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.

In Colorado, 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 part of the ALJ’s decision 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 that 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 determination.  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.