application if you become disabled.

How to File. You may file online, in-person, by mail, by email, or by fax. Social Security prefers you apply in-person or online. If you do not file in-person, Social Security will contact you after you apply and schedule an appointment with you to obtain additional information.

Where to File. The application may be filed at a Social Security office, a Railroad Retirement Board office if you have ten or more years of service in the railroad industry, or a Veterans Affairs (VA) office in the Philippines.

What to File. You will file an application form. Social Security will also ask you to fill out a variety of additional forms so that it can obtain the necessary information to process your case. The particular forms you will be asked to fill out depend on the nature of your case. Social Security does have multiple forms that ask about the same information, and some Social Security offices prefer one form over another.

In nearly all adult cases, Social Security will ask you to fill out the following forms:

In nearly all SSI child cases, Social Security will ask you to fill out the following forms:

Decisions & Wait Time

Social Security will issue a written initial decision in about three to five months. If Social Security finds you not disabled, it will send you an Initial Denial. If Social Security finds you disabled, it will send you an Initial Allowance informing you that you have been found disabled. Social Security will very commonly state in the allowance letter that you meet its disability requirements, but that it must still determine whether you meet its non-disability requirements. If you do not meet its non-disability requirements, Social Security will then send you a denial. If you do meet the non-disability requirements, Social Security will send you an Award Letter in about 14-30 days which will inform you of your monthly benefit amount and your back pay amount. If you are awarded benefits, Social Security will process your benefits in about 30-90 days. If you are awarded SSDI benefits, and you have dependents, Social Security will process your dependent's payment in about another 30-90 days.

Chances Of Winning

Social Security's nationwide award rates (latest data is 2016) for adults is 44.4% for SSDI-only claims, 22.4% for SSDI/SSI joint claims, 10.4% for SSI-only claims, and 35% overall. Rates will vary based on your localSocial Security office. Social Security's nationwide award rates (latest data is 2016) for SSI child's claims is 46.9%. Rates will vary based on your localSocial Security office.

checkmarkInitial Denial - Appeal & Reconsideraton Process

Overview

If Social Security issued you an initial denial or a partially favorable decision, you may appeal and request a reconsideration. There are 10 states that do not have a reconsideration level, and if you live in one of these states, you will appeal and request a hearing. The 10 states without a reconsideration level as follows:

  1. Alabama,
  2. Alaska,
  3. Colorado,
  4. Louisiana,
  5. Michigan,
  6. Missouri,
  7. New Hampshire,
  8. New York, and
  9. Pennsylvania.

The reconsideration review is "de novo" meaning that Social Security will review your case as if it is brand new and without any reference to the earlier initial denial. Because the review is de novo, you may submit new evidence even if relates to the time period of the initial denial.

When you request reconsideration of your initial denial, Social Security will send you new forms, request additional information from you, review your case, and make a determination. Social Security will send you, and your attorney/representative if you have one, a written notice of the reconsideration determination which will state the decision, the reasons for the decision, the fact that the decision is binding if not appealed, and your right to appeal the decision if it is not fully favorable.

How To Appeal

When to File. You have 65 days from the date stamped on the initial decision to file your appeal. The 65-day time period includes the 60 day period to file an appeal and the presumed five-day mailing period (Social Security presumes it took five days to get to you). It is a rebuttable resumption that the claimant received the initial decision five days after the date stamped on the decision. If you do not request an appeal within 65 days, you may file for an extension of time showing good cause for missing the deadline, though extensions are difficult to obtain. If you do not get an extension, you will need to start over and file a new initial level case.

How to File. You may file online, in-person, by mail, by email, or by fax. Social Security prefers you apply in-person or online.

Where to File. The reconsideration may be filed at any Social Security office, Railroad Retirement Board office if you have 10 or more years of service in the railroad industry, or a VA office in the Philippines. Generally, you will file your appeal at the local Social Security office that has been handling your case or your closest Social Security office if you have moved.

