Check your denial

The best tip I can offer if your case is denied is to check the paperwork. While there are several common deadlines, if you do not definitely know how long Social Security gives you to appeal, you may be using the wrong deadline.

The paperwork you are looking for is typically a denial. However, it may also be called a “decision,” “notice of disapproved claim,” “notice of proposed action,” or something else. The thing to keep in mind is that whenever Social Security decides something on your case, they will also tell you the following:

1. The appeal options. What you can do if you disagree with the action or decision.
2. The appeal process. What forms you need to fill out, where to get them, where to turn them in, or the website to go to appeal.
3. How long you have to file the appeal.

If you have lost your Social Security denial?

If you no longer have your Social Security paperwork, give your local Social Security office a call. You can also call the toll-free Social Security number at 1-800-772-1213.

Social Security should always be able to tell you the most recent decision (or action on your case) and any applicable deadlines.

Lets get down to brass tacks. Here are the most common Social Security deadlines:

65 days to appeal a Social Security denial

In most Social Security cases, you have 65 days to appeal a denial or decision. Again, there is no guarantee of 65 days; this is just the most common time limit.

Hold on, isn’t it 60 days?

Yes and no. Social Security typically gives you 60 days to file an appeal. However the 60 days normally do not start until 5 days after the date on the decision. Those 5 days are the mailing time Social Security assumes it will take to get the denial to you.

So, effectively, you have 65 days from the date on the decision to appeal.

In theory, if it took longer than 5 days to get the decision to you, you might have an extra couple of days beyond that. However, if you file the appeal more than 65 days after the date on the denial, Social Security will assume that it is a late appeal and you will have to explain the late filing. Can you prove it took longer than 5 days to get the denial?

Note: if the denial is sitting for several days in a mailbox or PO Box because you have not picked it up, this will not normally extend the deadline.

Deadline to what?

I mailed the appeal on the 65th day. I even got confirmation from the post office. I’m good, right?

Probably not. Appeals are not taxes. Getting a postmark by the last day does not stop the deadline clock.

You have to get the appeal into Social Security’s hands on or before the deadline. If you are close to the deadline, that may mean overnighting the appeal, or walking it in.

What if the deadline falls on a weekend or holiday?

If the deadline falls on a weekend or national holiday, then the deadline is moved to the next business day.

However, don’t bet your case on it! I have seen too many cases where the appeal was properly filed on the next business day after a weekend deadline and in every single instance, Social Security treated it as a late appeal. This was able to be resolved with a letter explaining the circumstances. However, it put an extra hurdle in the way of proving the disability case.

If at all possible, get the appeal in early!

Wrap-up

I want to remind you again, deadlines can change and the best source for finding the deadline in your case is to check your Social Security paperwork or contact Social Security directly.

Check out this article for more tips on dealing with Social Security deadlines.

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 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.

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.

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.

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.