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 if 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 client 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 Social Security alleges that you owe them money to repay an overpayment, you have two choices to fight it:  

1. You can either file a “Waiver of Overpayment,” or 
2. 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.

What happens if I request a waiver?

Filing for a waiver is basically saying, “I owe the money, but I cannot pay it back.”  

The waiver form asks you to describe your financial life in excruciating detail.  If you pay for a cell phone, cable, internet or for anything more than the most basic necessities of life, the chances of Social Security granting that waiver may be fairly small.  

Also a waiver request can be filed at any time.  This is an important distinction between the waiver and the Reconsideration request.  You can even pursue the Reconsideration process and, if denied, then request a waiver. 

What happens if I request a reconsideration?

Unlike a waiver request, the reconsideration request says, “I do not owe you this money!”  It contests the underlying overpayment.

Filing this also puts you into the administrative appeal process.  The reconsideration step is the first part. Social Security will probably deny the reconsideration. However, this is a necessary step to get to the next level, a hearing before an Administrative Law Judge.  

In my opinion, if anyone is likely to award you some relief from having to repay the overpayment, it is the Judge at a hearing.

Keep in mind that the reconsideration process may take between four and eight months.  The hearing process may take another six to eighteen months just to get in front of a Judge and another one to three months for a decision to be issued.  In extreme circumstances, this entire process may take 30 months. However, in Colorado, I would usually estimate about a year and half to two years.  

This is not necessarily a bad thing.  

While the case is under appeal, you can request a forbearance of the repayment since you are contesting the underlying overpayment. A forbearance is simply a request that Social Security stop trying to collect the overpayment while you are appealing the overpayment.  This is simple fairness: you should not have to repay if you contest owing the overpayment.

Strictly speaking, Social Security only has to stop any attempt to collect an overpayment during the reconsideration step of the appeal. Social Security can try to collect the overpayment after you are denied on the reconsideration and waiting for a hearing in front of a Judge.

However, Social Security has to stop collection proceedings during a waiver request. So, it may be a valuable strategy to request a waiver along with filing a request for a hearing to make sure that Social Security does not resume collection proceedings while you wait for your hearing. 

The critical thing you need to know is that you usually only have 65 days to file the reconsideration after the date on the overpayment notice:  5 days to receive it and 60 days to file the Request for Reconsideration.  As always, check the time limits and form requirements in the overpayment notice as these things are subject to change.  

So, while you can file the waiver at any time (and SSA my push you in that direction), if you want to fight the overpayment, you must do so quickly or potentially lose that right.

Updated 05/20/09.

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.

If you have a attorney working with you, he or she knows how long it takes your local Social Security office to complete the steps in your case, and can check the status if things take longer than normal.

I would also add the following tips:

• Beyond calling to make sure Social Security has received your appeal, I recommend sending appeals certified mail, return receipt requested, so you have proof of mailing and receipt.  
• If you file or appeal online, print out the confirmation pages that the Social Security website provides. You never know when you may need to prove you filed or appealed. 

For more tips to prevent Social Security from losing your appeal, read my earlier article.

Also, check out Tim’s article at My Disability Blog: Calling about your Social Security Disability Claim (can prevent problems).

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.

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:  

• Obtain treatment, 
• Develop documentation of conditions (including symptoms, severity, and response to treatment), and
• Develop medical opinions of your abilities and limitations.

When you add the 12 to 18 months it normally takes for your case to go in front of a judge, with the 4 to 6 months it takes for Social Security to make the initial decision in your case, you are looking at anywhere from 16 to 24 months from the time you file your application to the time your case it goes in front of a judge.

Because it often takes two years to get your case in front of a judge, it is important that your case is in as good a shape as possible. Because if you are denied, and have to reapply, you may be looking at another two years before you get another chance with a judge.

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.

Doesn’t Social Security get a statement of my limitations?

They do. But, chances are it will not help you.

If you are reading this, you probably have already been denied. This means Social Security has already reviewed your medical records and formulated a statement of limitations. Since they denied you, Social Security’s statement of limitations is probably not good enough to prove you are disabled.

Even if you appeal, unless you have your own medically supported statement of limitations, you will probably be denied again. Social Security has a statement of limitations saying you can still work and you have nothing to disprove it. Even if their statement is wrong, if you do not have your own statement of limitations, you are at a disadvantage.

Even if Social Security has not yet made a decision on your case, do you really want a Social Security technician who does not know you, or a Social Security doctor who has never examined you, deciding what your limitations are?   Do you want that to be the only statement of limitations Social Security has when they decide your case? Of course not.

The best people to provide evidence about your limitations are your treating physicians. Your doctors know you and how your impairments affect you. If you are working with a lawyer, he or she can help you elicit a true and complete picture of your limitations from your doctors.

Whether you are fighting to get Social Security disability benefits on your own, or with a lawyer, keep in mind that a statement of limitations is a critical part of building your case, and the one element missing in most Social Security claims.

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.

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)

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.