What to File. You will file a Request for Reconsideration - Social Security-561-U2. When you file this form, you have requested an appeal, and your 65-day deadline will have been met. This form is very simple as it only asks for basic information about you and a very short explanation why you disagree with your initial denial (the form allows three lines for an explanation). Your explanation can be very short, "I disagree with the findings of Social Security. I am disabled." You do not need to write a long answer citing Social Security errors in your case.

After you file your appeal, Social Security office will contact you and ask you to fill out a few forms asking questions about you so that it can obtain the necessary information to process your case. The particular forms you will be asked to fill out depend on the nature of your case. In nearly all adult and child cases, Social Security will ask you to fill out the following forms:

Decisions & Wait Time

Social Security will issue a written reconsideration decision in about three to five months. If Social Security finds you not disabled, it will send you a Reconsideration Denial. If Social Security finds you disabled, it will send you an allowance letter informing you that you have been found disabled (it looks just like the initial allowance letter). Social Security will state in the Reconsideration Allowance that you meet its disability requirements, but Social Security must still determine whether you meet its non-disability requirements. If you do not meet its non-disability requirements, Social Security will then send you a denial (reviewed above). If you do meet the non-disability requirements, Social Security will send you an Award Letter in about 14-30 days which will inform you of your monthly benefit amount and your back pay amount. If you are awarded benefits, Social Security will process your benefits in about 30-90 days. If you are awarded SSDI benefits, and you have dependents, Social Security will process your dependent's payment in about another 30-90 days.

Chances Of Winning

Social Security's nationwide award rates (latest data is 2016) for adults is 10.9% for SSDI-only claims, 7% for SSDI/SSI joint claims, 28.4% for SSI-only claims, and 9% overall. Rates vary based on your local Social Security office. Social Security's nationwide award rate (latest data is 2016) for SSI child's claims is 14%. Again, rates will vary based on your local office.

checkmarkReconsideraton Denial - Appeal, Hearing Process, & What Happens At A Hearing

Overview

If Social Security denied your reconsideration appeal or your initial application (if you live in one of the ten states without the reconsideration level), you may appeal your denial and request a hearing. The hearing review is de novo, like the reconsideration level, meaning that Social Security will review your case as if it is brand new without any reference to the earlier reconsideration or initial denial. Because the review is de novo, you may submit new evidence even if relates to the time period of the initial and/or reconsideration denial(s).

When you request a hearing, your case will be transferred from Social Security local office that had been handling your case to a Social Security hearing office closest to where you live - an Office of Hearings Operations (OHO). There are five national hearing offices, and one of these offices may handle your case depending on your local OHO's backlog. You will eventually be scheduled for a hearing. The average Hearing Wait Time is about 10-20 months nationwide. When your case is scheduled for a hearing, you will assigned an administrative law judge (ALJ) who will conduct your hearing and decide your case. You will be given a 75-day hearing notice. You will receive very little correspondence from the OHO until 75 days before your hearing. The wait-time for a hearing is long. You can get a hearing scheduled faster, but the criteria is difficult to meet, and expedited cases are rare - Expedited Cases.

How To File An Appeal

When to File. You have 65 days from the date stamped on the reconsideration/initial decision to file your appeal. The 65-day time period includes the 60 day period to file an appeal and the presumed five-day mailing period (Social Security presumes it took five days to get to you). It is a rebuttable resumption that the claimant received the reconsideration decision (or initial decision if you live in one of the ten states without the reconsideration level) five days after the date stamped on the decision. If you do not request an appeal within 65 days, you may file for an extension of time showing good cause for missing the deadline, though an extension is difficult to obtain. If you do not get an extension, you will need to start over and file a new initial level case.

How to File. You may file online, in-person, by mail, by email, or by fax. Social Security prefers you apply in-person or online.

Where to File. The appeal may be filed at a Social Security office, Railroad Retirement Board office if you have 10 or more years of service in the railroad industry, or a VA office in the Philippines. Generally, you will file your appeal at the local Social Security office that has been handling your case or your closest Social Security office if you have moved.

