It always shocks me when I hear that Social Security has discouraged someone from filing an appeal. However, several times a year someone tells me something like this:

When I asked for the forms to appeal I was told, ‘if you appeal, you are just going to be denied.’

This is improper for a number of reasons:

1. It is not Social Security’s job to encourage or discourage people from pursuing cases. You have a right to appeal!
2. If you are requesting a hearing, the person telling you not to appeal will not be the person making the decision. So he or she has not idea what the outcome will be.
3. Telling you not to appeal assumes that Social Security knows all there is to know about a case and nothing will change the decision. As a lawyer whose job it is to get Social Security to change its mind, I can tell you I have not seen a single case that Social Security had all of the relevant information.

If someone at Social Security tells you not to bother appealing, get the person’s name and ask to speak to head of that Social Security office. Better still, send a letter both to head of the Social Security office and to your Congressperson complaining that Social Security is bullying you out of pursing your rights.

You may have a good case, you may have a bad case. But it is an abuse of power to try to talk you out of pursuing your rights by telling you that you will be denied again.

I previously wrote about how long it takes to receive an initial decision after you apply for Social Security disability benefits and how long it takes to get a Social Security hearing.

Unfortunately, there are no hard and fast rules for how long it will take to get a decision after the consultative examination. But, you can make a pretty good guess. 

I usually see a decision four to six months after an application for either disability insurance (SSDI) or Supplemental Security Income (SSI) benefits.  

So, if Social Security schedules a consultative examination 3 months after the application was filed, as an estimate, you can expect a decision in the next 30 to 90 days.

How long after the consultative examination did you get your decision? Let me know in the comments!

Before you put yourself through the drudgery of going down to your local Social Security office, check the Social Security website to see if you can take care of your problem without going in.  

There are a lot of things you can take care of online.

Did you know you can do all of the following at the Social Security website?

• Apply for retirement benefits.
• Apply for disability benefits.
• Check your application status.
• Appeal a recent decision / denial.
• Find out what benefits you can apply for.
• Find out if you can get extra help with your Medicare prescription drug costs.
• Estimate your future retirement benefits.
• Find your full retirement age.
• Estimate your disability and survivors benefits.
• Request a Social Security Statement.
• Change your address or telephone number.
• Get a replacement Medicare card.
• Request a Proof of Income letter to verify Social Security benefit information.

Click for more information about what you can do online at Social Security.

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.

I hear this one with some frequency. I am meeting with a client and they tell me that someone at Social Security told them that if they want to appeal, they have to wait sixty days before starting a new claim / filing a new application.

That’s just not true.

You do not have to wait any length of time after a denial before starting a new claim. You can start a new application the same day as you receive the denial.

I think the confusion comes from the 60 day (actually 60 + 5 day) time period you have typically have to file an appeal. That is the deadline by which you have to get your appeal submitted to Social Security. But the appeal deadline does not have to expire before you can start a new claim.

I am often asked:

I got an informal denial. What is that?

An informal denial typically means that Social Security is denying you because you may not be eligible for disability benefits. This is different from being denied because you are not disabled.

You may be disabled, but if you are not eligible for any type of Social Security benefits, you may be denied through an informal denial.

For example:  you, your spouse, or your household makes too much money or has too many assets.  This results is a financial denial. This sometimes happens in Supplemental Security Income (SSI) cases where, in addition to being disabled (unable to engage in a Substantial Gainful Activity, e.g. full time work), you also have to prove financial eligibility.

Another possibility is that you have not worked long enough (and earned enough quarters of coverage) to qualify for benefits, or you do not have quarters of coverage within the right time period to qualify for benefits.

In both examples the problem is eligibility:  Social Security does not think you can even get your foot in the door.

The flip-side of this, is that Social Security is not even considering whether you are medically disabled. They are not even getting to that step of the analysis.

If you disagree with the informal decision, the general recourse is to request a formal decision. The informal decision will tell you exactly how to do this, for example, by completing the application process or submitting a form.

Since Social Security is denying your case very early on in the review process, you may want to review your case with an attorney to see if there is a significant problem with your eligibility. If so, the lawyer may be able to direct you in how to get over this hurdle.

Here is a common problem. You apply for Supplemental Security Income (SSI), but then Social Security tells you that your spouse is making too much money for you to be eligible.

How much is too much?

It was surprisingly difficult to track down an answer. But, at long last, I was able to find out that in order to be eligible for Social Security your countable income has to be less than the Federal Benefit Rate (FBR).

In 2009, the FBR is $674 per month for individuals, and $1,011 per month for couples. In 2008, the FBR was $637 per month for individuals, and $956 per month for couples. Note: the FBR changes annually. This page lists the Federal Benefit Rates back to 1998.

So, your spouse has to be making less than these amounts to keep you eligible for SSI benefits. At least, that is the best answer I am able to find to this surprisingly tricky question.

I am not addressing the difference between countable income and non-countable income. For that I refer you to your local Social Security office. This is just to give you a ball-park idea of how much of your spouse’s income may be too much.

I often hear the following question:

I just got my Social Security denial letter. Should I appeal or re-apply?

While every case is different, based on my experiences handling Social Security claims in Colorado, I often find the you stand a better chance by appealing rather than re-applying.

As I mentioned in an earlier article, if you re-apply, your case may be reviewed by the same person who denied you the first time. Chances are they will not change their mind.

By appealing, you take the case out of the hands of the person who denied you, and put it in front of a fresh pair of eyes. Sometimes you can present the exact same case on appeal, and the fact that the new person does not have any preconceived notions about it, will allow them to approve your case.

You, or your child, are on Social Security, when out of the blue, you get a letter:

Your benefits will cease as of …

or

An overpayment was detected due to your failure to notify Social Security of your spouse’s income …

or

Since turning 18 years of age, we have determined that you are no longer disabled under our rules …

You may be thinking, “this is clearly a mistake;” “I go in every year with my spouse’s paystubs;” or “nothing has changed in my condition.”

So, you call Social Security to clear this up. Maybe you make an appointment to go in. Maybe you speak to an understanding soul who says it is all a mistake. You think to yourself:

The letter said I could appeal, but I don’t need to do that, I will just get it cleared up.

Watch out! 

There is almost certainly a clock running.

In many circumstances, Social Security gives you 60 days to file your appeal after your receive a notice from them (Social Security assumes you recieve the notice 5 days after the notice’s date).

In some circumstances, you only have 30 days to appeal; and you only have 10 days to request the benefits continue during an you appeal if Social Security plans on stopping your benefits.

Ok, so there is a deadline. Who cares? I am just going to get this taken care of.

There is nothing wrong with trying to resolve a problem with Social Security informally. In fact, it is almost certain that if you are able to resolve the issue informally, this will be a lot faster that getting pursuing an appeal.

Here is the catch, if you do not resolve the problem before the appeal deadline, unless you qualify for an exception, you lose the right to challenge Social Security’s action through an appeal.

Sixty days may seem like a lot of time to get your problem solved, but it can quickly slip away:

• You schedule an appointment, but when you arrive at Social Security, they do not have you down for the appointment, or the person is running behind and cannot see you, or has left for the day, or is on vacation. You schedule another appointment, but there is another reason why you cannot be seen.
• You speak with Person A at Social Security who is very understanding and genuinely wants to help you. However, weeks pass and you hear nothing from Social Security. You call, but you cannot reach Person A. You leave messages, but you never get called back. You call again and speak to Person B. Person B cannot find any record of your conversation with Person A and is unwilling to do what Person A promised.

I have seen too many cases where an individual was “strung along” by Social Security until the deadline passed and the appeal window closed.

I do not think Social Security is intentionally trying to string you along, mislead you, or take away your appeal rights. The vast majority of people working at Social Security are honestly trying their best. But, Social Security is greatly over-worked, under-staffed, and under-funded.

Delays happen, misunderstandings occur, instructions can be miscommunicated, misdirected, or simply buried under a pile of other tasks. All the while, tick-tock, the appeal deadline rapidly approaches.

So, here is what it all boils down to:

1. You can try to resolve your problem with Social Security informally, but always remember the deadline to file a formal appeal. If it turns out that you do have to file a formal appeal, make sure you get a receipt!
2. No matter what anyone at Social Security tells you or promises you, it is not a done deal until you have it in writing. If you are told that the problem will be fixed and you will receive a letter “shortly.” Ask for a date that you should receive it by, and the direct extension number to the person you are working with. Make sure the date is before the deadline. If you do not receive the letter by the time promised, contact the Social Security worker immediately.
3. If you cannot get written confirmation that the problem will be resolved, file the appeal.

Pursue every avenue you can to resolve a problem, but keep the appeal deadline in mind. The appeal is the only way to preserve your rights if you cannot resolve the problem informally with Social Security.

After you were denied Social Security disability benefits, you got the appeal forms, you struggled to fill them out, but you made sure to get it all turned in before the appeal deadline.

Then you wait.

And wait.

You should have heard something by now shouldn’t you?

So, you call Social Security, wade through their voicemail until you finally get a real person, and they tell you the worst thing imaginable:

We don’t show any appeal was filed on your case.

Yes, this happens!

However, if you have proof that you filed the appeal, you can get your case back on track.

If you do not have proof, your only option may be to start from scratch with a new claim.

How can you avoid having to start over if Social Security loses your claim?  Never submit an appeal without having a copy of all the appeal documents and never submit an appeal without getting a receipt.

If you walk-in the appeal:

• Have an extra copy of the appeal forms. 
• At the front desk, ask the Social Security attendant to stamp your copy with their date stamp. This is a special stamp each district office has that provides the office name and number, and the current date. 
• Hold on to your stamped copy of the appeal. It is your proof of when you filed your appeal!

