Denied at hearing? Here’s how to appeal the Judge’s decision to Social Security Appeals Council

If you are denied at your Social Security hearing by the Administrative Law Judge (ALJ), you have the right to appeal the judge’s decision to the Social Security Appeals Council.  

To do this, you need to file form HA-520-U5 “Request for Review of Hearing Decision/Order.”  You only have 60 + 5 days to get the appeal to the Appeals Council from the date stamped on the judge’s decision (5 days to receive the decision and 60 days to deliver the appeal).  

Note:  The appeal must be delivered by the 65th day!  Unlike filing your taxes, postmarking the letter on the 65th day is not enough.  The appeal must be in the Appeal Council’s hands no later than the last day. 

There is the possibility of filing late with the Appeal Council’s permission, but that is not something you want to count on.  

Here are a couple of things to keep in mind about the appeal.

  1. The Appeals Council will not hold a hearing on the appeal.  The Appeals Council only does a “paper review” of the file.  
  2. This means you must provide all your reasons for appealing and everything you disagree about the ALJ’s decision as early as possible; preferably along with the appeal.
  3. Because the appeal form does not provide a lot of room to explain what you disagree with, attorneys often add a supplemental brief.
  4. The Appeals Council mostly looks for legal arguments:  did the judge misapply the law?  While you can argue that the “facts” in the decision were incorrect (in legal terms:  that the judge’s findings were not supported by substantial evidence), the Appeals Council is mostly interested in whether the proper process was followed.  Because the Appeals Council is much more legalistic than the earlier appeals, you really should have an attorney helping you. 
  5. The Appeals Council usually will not upset a judge’s factual determinations – even if they would have come to different determinations themselves – if there is a basis for the judge’s findings.  This is a critical point. The Appeals Council does not want to step into the judge’s shoes about findings of fact if they can help it. However, if there is a significant factual error which is not supported by substantial evidence, I will include it in my arguments. 
  6. If you think the ALJ misquoted the testimony, or if you want to review the hearing tape for other reasons, you can request a copy of the hearing record. I previously wrote about this here.

Practice tip:  When I request the hearing tape, I file the appeal form with a cover letter requesting the hearing tape AND 30 days after the recording is sent to me to provide a supplemental argument based on the tape.  Note: the Appeals Council usually grants a shorter amount of time, but it is still useful to ask for 30 days.

If possible, do not wait until you are denied at hearing to hire an attorney. Many attorneys will not take a case if they hired after the hearing because there is very little time to review the hearing decision, become familiar with the evidence, and prepare a legal argument for the Appeals Council.  

It is much better to get an attorney before the hearing. If the case needs to be appealed to the Appeals Council, that attorney is already up to speed on the case.

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Disclaimer: This is NOT legal advice. This site provides general information about Social Security disability cases in Colorado. To discuss your particular circumstances, please contact a lawyer in your area. Please review the full disclaimer .

About Tomasz Stasiuk

Tomasz Stasiuk is a Colorado Springs Social Security disability lawyer and the founding attorney of the Stasiuk Firm - a law firm specializing in Social Security disability cases in Colorado. Follow Tomasz Stasiuk on Google and Twitter

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  • http://www.SocialSecurityInsider.com/ TomaszStasiuk

    Julie,

    Thanks for your comment! I see that you have read the site very
    carefully and you asking a very intelligent question.

    However, the Social Security Insider site can only provide general
    information. I cannot perform case evaluations via email or comments.

    Also, there are too many variables specific to your case to give you
    the chances of the partially favorable decision being overturned.

    You mention that you hired an attorney in 2006. If you still have
    this attorney, he or she is in a much better position to address the
    likelihood of winning on appeal (or conversely, losing everything).
    Depending on the judge's reputation and your attorney's experience
    with the judge it might even be possible to feel out the judge to see
    if he or she would entertain reviewing the new evidence and issuing an
    amended decision.

    Now, I have never seen that happen! But depending on the strength of
    the medical evidence and how clearly it shows disability as of the
    earlier date, it might be worth trying.

    However, it does nothing towards appealing your case. You always have
    to keep the appeal deadline in mind, because once you are past the
    deadline, you may not be to appeal.

    I wish you the very best.