What to File. You will file a Request for Hearing by Administrative Law Judge - HA-501-U5. When you file this form, you will have requested an appeal, and your 65-day deadline will have been met. This form is very simple as it only asks for basic information about you and a very short explanation as to why you disagree with your reconsideration/initial denial (the form allows one small box for an explanation). Your explanation can be very short, "I disagree with the findings of Social Security. I am disabled." You do not need to write a long answer on the form citing Social Security's errors.

After a long wait, Social Security hearing office will contact you 75 days before your hearing, and it will ask you to fill out new forms asking questions about you so that it can obtain information to process your case. The particular forms you will be asked to fill out depend on the nature of your case. In nearly all adult and child cases, Social Security will ask you to fill out updated versions of the following forms:

Decisions & Wait Times

The average national Hearing Wait Time is about 10-20 months. Your actual wait-time will depend on the hearing office that is handling your case. You can review the wait time for individual hearing offices.

After your hearing, the hearing office will issue a written Favorable Hearing/ALJ Decision or an Unfavorable Hearing/ALJ Decision in about three to eight months. There are no rules about how much time Social Security has to schedule your hearing or write your decision. If you are awarded benefits, Social Security will process your payment in about 30-90 days. If you are awarded SSDI benefits, and you have dependents, Social Security will process your dependent's payment in about 30-90 days after it processes your benefits.

Chances Of Winning

Getting ALJ Disposition Data. You will know the name of the ALJ who will conduct your hearing when you receive your "75-day letter" notifying you that your case has been scheduled for hearing. This letter will be sent to you, you guessed it, 75 days before your hearing. ALJ Award & Denial Rates vary widely as some ALJ's pay 90% of their cases and some pay 10%. ALJ award rate/disposition data is reported on a quarterly basis. When you review the data, it appears as follows:

Judge
Office
Total Dispositions
Total Dispositions Across All Offices
Decisions
Awards
Denials
Fully Favorable
Partially Favorable
Sill,
Jan
Any
70
90
65
40
25
30
10

Interpreting ALJ Disposition Data. The most commonly confused issue on the Internet of ALJ Disposition Data is the difference between dispositions vs. decisions. Most of the Internet erroneously relies on the disposition data. The decisions data is far more important in determining an ALJ's award rate.

Let's review the example above. ALJ Sill has made 70 dispositions (resolution of a case) in her own hearing office and has traveled to other hearing offices [usually due to the other OHO(s) backlog] and made another 20 dispositions in those offices for a total of 90 dispositions in all hearing offices. Of the 90 dispositions, she rendered 65 decisions about whether a claimant was disabled, and she rendered 25 decisions about issues other than whether a claimant was disabled (e.g. she dismissed a case due to a claimant no-show, she rescheduled a case, she transferred a case to another hearing office, a claimant withdrew their Hearing Request, etc.). The number of dispositions is not relevant to her overall disability award rate because she did not make a decision about whether a claimant was disabled. Of her 65 decision regarding disability, she awarded benefits in 40 cases and denied benefits in 25. Hence, her award rate is 61.5%. Not bad ALJ Sill. A fully favorable decision means the ALJ awarded benefits for the entire time period the claimant alleged disability. A partially favorable decision means the ALJ only awarded benefits for part of the time period the claimant alleged disability.

Social Security's nationwide hearing level award rates, though not as precise as the rates of your ALJ, (latest data is 2016) is 56.2% for SSDI-only claims, 38.5% for SSDI/SSI joint claims, (there is no data for SSI only claims), and 48.8% overall.

Where Your Hearing Is Held

Hearing Office. Usually, hearings are held at an Office of Hearings Operations (OHO) that is closest to where you live. There are 168 OHO's in America and five national hearing centers. The OHO's are usually located in private office buildings where Social Security rents office space. Sometimes OHO's are located in federal buildings. Generally, OHO's have an informal and casual feel.

