If you have been denied by the Appeals Council you have been fighting for Social Security Disability Insurance (SSDI) potentially for months or years and you may wonder what the next step is for your SSDI application. Recently on our disability forum we had a user ask, “If the Appeals Council refused to hear my case what should be my next course of action for my SSDI case?”
Recently on our disability forum we had a disability applicant ask what options they have if the Appeals Council refuses to hear their Social Security Disability Insurance (SSDI) case. This question can only be asked by someone who has been waiting for answers for many months and may be in a desperate situation. This blog will address their options.
The Appeals Council, which is headquartered in Falls Church, Virginia, is the last appeal’s option within the Social Security Administration (SSA) system. If you are denied at this level this is the final Social Security Administration decision and all further appeals will have to be made by filing a federal court case.
The Appeals Council is a three member body, and it was established in March 1, 1940. Its goal, according to the SSA is to, “Promote national consistency in hearing decisions made by referees (now Administrative Law Judges) and ensure that the Social Security Administration’s Board (now the Commissioner’s) records were adequate for judicial review.”
If a disability claimant loses at the administrative hearing level and they wish to make a final appeal they can request a review from the Appeals Council. The Appeals Council may grant, deny or dismiss a review for request. In 2011, there were 173,000 cases filed for review by the Appeals Council.
Cases which are reviewed by the Appeals Council may be remanded back to the Administrative Law Judge for another review, they may be evaluated by the council, or the council can refuse to review the case. Disability cases which are evaluated by the Appeals Council may be approved or denied.
What is the rate of approval for the Appeals Council?
Many Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) claimants assume that when they file their disability application they will wait a few weeks and the disability check will appear in their mailbox. If you are at the Appeals Council level you may have been waiting two years for disability and you are under no false disillusions about the fight you have on your hands.
The bad news is getting your claim reviewed by the Appeals Council will be very tough and getting an approval will be almost impossible. Statistics indicate that the Appeals Council rate of approval rate is 2%, another 2% are dismissed, 22% are remanded for a new hearing and 73% are lost or denied.
What does this mean for you? It means you need to talk to your disability lawyer about whether or not filing a SSA disability appeal to the Appeals Council is the best course of action for your disability case. Many disability lawyers, given the low rate of approval, will not take cases to the Appeals Council level, especially if they have not been involved with the disability case from the beginning. Instead, many disability lawyers will suggest filing a new application and beginning the process again from the start.
This is a tough decision. Filing a new SSI or SSDI claim is likely to eliminate a significant amount of back pay and it can mean months or years of more waiting. But given the statistics outlined above it could be a better course of action than waiting for the Appeals Council to deny your disability case.
How long will I have to wait to have my SSA case heard by the Appeals Council?
Many SSI and SSDI claimants want to know how long it takes for the Social Security Administration (SSA) to complete their various tasks. Unfortunately, this is one of the few questions that cannot be answered with any type of certainty. Sometimes the Appeals Council will make their disability decision within as little as three months, but more often claimants will wait 18 to 24 months for a decision.
We have discussed in past posts why a disability lawyer does not agree to take all cases. Remember that disability lawyers work on a contingency fee basis and only take cases they think they have a chance of winning.
If you do not meet the basic nonmedical requirements of SSDI- you do not have enough work credits, your condition will not last 12 continuous months, your condition is not severe, or you are working too much – the disability lawyers knows they will lose your case and they will be wasting their time.
But what if you meet the nonmedical requirements and you have hired the disability lawyer to argue your case at the administrative hearing level but you were denied SSDI or SSI benefits and your lawyer refuses to appeal it to the Appeals Council? Why would your disability lawyer refuse to finish the fight and give you another a chance to win SSI or SSDI benefits?
This is a great question, and to answer it you must understand how the Appeals Council operates and the difference between it and the Administrative Hearing.
What happens at the Administrative Hearing?
By most accounts the Social Security Administrative Hearing is generally your best chance to win SSI or SSDI disability benefits. Why? The administrative hearing is your chance to share your story with an objective administrative law judge who has the authority to award Social Security Disability Insurance or Supplemental Security Income benefits.
The Administrative Judge can see how you function, review your medical records and make a judgment on the reliability or your testimony. Although Administrative Judges approval records vary greatly throughout the United States, in most parts of the state some judges have an extremely high approval rate.
So what if you are denied at the Social Security Disability hearing? What is your next step?
Why won’t my lawyer take my case to the Administrative Council
Keep in mind, the Appeal Council operates more like the Supreme Court than the Administrative Law Judge. Their primary objective is to do one of three things: decide if the decision from the judge was accurate (and if so they will refuse to review the case), review the case themselves or remand the case back to the administrative law judge for a second review.
If they do decide to review the case themselves they are looking for very specific criteria:
- Whether or not the Administrative Law Judge may an error of law.
- Whether the Administrative Law Judge’s actions, findings or conclusions cannot be supported by substantial evidence.
- Whether there is a broad police of procedural issue which might affect the public or general interest.
So, before your lawyer will decide whether or not they will appeal your case they will review the judge’s decision and determine if they believe the judge made an error in law. This is the most in the case being sent back to the administrative law judge.
If your disability lawyer does not believe they can prove there was an error in law they are unlikely to press on with the fight.
Other reasons a disability lawyer will not appeal a case to the Appeals Council
The most common reason I believe that a disability lawyer will not appeal a case past the hearing level is the extended time it will take for an Appeal’s Council review- an average of 345 days- and the unlikelihood that the Appeals Council will make a favorable decision, which is extremely low.
Most disability lawyers will simply recommend that disability applicants begin the process again with a new application.
- SSI and SSDI – what’s the hold up? (disabilitybenefitshome.com)
- SSA disability Hearing – How do I Prepare? (disabilitybenefitshome.com)
- SSA Disability Decisions- Can Administrative Law Judges review online information? (disabilitybenefitshome.com)