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

1. Appeal the Administrative Law Judge’s (ALJ’s) decision to the Social Security Appeals Council, and
2. 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.

Under the new procedures we are adopting in this Ruling, generally you will no longer be allowed to have two claims for the same type of benefits pending at the same time. If you want to file a new disability claim under the same title and of the same type as a disability claim pending at any level of administrative review, you will have to choose between pursuing your administrative review rights on the pending disability claim or declining to pursue further administrative review and filing a new application.

This applies to pursuing two cases of the same type. That is, both appealing and applying for SSDI benefits, SSI benefits, or a concurrent claim for both SSDI/SSI benefits.

You can still apply for benefits of a different type that those considered on the appeal.

This Ruling does not change the procedure we currently follow when you file a subsequent claim under a different title or for a different benefit type than a pending claim. When a subsequent claim under a different title or for a different benefit type shares a common issue with the pending claim, we will usually consolidate it with the pending claim through the hearing level. When you file a subsequent claim that is under a different title or is for a different benefit type and your prior claim is pending review at the Appeals Council, we will process the subsequent claim in accordance with our current procedures.

In practice, this exception to the “choose only one appeal option” will mostly come up in cases where an individual was applying for Social Security Disability Insurance (SSDI) benefits and the hearing denial deals with disability through the date last insured (DLI).

An appeal is usually the only option (unless there is a previously un-adjudicated period of disability), since the date last insured often precludes a new SSDI claim. However, an individual in this circumstance may still be able to file for Supplemental Security Income (SSI) benefits (which does not have a date last insured issue).

So, if you have a prior hearing denial for SSDI which deals with a date last insured, and can only start a new claim for SSI,  you are still able to apply and appeal. This is because the prior claim (SSDI) is a different type that then new claim (SSI).

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 our rules to review the Administrative Law Judge’s decision. Therefore, we have denied your request for review.

No matter how many arguments your attorney put forward in the appeal, or how good they were, you do not get an explanation of why your appeal was denied. All you get is a form letter. It is a bit like getting a rejection letter from a publisher: you don’t know what they didn’t like about your story; you just know that it was rejected.

It is just as frustrating for the lawyer to not know why the appeal was rejected. What it comes down to, is that even your lawyer cannot tell you why the appeal was denied since Social Security does not tell us.

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 discussing this? Because, even if there is legal error, that does not necessarily mean you are disabled. It only means there were mistakes at the hearing level; and that is not enough to win disability benefits.

So what do you get if you win at the Appeals Council?

The majority of the time, the Appeals Council will not approve a case outright. Instead, if there were significant mistakes at the hearing level, the Appeals Council will send the case back to the hearing level with instructions on what needs to be done to correct the mistakes.

You don’t win, you get sent back for another hearing. Here is the other shoe dropping: the second hearing is typically with the same judge that heard the case at the first hearing.

While you can request a new Judge, or ask the Judge to recuse him/herself if you feel that you were treated unfairly, you generally get the same judge when a case is remanded from the Appeals Council. The exceptions to this are as follows:

• If you had an out-of-state Judge at the first hearing who is not available for the second hearing. Or,
• If you have already appealed a decision from the same judge to the Appeals Council twice and had the same case remanded.

For more information about appealing to a hearing denial to the Social Security Appeals Council, click here.

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 your treating providers (doctors).
• Check for missing evidence.
• Obtain missing evidence.
• Review the medical evidence.
• Prepare the legal argument for the appeal.

Keep in mind that lawyers often work with a person applying for Social Security disability benefits for more than a year to get their case ready for hearing. To take on a post hearing case requires compressing all that work into a month or less.

This is another reason to hire an attorney early on your Social Security disability benefits case.  If you are working with an attorney before the hearing, they will probably help you if you need to appeal if you are denied at hearing.

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 done next time.  

When your case gets sent back to the Office of Disability Adjudication and Review (ODAR), it may take another 6-18 months for the second hearing to be scheduled.  

Altogether, you may be looking at 12 to 36 months before you get another chance to present your case even if you “win” your case at the Appeals Council!

Note:  wait times at the Appeals Council, and particularly at the various ODAR offices around the country, vary quite a bit, so take this estimate with a grain of salt and get up to date information from a lawyer in your area.

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. 

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 that 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 needs to be done differently 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. Having another hearing with the same just is not much of a victory.

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 you wont get the same judge, but, by filing a new claim, you have a significantly better chance 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 article about this here. DLI only applies in 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.  Strictly speaking this does not keep you from applying, but you may quickly get a denial for financial ineligibility.

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.  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.

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.