Other Locations. If you live far from an OHO, your hearing may be held somewhere other than an OHO so as to minimize your travel. In this case, your hearing is usually held in a government office building (local Social Security office, satellite hearing office, federal building, post office, etc.) or a hotel.

Video Teleconference Hearing (VTC). A VTC hearing is one in which you and the ALJ are in two separate locations and connected by video cameras and big screen TVs. The ALJ is at the hearing office, and you are at a local Social Security office or a satelite hearing office. You will have a VTC hearing for one of two reasons. First, your hearing is being handled by one of Social Security's five National Hearing offices or another one of Social Security's 168 hearing offices because your local hearing office has a heavy case load. Second, cannot travel to a hearing office for any reason (transportation, child care, medical condition, incarceration, etc.) but you can travel to your local Social Security office or a satellite hearing office. The ALJ must ask you in writing prior to your hearing if you object to a VTC hearing, and if you do, your hearing will be held with a local ALJ in person.

Other Locations. Your hearing may be held by phone for the same reasons it may be held by VTC, but phone hearings are rare. During the Coronavirus/Covid 19 pandemic, all hearings are held by phone. No hearings are being conducted in person. You are entitled to an in-person hearing. If you request an in-person hearing, your hearing will be scheduled when in-person hearings resume. However, Social Security has made no statement about when this will occur. It is this author's estimation that they will resume in late spring or early summer 2021.

Who Will Be At Your Hearing

ALJs. Your hearing will be conducted by an ALJ who is an employee of Social Security. The ALJ assigned to your case is extremely important since, as discussed above, an ALJ has enormous discretion in deciding whether you are disabled.

Attorney/Representative. You are not required to have an attorney/representative, but it is usually encouraged, and in my opinion, always necessary at the hearing level.

Hearing Reporter. A hearing reporter will record the hearing. The reporter is an independent contractor who is not an employee of Social Security. The hearing reporter will not testify at your hearing.

Vocational Expert (VE). A VE is a person who is familiar with jobs and the labor market. A VE is an independent contractor and not an employee of Social Security. VEs are hired by Social Security to assist it in interpreting and supplementing the federal job encyclopedias (mainly the Dictionary of Occupational Titles and the Selected Characteristics of Occupations) published by the U.S. Department of Labor Social Security that uses to help decide your case. If you are an adult, it is a rare that you will not have a VE at your hearing. A VE most commonly appears in person, and sometimes appears by phone. VE's do not appear at child's hearings. A VE will usually testify at the end of your hearing, but sometimes the ALJ will take their testimony at the very beginning.

Medical Expert (ME). A ME may appear at your hearing. An ME will be a doctor who is usually a general practitioner but may be a specialist, psychologist, or psychiatrist. The ME is an independent contractor and not an employee of Social Security. About half the time an ME will appear in person, and the other half by phone - it depends on your local hearing office practice. You will have not been treated by the ME. Social Security will determine who your ME will be. The ME will have been given your medical file to read prior to the hearing. The ME will testify about your medical condition, whether you satisfy a listing, and your residual functional capacity (RFC) (your maximum physical and environmental abilities to perform work tasks) or your mental residual functional capacity (MRFC) (your maximum mental abilities to perform work tasks). An ME assigned to your case is of extreme importance since the ME's opinion about your RFC/MRFC usually determines whether you are disabled, and ALJ's usually accept the ME's opinions.

Witness. If you have a witness to testify for you, the ALJ will determine how the witness will appear. Witnesses testify at the end of the hearing. Generally, the witness is required to wait outside until it is their turn to testify. In rare cases, the ALJ will allow the witness to observe the hearing and testify. It is common that there will not be enough time for your witness to testify, and in that case, you need to ask the ALJ to allow you to submit a written post-hearing witness's statement - Lay-Person Statements.

Observer. An observer is a person who attends the hearing with you and does not testify. Generally observers are not allowed, and you must ask the ALJ if the observer may attend your hearing. If the ALJ does not allow the observer to attend the hearing, the observer must wait outside in the waiting room.

What Happens At A Hearing

Introduction. A disability hearing is a casual setting. A Social Security hearing office is located in a private office building leased by Social Security. The hearing office is not a courthouse. Your hearing is held in a conference room; it is not held in a courtroom. You will sit around a conference table with the ALJ on an elevated bench perpendicular from the conference table. There is no witness chair, formal rules of evidence, or opposing attorney. The hearing will generally be scheduled for an hour. You and your attorney/representative will walk in to the hearing room and sit down. The ALJ will usually be waiting for you, but sometimes they walk in after you are seated. If you say hello to the ALJ, some will respond, and others will just stare at you. Some ALJs wear a traditional black robe, others do not. The ALJ will ask the hearing reporter to start recording the hearing. The ALJ will then explain the hearing process. The ALJ will review the record with your attorney/representative to make sure it is complete. If a VE or ME is to appear by phone, the ALJ will call the expert.

Opening Statement. In nearly all cases, the ALJ will ask your attorney/representative to give an opening statement wherein they will generally cover two things: 1) an overview of your medical history, condition, and symptoms while focusing on your most significant medical evidence; and 2) your argument for disability. Some ALJ's do not want nor request an opening statement.

ME Testimony. MEs appear at a hearing about 10-15% of the time. However, how often MEs appear depend on the OHO. An ME will usually attend your hearing by phone, but may appear in person. The ME's testimony is extremely critical as the ME will testify whether you are disabled, and the ALJ usually accepts their opinion. The ME usually testifies at the beginning of the hearing, but sometimes the ME testifies after they listen to your testimony. Before the ME testifies, the ALJ may allow the ME to ask you questions about your medical condition or symptoms, and sometimes the ME does so. The ALJ will ask the ME to primarily do three things: 1) summarize the medical record, 2) provide their opinion about whether you meet or equal a listing, and if you do not meet a listing, 3) provide their opinion about your RFC/MRFC. The ALJ will usually then ask the ME questions about your medical condition and RFC/MRFC. If the ME testifies you meet a listing or your RFC/MRFC is consistent with disability, the ALJ will usually accept the opinion of the ME, and the hearing usually ends. If the ME testifies your RFC/MRFC is inconsistent with disability, the ALJ will allow you or your attorney to cross-examine the ME about their testimony. Unless the cross-examination results in something significant, the ALJ usually accepts the ME's opinion about whether you meet a listing and your RFC/MRFC.

Attorney/Representative Questioning of You. After your attorney/representative's opening statement, and possible ME testimony, your attorney/representative will question you. Your attorney/representative will tell you which areas of your case are more important than others, and they will focus their questions and your testimony in those areas. Generally, the attorney/representative will question you about the following:

  1. Where and with whom you do you live;
  2. Your medical condition and symptoms;
  3. Your medical treatment and medications;
  4. Your physical and mental limitations/abilities;
  5. Your activities of daily living (cooking, cleaning, transportation, caring for your kids, shopping, etc.);
  6. Your past work and work duties;
  7. Drug and alcohol use, if any;
  8. Not following medical treatment, if any;
  9. Activities that require effort possibly inconsistent with disability - gym time, vacations, chopping wood, significant yard work, working on cars, moving furniture, helping out at your kid's school, etc.;
  10. Work or schooling you have done since you filed for benefits, if any;
  11. Unemployment benefits, if any;
  12. Your military service, if any;
  13. Child Protective Services (CPS) involvement, if any;
  14. SSA investigations of you, if any; and
  15. Any other issues in your record that are possibly inconsistent with disability.

* The vast majority of the questions will be about your 1) medical condition, 2) physical and mental limitations and abilities, and 3) activities of daily living.

ALJ Questioning. There are three possibilities here. First, the ALJ asks you no questions. This is rare. Second, the ALJ will ask you only about your past work (clarifying questions as you will have previously submitted forms about your past work). This is most common. Third, the ALJ will ask only a few questions of you either before or after your attorney questions you. Fourth, the ALJ will ask you many questions - those listed above. The ALJ's questions will vary depending on your ALJ and the particular issues in your case.

