Appeals Council correcting technical errors
I was a the Colorado Bar Association Social Security CLE (Continuing Legal Education) program last week. One of the Judges stated during the presentation that the Social Security Appeals Council will begin correcting “technical errors.”
During the Q&A section, I had to ask whether this meant that the Appeals Council would begin approving more cases outright or if this would result in, effectively, “post hoc” fixing of Administrative Law Judges’ decisions.
The response was that this would not likely increase the number of approvals at the Appeals Council level and, again, this was designed to fix technical errors.
This is disconcerting as some of these “technical errors” might well result in sending cases …
Appeals Council form letter denial
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 …
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 …
How long does it take to get an Appeals Council decision?
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 …
Denied at your Social Security hearing? What you can do now
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.
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.
The BIG risk in appealing a “Partly Favorable” Social Security hearing decision
You finally got the decision on your Social Security case and it says… “Partly Favorable.”
This does not mean that you are “partly disabled.” Usually, it means one of the following:
The Judge found you disabled, but not as far back as you wanted; or
The Judge is approved a “closed period” of disability: that you were disabled from one date through another date. For example: the Judge might find that you were disabled from May 1, 2005 through December 31, 2007.
If you are ok with the partly favorable decision, give yourself a pat on the back for winning your Social Security case.
If, however, the partly favorable decision just makes you angry and you are thinking of appealing, please keep the following in mind:
