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.
- The Appeals Council will not hold a hearing on the appeal. The Appeals Council only does a “paper review” of the file.
- 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.
- Because the appeal form does not provide a lot of room to explain what you disagree with, attorneys often add a supplemental brief.
- 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.
- 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.
- 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.
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!
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?
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!
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?
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?
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
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
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.