    Tomasz M. Stasiuk
    http://www.SocialSecurityInsider.com

    A Whole Mess of Legalese:
    Information contained on the website and responses to comments and
    email is general information about the Social Security system and is
    not legal advice. The information on this site may not be appropriate
    for the specific circumstances of a particular case and should not be
    used without obtaining legal advice. For a review of the specific
    circumstances of your case, contact an attorney for a consultation.
    The Stasiuk Firm is available for consultations by telephone at (719)
    630-1225 or (800) 407-016. No attorney-client relationship is formed
    via unsolicited communications with the website or office. No
    representation is provided without a validly executed fee agreement
    signed by the Stasiuk Firm and the client (or their representative).
    Phew!

  • Julie

    I recieved a partial favorable decision on my disability claim. I had filed for it Jan. 2006, was denied. Hired a lawyer and appealed on March, 2006. I had my video hearing on Sept. 2008. My main Dr. who I see every month for my main health issue and he is the Dr. who manages my pain etc., his office did not get the records into my lawyer before the hearing. The juge approved my disabilty onset as of April 15, 2008 based on the Dr. notes from my OBGYN. I have 10days left to appeal the onset date and send the Dr. notes from Jan 2006-Sep2008 since I need the medical insurance more than anything and need major surgery. I cannot wait 2yrs. from the April 2008 approval date. The only issue is the Dr. notes are somewhat vauge and I know the new judge doing the review can override and deny it. what are the chances they would change it?

  • http://www.ColoradoSocialSecurityLaw.com TomaszStasiuk

    Julie,

    Thanks for your comment! I see that you have read the site very
    carefully and you asking a very intelligent question.

    However, the Social Security Insider site can only provide general
    information. I cannot perform case evaluations via email or comments.

    Also, there are too many variables specific to your case to give you
    the chances of the partially favorable decision being overturned.

    You mention that you hired an attorney in 2006. If you still have
    this attorney, he or she is in a much better position to address the
    likelihood of winning on appeal (or conversely, losing everything).
    Depending on the judge's reputation and your attorney's experience
    with the judge it might even be possible to feel out the judge to see
    if he or she would entertain reviewing the new evidence and issuing an
    amended decision.

    Now, I have never seen that happen! But depending on the strength of
    the medical evidence and how clearly it shows disability as of the
    earlier date, it might be worth trying.

    However, it does nothing towards appealing your case. You always have
    to keep the appeal deadline in mind, because once you are past the
    deadline, you may not be to appeal.

    I wish you the very best.

    Tomasz M. Stasiuk
    http://www.SocialSecurityInsider.com

    A Whole Mess of Legalese:
    Information contained on the website and responses to comments and
    email is general information about the Social Security system and is
    not legal advice. The information on this site may not be appropriate
    for the specific circumstances of a particular case and should not be
    used without obtaining legal advice. For a review of the specific
    circumstances of your case, contact an attorney for a consultation.
    The Stasiuk Firm is available for consultations by telephone at (719)
    630-1225 or (800) 407-016. No attorney-client relationship is formed
    via unsolicited communications with the website or office. No
    representation is provided without a validly executed fee agreement
    signed by the Stasiuk Firm and the client (or their representative).
    Phew!

  • Julie

    I recieved a partial favorable decision on my disability claim. I had filed for it Jan. 2006, was denied. Hired a lawyer and appealed on March, 2006. I had my video hearing on Sept. 2008. My main Dr. who I see every month for my main health issue and he is the Dr. who manages my pain etc., his office did not get the records into my lawyer before the hearing. The juge approved my disabilty onset as of April 15, 2008 based on the Dr. notes from my OBGYN. I have 10days left to appeal the onset date and send the Dr. notes from Jan 2006-Sep2008 since I need the medical insurance more than anything and need major surgery. I cannot wait 2yrs. from the April 2008 approval date. The only issue is the Dr. notes are somewhat vauge and I know the new judge doing the review can override and deny it. what are the chances they would change it?

  • Melissa

    If I appeal a Partially Favorable decision from an ALJ, is it true that I WILL NOT be able to receive the benefits she awarded me once I file that appeal?

  • KS

    I wish I had read this article before I hired my lawyer for my hearing. He does not go beyond the hearing level and I have not been able to find a lawyer to help me at all.

  • Pingback: Can I win my disability case at the Social Security Appeals Council? | Colorado Social Security Law()

  • Rowben1018

    my case is about knee injury, high blood pressure, diabetic and ears surgery and my name is Rowena Dagatan and I wonder if I can win my case with an attorney

  • http://www.ColoradoSocialSecurityLaw.com TomaszStasiuk

    I wish I could tell which cases would win based on a quick summary. There is a lot of work done to develop a case, become familiar with the medical records, and determine work-place limitations.