VE Testimony. VEs usually testify at the end of the hearing. The VE's role is primarily twofold. First, at the request of the ALJ, the VE will identify your past relevant work and identify your work skills, if any. When the VE identifies your past work, it is critical that your past work is identified correctly. If you are able to do your past work, you are not disabled. If the VE misidentifies your past work and finds your past work to be easier than it actually was, the ALJ may find you can do your past work, and you will be found not disabled. If you are over 50, the VE misidentifies your past work, and the VE finds your past work to be more skilled that it actually was, the ALJ may find you have transferrable skills to other work, and you will be found not disabled. A correct decision depends on the correct identification and evaluation of your past work.

Second, the VE will answer a "hypothetical" asked by the ALJ. A "hypothetical" is a detailed description of your RFC/MRFC. The ALJ will usually ask the VE two to five hypotheticals. At the end of each hypothetical, the ALJ will ask the VE two questions. First, the ALJ will ask whether this hypothetical person (you) could perform your past work considering your RFC/MRFC. The VE will tell the ALJ which of your past jobs can be performed, if any (Step 4). Second, the ALJ will ask whether this hypothetical person (you) could perform any other work (Step 5). The VE will tell the ALJ whether other jobs can be performed, if any. An example of a hypothetical is as follows: "Vocational expert, please assume a person the same age, education, and past work as the claimant. Further assume this person is able to lift and carry 20 pounds occasionally, and 10 pounds frequently. This person can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. She cannot climb ladders, ropes, or scaffolds. She needs a cane for ambulation. She must avoid concentrated exposure to extreme cold, vibration, and hazards. She can have only moderate exposure to noise. She can frequently handle and finger. She can understand, remember, and carryout simple, repetitive tasks. She can interact with co-workers and supervisors on an occasional and superficial basis. She cannot interact with the general public."

The first hypothetical the ALJ asks the VE will usually be the RFC/MRFC findings of the medical providers hired by Social Security to evaluate your medical file at the initial and reconsideration levels. If you are at a hearing, these doctors have determined that your RFC/MRFC is not consistent with disability. Hence, when the ALJ presents this RFC/MRFC to the VE, the VE will find jobs you can perform.

The second hypothetical the ALJ asks the VE will usually include a catastrophic limitation (you are going to be off task 15% or more of the workday, you are going to miss more than two days of work per month, etc.). The VE's response to this hypothetical will be that you are unable to perform any work - you are disabled.

The ALJ may then ask any number of additional hypotheticals which include variations of your RFC/MRFC, and the VE will continue to give answers about whether your past jobs or other jobs can be performed based on the particular hypothetical presented. After the hearing, the ALJ will determine which hypothetical best represented your abilities, and the ALJ will rely on that hypothetical and the VE's answers to that hypothetical to render a decision in your case.

You or your attorney/representative may ask your/their own hypotheticals to the VE and/or cross-examine the VE about their testimony.

Closing Statement. An ALJ may request that your attorney/representative give a closing statement, but this is rare. A closing statement, if given, will generally address three things, 1) your most significant medical evidence, 2) your theory of disability, and 3) any issues requiring additional discussion that exist in your Social Security claims file or that arose during your hearing.

Decision. The ALJ will rarely give a decision at your hearing. Decisions are written and sent to you and your attorney/representative after the hearing.

