YOUR OPTIONS AFTER SOCIAL SECURITY DENIES DISABILITY

 It may come as a surprise to many that Social Security denies most disability claims.  In fact, the agency denies about 70 percent or 7 out of 10 applications.  However, a denial is not the end of the matter.  The following appeals are available: and must be done in sequential order:

1.  Reconsideration.  This is the first appeal and must be done first.  This written appeal must be made within 60 days of the denial. This sends your claim back to the state "disability determination service" that made the decision to deny.  It asks them to review or "reconsider" their action.  Sadly, the agency will probably deny your claim again at this stage, as the denial rate at "Reconsideration" is between 95 and 98 percent.

2.  Hearing Before an Administrative Law Judge (the Hearing);  

Within 60 days of denial at Reconsideration, an another appeal should be filed asking to appear at a hearing before an Administrative Law Judge (ALJ).  This step in the process has the highest chance for an award of benefits (about 45 percent on average).  A hearing requires a lot of preparation and expertise.  The odds of winning without an attorney or advocate is about 33 percent.  With an attorney/advocate, the odds of winning are 60 percent.  Obviously, we advise never going to a hearing without representation.

3.  APPEALS COUNCIL (AC).  If the hearing produces another denial, you have the right to ask the Appeals Couincil to review your case.  This is a body of administrative law judges headquartered in Falls Church, Virginia-near Washington, DC.  You will not appear for this review.  A judge will be assigned to review your hearing and testimony to determine if further action is needed.  The AC may take any of the following 3 actions:  (1)  Refuse to review your case, leaving the denial in place, which happens about 78 percent of the time.  (2) Remand your case, sending it back to the administrative law judge (ALJ) who first heard it, requesting a new hearing or further action (about 15 of the time).  (3) Reverse the denial and award benefits, which happens no more than 5 percent of the time.

4.  SUIT IN FEDERAL DISTRICT COURT.  Within 60 days of an unfavorable action by the Appeals Council the claimant may file a complaint in the Federal District Court where he/she lives or where his or her principal place of business is located.  A filing fee must be paid unless the court waives the fee based on inability to pay. The Social Security Administration is exempt from lawsuits; however, a suit may be filed against the current Commissioner of Social Security.  The Commissioner's name will appear on the complaint as the defendant.  The Commissioner will file an "answer" to the court, explaining why benefits were denied and arguing that it was proper.  There will be some back and forth between the claimant and Social Security's lawyers, usually in the form of written comments to the court.  The claimant will be represented by an attorney, who will handle this process.  The court may take any of 3 actions:  (1) Overturn the denials and pay the claim.  (2) Deny the claim and let the previous denials stand.  (3) Remand the case back to Social Security for further review.

A denial in US District Court usually ends a claim, since there is no further practical appeal.  It is technically true that Social Security claims may be adjudicated by the US Supreme Court; however, this isn't practical.  The Supreme Court may hear a rare Social Security case about once per decade  but usually only cases involving important principles of law that extend beyond the normal issues in a routine Social Security claim.  And since there are hundreds of thousands of denials every year, that doesn't give a claimant much access to the Supreme Court.  So, practically, the case ends at the Federal District Court.

At any point along the way, a claimant may dismiss an appeal, or refuse to file an apeal, and file a new application with Social Security.  Before choosing the option to file a new application and start over, the claimant must assess 2 important factors:

1.  Has the Date Last Insured already passed?  If so, it may severely limit the ability to win a new claim.  Every individual has a date upon which Social Security Disability Insurance or SSDI expires for new claims.  Check to see what this date is.

2.  Is there material new evidence or material change in the claimant's circumstances since the most recent decision?  If not, it may be very difficult to prevail with a new application.

In every case, advise by an attorney or qualified advocate can be of tremendous value in guiding a clailmant through the appeal process, or in making decisions about what action to tqke next.

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The Forsythe Firm    7027 Old Madison Pike NW      Suite 108      Huntsville, AL 35806

Phone:  (256) 799-0297        Email:  forsythefirm@gmail.com

 Forsythe Firm Website

WHEN SOCIAL SECURITY TREATS YOU LIKE A CRIMINAL

 You walk into to a room for a Social Security disability hearing with your representative.  A person called an administrative law judge begins the hearing.  These hearings are supposed to be fact finding, nonadversarial and non-confrontational.  Unfortunately, not all are.  In fact, some judges may treat you more like you're a criminal than someone who is merely trying to collect on a legitimate insurance claim.

The judge swears you in.  The questioning begins, perhaps pretty calmly.

"Tell me why you think you are unable to work."  You explain.

"Have you tried to find any other work that you might be able to do?"  No, you say.

"Why not."  You say you don't think you're able to work.

"Have you been to the state rehabilitation service to see if they can help you get a job you CAN do?" You say no.

"Why not?"

Then, your representative introduces a detailed medical source opinion from your doctor.  In it, your doctor says you have severe medical conditions.  The doctor lists a number of specific reductions in function that would not permit you to hold a full-time job.

The judge begins to abuse  the doctor's statement:

Did the doctor do any tests to determine these limitations or did he just make them up?

Were you present when the doctor filled out this form?

Did you tell him what to write down?

Did you tell the doctor how much you can lift or how long you can sit or walk?

Then how does he know?

Where is there any objective evidence to support these limitations?

It says here that you "may" need extra time to complete your work, it doesn't say you WILL.

The medical record says that you were able to walk into the doctor's office without any assistive device, could sit in the chair while he talked to you with no signs of pain or discomfort, and could climb on and off the exam table without assistance."

As you try to explain your symptoms, the judge just keeps reciting reasons why he/she is going to deny your claim:

It says you have a 4 year-old daughter; can you lift your daughter?

Well, how much does your daughter weigh?

Are you able to take care of your child?  Who prepares her meals?

You can you can't drive very far, do you drive to the doctor's office?

When you get a hearing like this, it really means one thing.  The judge has probably made up his/her mind to deny your claim and nothing you or anyone else says is going to change it.  This judge has a bias, probably against all claimants, not just you.  He or she will keep questioning until they find some reason to deny your benefits.  You never had a chance.

Fortunately, not all judges conduct their hearings this way.  But if you get one who does, you may as well pack up and go home because your claim isn't going to get paid.

It's ironic that in the same building, one judge pays 70 claimants out of 100 claimants who appear over a period of time; another judge may only pay 12 or 13. They like to talk about "uniformity," but in reality there is none.  It depends on the judge you get.

In reality, Social Security judges use a two-step system to adjudicate claims:

1.  Can we pay this claim?

2.  Do we want to?

Congress needs to overhaul the Social Security disability system.  It should not take 12 to 36 months to get your claim decided.  And most claimants should not need attorneys or advocates to get their benefits.  The fact that they do indicates a serious problem in the system. 

By the way---Never, Ever go before any judge without representation.  Never, Ever.