SSR 11-1p: can’t appeal and reapply for Social Security disability
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.
Can I win my disability case at the Social Security Appeals Council?
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 …
Why can’t I find a lawyer to appeal a hearing denial?
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 …
Overpayment choices: reconsideration or waiver
If Social Security alleges that you owe them money to repay an overpayment, you have two choices to fight it:
You can either file a “Waiver of Overpayment,” or
You can file a “Request for Reconsideration.”
Social Security may direct you towards filing the waiver, but there are some things you should know before making a decision.
Is your case on track? Call Social Security to make sure!
Tim Moore writes about his experience with claimants who wait patiently for Social Security to contact them after filing a claim or an appeal:
In the case of disability applications, some found that while they continued to wait on an answer, a decision had already been made on their case. In fact, the decision had been made so long ago that the 60 day period in which a claimant is entitled to file a disability appeal had already elapsed. In the case of disability appeals, some claimants who patiently waited on an answer regarding their claim…eventually discovered that the appeal they had mailed in had never been received, or had been lost.
Tim’s article discusses the stages where it is critical to know what Social Security is doing on your case. This is especially true if you are going it alone without a lawyer.
Denied at hearing? Here’s how to appeal the Judge’s decision to Social Security Appeals Council
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.
How long does It take to get a Social Security hearing?
In my experience with Colorado Social Security cases, hearings are usually scheduled approximately 12-14 months after the appeal is filed. That is the most common time frame that I see for having a hearing scheduled.
However, I occasionally see cases scheduled as early as six months after the appeal (this is pretty rare), and sometimes as late as 18 months.
This is a long time! For most people there is a real question of how they are going to make ends meet while waiting for their case to go in front of an Administrative Law Judge (ALJ).
However, it is important to try to make the best use of this time:
The one element missing in most Social Security cases: a medical opinion of limitations
To be found disabled, generally you have to show that you are unable to perform some type of full-time work. This is a simplification of the Social Security disability standard, but it is sufficient for this article.
The most common problem in Social Security disability claims is a lack of a statement of limitations from a doctor.
These statements go by different names:
Medical Source Statement (this is the term Social Security uses).
Medical Opinion.
Statement of Limitations.
Statement of Permanent Restrictions.
Whatever it is called, it tells Social Security what you can and cannot do. Social Security uses this to decide whether you are disabled.
Isn’t there a statement of limitations already in my medical records?
Probably not.
Most medical records contain a description of your symptoms, the objective findings, the doctors assessment, and the treatment plan. Most medical records do not have any statement of your limitations.
Social Security denial: should you appeal or reapply?
I often hear the following question:
I just got my Social Security denial letter. Should I appeal or reapply?
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.
If you reapply, 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 …
When Social Security problems arise, watch out for deadlines!
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!
What if Social Security loses your appeal?
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 …
Denied at the Social Security hearing? Request the hearing tapes!
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 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 …
CBS Reports: 2/3rds of Claims are Denied, Appeals Taking Over 2 Years
CBS reports on denials and long waiting periods in Social Security Disability cases.
Disability Pay Rejections A two-month CBS News investigation has revealed that many individuals who are disabled are either being rejected or waiting years for a decision on benefits. Armen Keteyian reports.Social Security Criticized
Part 1 (click for video)
The Social Security Administration refuses over two-thirds of the applications it receives for disability benefits. Armen Keteyian investigates what some call a “system-wide culture to deny” claims.
Part 2 (click for video)
Social Security myths: you have to be denied twice before you can win
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 …