    In my experience, cases almost never turn purely on the diagnosis. It is almost always a matter of determining the individual's limitations, treatment history, response to treatment, prognosis, etc.

    A lawyer can certainly help with that, but no (ethical) lawyer can promise you that you will win.

  • BENTON56_LESLIE

    THE APPEAL COUNCIL REMAND MY CASE BACK TO THE HEARING OFFICE SO ANOTHER HEARING..WHICH IS ALREADY SCHEDULE ,THAT WAS QUICK: HOPEFULLY THIS IS IT….

  • judy

    ok I had my hearing in front of a judge now I was told it takes up to 60 days to hear if am deined now if I go on with my attorney  to the council apeal do I have to pay my attorney or does he get paid if I win  thank you judy from wis

  • http://www.Planet10Tech.com TomaszStasiuk

    Check the fee agreement. Typically there is no change at the Appeals Council level. 

  • Charlene

    After 13 months of my appeal letter sitting at the Appeals Council office – my case has been recently assigned to a specialist. How long does a Specialist look at each case? Any estimates? I am going to be homeless after the end of next month and requested urgency. The office told me to fax this info to them. Do you think a specialist would look at my appeal request more than a month? Btw –  I haven’t been on here in a long time and your website has improved wonderfully. Thanks Tomas!

  • http://www.stasiukfirm.com/ TomaszStasiuk

    Hi, Charlene. I’m glad you like the new look! I see wait times at the Appeals Council from 6 months to 18 months. However, if they are expediting the case for dire need and a specialist has been assigned, you may have something in 30 to 60 days. I have to tell you that this is only a guess on my part. You may want to contact the Appeals Council to find out if they are expediting the processing. Otherwise, you the wait may be quite a bit longer. Good luck!

  • Charlene

    Thank you Tomas! I will go ahead and fax them tomorrow asking for urgency..I appreciate your quick reply on this!!

  • Charlene

    UPDATE!! I called the appeals council today with a question and found out they made a decision today in my favour of a remand back to the Judge. Can you tell me what happens at this point? I am glad they agreed with me at least to have the judge redo my hearing. What do I do from here? Any advice/tips. Thanks so much for your support the past year! Charlene

  • http://www.stasiukfirm.com/ TomaszStasiuk

    A remand is typically a “do-over” hearing: http://www.socialsecurityinsider.com/2010/07/can-i-win-my-disability-case-at-the-social-security-appeals-council/.

    The Appeals Council often provides specific instructions to the hearing judge regarding errors in the earlier hearing decision. This may include instructions that a medical or vocational expert needs to be consulted, or that the weight of specific evidence needs to be addressed, or an explanation of why certain evidence was given more weight than other evidence. 

    Some judges do a completely “do-over” asking everything they might at a new hearing. Other judges limit the hearing to just the topics raised by the Appeals Council. 

  • http://twitter.com/Ladyteguesian Ladyteguesian

    My denial from the ALJ came from misstatements and outright lies from the Disability Determination “doctor”. He didn’t have any of my medical records, x-rays or MRI’s to look at, and I had them with me at that exam, and he still refused to look at them.. In his report, he said I did things that I can’t and didn’t do, then turned around and said that I couldn’t tolerate neckbending or rotation. THEN said I could go back to my previous job of being a checker. The judge and Vocational “expert” both agreed with him, having never looked that the medical evidence themselves. I am now at the Appeals process. What are my chances of having his decision overturned.

  • http://twitter.com/Ladyteguesian Ladyteguesian

    Does she need an attorney representing her at a remand hearing?

  • http://www.stasiukfirm.com/ TomaszStasiuk

    I cannot refer you to anyone in Idaho. Since cases are so fact specific, any estimate of the odds is meaningless without looking at the specific evidence in the case. I encourage you to contact several attorneys and see who you feel comfortable with.

  • http://www.stasiukfirm.com/ TomaszStasiuk

    I would strongly recommend it.

  • http://twitter.com/Ladyteguesian Ladyteguesian

    Thanks for your candor.. I’m pretty gun shy after my last attorney barely showed up for my ALJ hearing..It was just a good excuse to go golfing..but I’ll keep looking.

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