Pre-Hearing Brief

A pre-hearing brief is a written summary of the medical and non-medical facts of your case, and your theory of disability (how you satisfy Social Security's disability criteria). Most attorneys do not submit pre-hearing briefs. This is in part due to laziness, and in part because they feel they can adequately explain your case in a good opening statement and in the overall presentation of your case at the hearing. A small number of ALJs or hearing offices require a brief.

checkmarkHearing Denial - Appeal & Appeals Council Process

Overview

You can appeal an unfavorable or partially favorable ALJ decision. If you appeal, you will ask Social Security Appeals Council to review your appeal. The AC contact information is as follows:

  1. 5107 Leesburg Pike
  2. Falls Church, VA, 22041
  3. Telephone: 877-670-2722
  4. Fax: 703-605-7101

All correspondence with the Appeals Council is done by mail and fax. You will not travel to the Appeals Council, and you will not have an Appeals Council hearing. Although you may request an oral argument, the Appeals Council is not required to grant the request, and oral arguments are extremely rare. If you have new evidence to submit, the Appeals Council will only consider new evidence if you had good cause for not submitting it previously. When the Appeals Council reviews your appeal, it will do one of three things:

  1. The Appeals Council will disagree the ALJ made significant errors and deny your appeal.
  2. The Appeals Council will agree the ALJ made significant errors and remand your case (send it back) to the hearing office closest to where you live for a new hearing. If you have not moved, the same hearing office that held your first hearing will hold your new hearing. If the ALJ who heard your first hearing is still employed at that hearing office, you will get the same ALJ. That's right, you will get the same ALJ who denied you the first time.
  3. The Appeals Council will agree the ALJ made significant errors and award you benefits. There will be no remand, and your case will be completed. However, this is extremely rare.

Filing An Appeal

When to File. You have 65 days from the date stamped on the ALJ decision to file your appeal. The 65-day time period includes the 60 day period to file an appeal and the presumed five day mailing period (Social Security presumes it took five days to get to you). It is a rebuttable resumption that you received the ALJ decision five days after the date stamped on the decision. If you do not request an appeal within 65 days, you may file for an extension of time showing good cause for missing the deadline though this is difficult to get. If you are not granted an extension, you will need to start over and file a new initial-level case.

Where to File. The hearing decision tells you how to file an appeal. You may mail your form and brief to the Appeals Council or you may fax them. Attorneys/representatives usually fax. If you mail, get a signed return receipt. If you fax, make sure you get a fax confirmation. If the Appeals Council loses your appeal filing which is common, and you do not have proof it was timely filed, it will be difficult to get an extension of time to file a late appeal.

What to File. You will file two things. First, a HA-520 - Request for Review of Hearing Decision. Second, a brief citing the errors the ALJ made in deciding your case. When you file this form, you will have requested an appeal, and your 65-day deadline has been met. This form is very simple as it only asks for basic information about you and a very short explanation as to why you disagree with your reconsideration/initial denial (the form allows one line for an explanation). Your explanation can be very short, "I disagree with the findings of the ALJ. I am disabled." You do not need to write a long answer on the form citing the ALJs errors.

Decisions & Wait Time

There are about 1,600 ALJs in America, but there are only about 60 Appeals Council judges who handle 160,000 appeals per year. The Appeals Council will issue a written Appeals Council Denial or an Appeals Council Favorable Decision in about 12-20 months. In nearly all successful appeals, the case will be remanded (sent back) for another hearing. The average nationwide Hearing Wait Time for a second hearing is about 10-20 months (the same as it is for a first hearing).

Chances of Winning

Your odds are very long. The Appeals Council's remand rate is 12.1% (the latest data is 2017). This number should be interpreted with caution as it includes remands based on dismissed cases (the Appeals Council found the ALJ erroneously dismissed a claimant's case without determining disability), remands based on the ALJ's finding claimants not disabled, and cases when the Appeals Council awards benefits. Because the 12.1% remand rate includes remands wherein the ALJ erroneously dismissed a case, the actual number of cases the Appeals Council remands wherein the ALJ erroneously found a claimant not disabled is unknown. Therefore, if you lose at the hearing because the ALJ found you not disabled, you actually have less than a 12.1% chance of a successful appeal.

