A number of attorneys suggest that if you are denied at your Social Security disability hearing, you should do two things:

Appeal the Administrative Law Judge’s (ALJ’s) decision to the Social Security Appeals Council, and
File a new claim for Social Security disability benefits.

The idea was that the new claim would be evaluated by Social Security until it got to the hearing level, the the old claim was pending on appeal. There were pros and cons to this approach.

Since cases often take in excess of 18 months at the Appeals Council, some advised to start the ball rolling on a new claim (which might get approved sooner).
The problem was that a denial on the new claim might reinforced the correctness of the prior hearing denial which is being appealed.
Also, if the new claim got to the hearing level, it was put on hold until the Appeals Council decided on the appeal of the prior hearing decision.
If the Appeals Council denied the appeal, it might have a chilling effect on the new claim’s chances waiting to be heard at the hearing office.

Well, all this is a thing of the past.

With SSR 11-01p, Social Security now effectively makes you pick whether to appeal OR start a new claim.

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I was talking to a woman who was upset with her attorney. Her Social Security case had been denied at the hearing level. The Administrative Law Judge did not think she was disabled. With her attorney’s help, she appealed to the Social Security Appeals Council.

After months and months, her appeal was denied.  Even more than being denied, she was upset that her lawyer could not tell her why she had been denied.

We discussed that there is no way the attorney could know. When the Appeals Council denies an appeal, all you get is a form letter that says in part:
We found no reason under …

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You have been denied disability benefits by an Administrative Law Judge at your Social Security hearing. You filed an appeal with the Social Security Appeals Council. If they approve the appeal, you can get your disability benefits? Right?

Probably not.

The Social Security Appeals Council generally looks at three things:

Was there an error of law? Did the Judge apply the wrong standard, or misapply a standard?
Were the Judge’s actions, findings and conclusions supported by substantial evidence?
Is there as broad policy or procedural issue which may affect the general and public interest?

Of these three, the Appeals Council (AC) mostly deals with legal error.

Why am I …

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Did you represent yourself at your Social Security disability hearing? If you were denied, you may find it is difficult to find a lawyer to represent you.

Sadly, this is a common problem.  It is much harder to hire an attorney after you been denied.
Why?
It all comes down to TIME! You only have 65 day to appeal a hearing denial (5 days to receive the notice, and 60 days to get the appeal to Social Security).  Note:  the appeal must be received by the deadline. Postmarked by the deadline is not enough.

65 days is not a lot of time for a lawyer to do the following:

Review the hearing decision.
Review the exhibit file.
Review …

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If you have been denied at your Social Security hearing in front of an Administrative Law Judge (ALJ), you may end up having to file an appeal to the Social Security Appeals Council.  

In my experience handling Social Security disability cases in Colorado, it can take between 6 – 18 months to get a decision back from the Appeals Council.  

However, even if you “win” the appeal, that is not the end of your case. In the vast majority of cases, the Appeals Council does not approve benefits outright.  Normally, they simply send the case back for another hearing with instructions to the ALJ on what should be …

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If your Social Security case is denied after a hearing with an Administrative Law Judge (ALJ), you have a couple of options:

Appeal the ALJ’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.”  

One benefit of appealing is that it preserves your entitlement to past benefits.  Whereas, if you start a new claim, you normally lose your entitlement to the back benefits from the just-denied claim.  

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

There are exceptions to this, including the possibility of reopening a prior claim during a new claim.  If the Judge decides to reopen the prior claim, you might not lose any back benefit.

However, there is no guarantee that you will be able to reopen a prior case.  You have to meet additional requirements to request a reopening, and, more importantly, the choice of whether to reopen a prior claim is discretionary.  If the Judge decides not to reopen the prior claim – that’s it!  In my experience in Colorado, judges generally do not like to disturb a prior judge’s decision.

So, you do not want to count too much on reopening a prior claim. I warn my clients not to expect that a prior claim will be reopened if they have to start a new application. 

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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.

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