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Denied At Hearing? What To Do Now

Oct 6th, 2008
by Colorado Springs Lawyer Tomasz Stasiuk.

 

If your Social Security case was denied after a hearing with an Administrative Law Judge, there are a couple of options:

Appeal the ALJ’s decision to the Social Security Appeals Council

In order to do this, you need to file form HA-520-U5 “Request for Review of Hearing Decision/Order.”  

One benefit of appealing preserving your entitlement to past benefits.  If you start a new claim, you will probably lose some back benefits.  

On an Supplemental Security Income (SSI) claim, you can only get benefits back to the “protected filing date” - when you requested to start an application .  

On a Disability Insurance (DIB) claim, you can only get benefits 12 months prior to the date of filing.

So generally, if you can continue to appeal the current claim, you may get more back benefits that on a new claim.  

There are some exceptions to this, such as the possibility of reopening a prior claim during a new claim, but there are additional rules about when you can do this, and, more importantly, the choice of whether to reopen a prior claim is discretionary.  If a judge decides not to reopen a prior claim - that’s it!  In my experience in Colorado, judges generally do not like to disturb a prior judge’s decision.  

I warn my clients not to expect that a prior claim will be reopened if they have to start a new application. We may be able to get the prior claim reopened, but it is not guaranteed.

Start a new claim from scratch by filing a new application  

You may be wondering:

Why would any one want to start a new claim when an appeal may get me more benefits?

The answer is if you “win” at the Appeals Council, chances are that they will not approve your case outright. Instead, the Appeals Council typically will only vacate (throw out) the prior decision and send the case back for another hearing with specific instructions about what was done wrong and what needs to be done at the second hearing. 

So even if you win, you just get a “do-over.”

Here is the real kicker.  The hearing will most likely be with the same judge.  I have seen quite a few cases where the judge simply did not believe my claimant, or their doctors.

Sometimes it is just better to start fresh with a new claim.  If the case has to go to hearing again, it will probably get a different judge.  Of course, there is no guarantee the claimant will not get the same judge, but it is almost certain the claimant will get the same judge if the case is sent back by the Appeals Council! 

By filing a new claim, you have significantly better chances of getting a new judge.  

Which is faster?  A new claim or an Appeals Council appeal?

It is too close to call.  Both can take more than two years to get back in front of a judge.  The main exception is if there has been a significant change in the case which might cause Social Security to approve a new claim at the initial review level.  Since the initial review takes only 4-6 months, under these circumstances, a new claim might be faster.  

In some case, you cannot reapply

There are several situations where you cannot reapply for Social Security:

  1. You are beyond your “Date Last Insured (DLI).” See my column about this here. DLI only applies for disability Insurance cases, so if you are applying for SSI, this will not prevent you from applying.  
  2. If you are applying for SSI, your spouse’s income or other household income may make financially ineligible for SSI.  

Deadlines for Appealing a Hearing Denial

Normally, you have 5 days to receive the denial and 60 days to submit the appeal.  Check your paperwork for the specific dates just to be sure.  Also, keep in mind that it is not 60 days to mail the appeal.  The appeal has to be received at the Appeal’s Council (the address is in the denial) by the 60th day.

Posted in: 2 Denials & Appeals, 4 Appeals Council.
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Viewing 5 Comments

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    Here is a tip which I just read about and people should know about, if you are denied after a disability hearing: You can actually have the hearing re-done by requesting a copy of the tape of the hearing when you request a review of the hearing. This article has more information about it : http://www.disabilityappeal.com/denial-at-the-h... . It explains it better than I could, but basically what happens is oftentimes the tape of the hearing will be incomplete or just outright missing, and then they have no choice but to give you another hearing, since they simply don't have a record of the hearing itself.
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    Hi J.G.

    Thanks for writing. You are absolutely right! It is a great idea to request the hearing recording.

    Although nowadays, most ODAR offices use digital recordings so the inaudible or missing tape problems are greatly diminished.

    But, that disabilityappeal.com article is great. I referenced it myself for the exactly the point you are making here: http://www.socialsecurityinsider.com/2008/01/de...

    Thank you for taking the time to write!
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    I had my hearing today. The judge had a vocational rep come in to testify. he said I had two job options. A cuter paster??? Or a servaliance watcher. I also though he said something about 1/3 work schedlue. How many hours will I be working and what rate of pay. My attorney is filing a brief bcasue she said ther is no way he could deny my case. Also the amount that I would have to stay under is 940.00 HOw do I find the information on how the vocatioal rep gathered this information. I know she did it nation wide, but I life in a small toen that proably does not offer the two jobs she sai I could do.
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    I am writing a post about your question for Friday.

    However, there are certain parts which I cannot address as it goes into providing legal advice.

    Since you mention that you have a lawyer, please contact him or her to discuss your concerns about the vocational expert's testimony at your hearing.

    Good luck and I hope you win your case!

    A Whole Mess of Legalese:
    Information contained on the website and responses to comments (including email) are general information about the Social Security system and are not legal advice.  Any information, even if factually correct, may not be appropriate for the specific circumstances of a particular case.  Any information provided should not be used for making a legal decision.  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!
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    I applied for SSDI in June 2006. I have multiple medical problems and was approved on August 12, 2006. But before my claim was sent for payment it was "selected" for a quality assurance review. Long story short, they overturned the approval-January 2007 and it I appealed the denial and have an attorney. I have been waiting 21 months now for a hearing before an ALJ.

    Are you telling me that once I get to a hearing (my health has deteriorated significantly since my denial) they will deny it again and I have to wait longer? This is bull. When someone such as myself is approved (My medical problems are well documented, I have a mental health FCE and a physical FCE both since my appeal and they are favorable. I also have two papers stating I am permanently disabled that my attorney is sending in to SSDI. They have been forwarding new medical records as we go along.

    AS many other claimants I have lost nearly everything since my denial and this waiting game that Social Security plays. Why do you have to lose everything near and dear and then be told you have to wait even longer. CAses such as mine that are obvious should have never been denied but thats all part of this ridiulous game by SSI.

    Thanks, Donna
 

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