If you mail the appeal: 

• I strongly suggest sending it certified, return receipt requested (or through another verifiable method).  Making the letter certified gives you proof of the date and location where you mailed the letter. Is certified enough? Probably not. Certified just means you mailed the letter, it does not mean that it was received by Social Security. Sometimes, this may be all you have, but if possible, you want better proof that you filed the appeal. The return receipt is the green post card you put on the back of your letter. When your letter arrives at Social Security, it gets signed, dated, and sent back to you on the address you write on the back of the postcard. The return receipt is your proof that your appeal was received by Social Security.
• Hold on to the certified mailing receipt and the green return receipt.
• Mailing the appeal certified, return receipt requested, will cost you between $5.00 to $7.00, but it gives you piece of mind.

If you appeal on line:

• Print out the summary pages.  If you ever have to re-input the data, it is much easier if you have the summary of what you previously entered.
• Print out the receipt pages. This is your proof of filing the appeal.
• As of late 2008, you cannot complete the entire appeal online.  If you completed the Disability Report online, you still need to mail in the Online Appeal Cover Sheet and the Social Security Authorization.  The appeal is not complete until these items have been received by Social Security.
• If you have a lawyer, you also have to submit a fee agreement, Appointment of Representative form, and a Identifying Information form.  However, your lawyer should take care of these extra requirements.
• Since you have to mail these documents, use a certified mail, return receipt requested.

This is the best proof that Social Security had your appeal at one point even if they lose it later. If your appeal is lost, you can resubmit a copy of your appeal – this is why you need to have a copy of all the appeal forms – along with a copy of the proof that the appeal was received by Social Security. You may need to do this several times, so do not send your only copy of the appeal or your proof of filing. Hopefully, you will never need this, but as they say, fortune favors the prepared.

DisabilityAppeal.com has a interesting article on the importance of requesting the hearing tape if you are denied at hearing.

In many instances, once the tapes are obtained and listened to, parts of the record will be inaudible. And in a lot of cases [Social Security] can’t produce the tapes at all because they have been purportedly lost (usually when an ALJ said something during the disability benefits hearing that may reflect poorly upon him). An incomplete or missing record, when noted in a legal brief sent to the Appeals Council … results in an almost automatic sending of the case back for a new hearing.

Good point. I have seen a number of instances where a hearing tape was lost which resulted in the case being sent back for another hearing. I disagree that requesting the hearing tape is an essential requirement, but it is certainly does not hurt.

But the “lost tape” is going the way of the dodo. Many hearing offices are retiring multi-channel audio tapes and replacing them with digital recordings. This makes it much less likely for a hearing tape recording to be lost.

So much for the easy win. Back to rolling up your sleeves and making a strong legal argument.

Are you looking for a specific Social Security form? Social Security has a page where you can find it.

You can search for a form or browse by category:

• Prepare for Your Interview
• Benefits Claims Supporting Forms
• Medicare Prescription Drug Help Forms
• Other Forms
• Forms for Other Agencies
• Forms You Can Complete and Submit Online

Listed below are the most frequently used appeal forms:

• SSA-61 Request for Review By a Federal Reviewing Official
• SSA-561-U2 Request for Reconsideration
• HA-501-U5 Request for Hearing by Administrative Law Judge
• HA-520 Request for Review of Decision/Order of ALJ

Please note that certain appeals require more than just the correct form. For example: an initial denial on a claim for disability benefits normally requires a Request for Hearing, Disability Report-Appeal, and an Authorization to Disclose Information. Check your Social Security notice, contact your local Social Security office or speak to an attorney to determine the appeal requirements in your case.

Here are some more useful forms:

• SSA-1696 Appointment of Representative
• SSA-11 Request to be Selected as Payee
• SS-5665-BK Teacher Questionnaire
• SSA-3441-BK Disability Report-Appeal
• SSA-827 Authorization to Disclose Information to the Social Security Administration

MYTH: Clients often tell me that you have to be denied two or three times before Social Security will approve your case. I am not sure how these rumors get started but unfortunately, this belief often causes people to take what may be the wrong action in their case.

REALITY: If you are denied (on an initial claim), you may be able to file a Request for Reconsideration (appeal 1) and if that is denied, a Request for Hearing before an Administrative Law Judge (appeal 2).

I agree that often your best chance to win is in front of an Administrative Law Judge. So there is some truth in the myth that you have to be denied twice (at the initial application and at the reconsideration phase) before you have your best chance of being found disabled.

BUT, rather than APPEALING the denial, people often interpret the myth to mean they have to RE-APPLY two or three times in order to win. Re-applying may be the worst thing you can do.

If you re-apply, your case may be reviewed by the same technicians who reviewed your case initially. If the technician denied your case once, he or she is likely to deny your case again. Even if a new technician reviews your case, in my opinion, there seems to be a kind of inertia with Social Security. If a case was denied before, it is hard to get Social Security to change course and approve a case by filing a new claim.

However, if you APPEAL a case. The case gets taken out of the local Social Security office and is transfered to the Office of Disability Adjudication and Review (ODAR for short), which is the appeals office. Fresh eyes review the case; not just technicians but staff attorneys and judges. A case often has its best chance in front of a Judge.

So, do not be afraid to appeal! It may be just what your case needs.