Appeals Council Review On Its Own Motion

The Appeals Council can choose to review an ALJ decision on its own motion. That means the Appeals Council itself decides to review your ALJ decision - even if neither you nor the ALJ wants it reviewed. The Appeals Council may do this whether the ALJ decision is unfavorable, partially favorable, or even favorable. That's right, even if you won your case, the Appeals Council may review it. If the Appeals Council reviews your favorable or a partially favorable decision, it may do one of two things. First, the Appeals Council may agree with the ALJ, your case is complete, and your payment is processed. Second, the Appeals Council may disagree with the ALJ and remand the case back to the ALJ for a new hearing highlighting errors the ALJ made and giving the ALJ instructions to follow. You will then be scheduled for a new hearing at your local Social Security hearing office. In this case, you will not receive benefits unless you are allowed at your second hearing.

checkmark Appeals Council Denial & Federal District Court Process

Overview

If the Appeals Council denies your appeal, you can appeal to the United States Federal District Court (court) where you live. These appeals are handled by attorneys. Some attorneys handle both Social Security claims and court appeals. Many attorneys who handle claims before Social Security do not handle appeals before a court. In that case, your attorney who is handling your Social Security case will recommend you hire an attorney they are is familiar with to handle your court appeal, and both attorneys will work with you through the court process. If you are successful at the court, the court will remand your case for a new hearing with a Social Security ALJ, and the attorney handling your court appeal will have completed his work on your case. Then, the attorney who handled your case before Social Security will resume work on your case and handle your second ALJ hearing.

Fee Agreements

New Agreement. Your attorney will draft a new and separate court fee agreement for their work before the court. This is because the original Social Security fee agreement you signed with your attorney/representative does not cover the attorney fee before the court; it only covers the work done before Social Security. All the new work your attorney does before the court will need to be compensated with a new fee agreement. Therefore, you will have two fee agreements - the original Social Security fee agreement for your attorney/representative's work before Social Security, and a new court fee agreement for your attorney's work before the court. You will have two fee agreements even if you have the same attorney for both Social Security work and the court work. A court fee agreement states that the attorney will work on your behalf at the federal court level, and you will pay him for his work before the court. Good news: the Equal Access to Justice Act (EAJA) will pay you directly your attorney fee for your attorney's court work if you win before the court. Once received, you will forward the EAJA payment to your attorney. In other words, the Federal Government will pay your attorney fee before the court if you win.

Original Agreement Changed. If you appeal to the court, your attorney/representative who is handling your Social Security case may also change your original Social Security fee agreement. This is because your original Social Security fee agreement does not consider work your attorney/representative will need to do when your case is remanded from the court back to Social Security. All the extra work before Social Security will need to be compensated by changing the original fee agreement. Both you and your attorney/representative will need to agree to Social Security fee agreement change. Remember, the original Social Security fee agreement stated your attorney/representative charged $6,000 or 25% of your back pay, whichever is less. The newly changed Social Security fee agreement will allow your attorney/representative to receive 25% of your back pay. Social Security does allow this type of Social Security fee agreement, but because your attorney is asking for more than $6,000 or 25% of your back pay, whichever is less, your attorney/representative will need to ask Social Security to review the new Social Security fee agreement by submitting a fee petition to Social Security which explains their work performed before Social Security and the fee requested. Social Security will review the new fee agreement/fee petition and determine what fee amount is appropriate. You will be given an opportunity to object or agree to the fee petition amount.

Time Frame For A Decision

It takes about 12-18 months for a decision. In nearly all successful appeals, your case will be sent back for another hearing. Then you will need to wait another 10-20 months for a new hearing - Hearing Wait Time. On very rare occasions, the court will decide you are disabled and award benefits. In this case, the payment process will be about another 60-120 days. Then add about another 30-90 days for your SSDI dependent's payment to be processed, if you have any.

Chances Of Winning

The court remand rate is 49% (latest data is 2017). Remands include remands based on dismissed cases, remands based on the ALJ's finding claimants not disabled, and cases when the court awards benefits.

checkmark Beyond Federal District Court

Overview

You can appeal your case to a United States Federal Court of Appeals or the United States Supreme Court although either is rare.

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