I’ve Been Denied By An ALJ
I HAVE FILED AND APPEALED
So you filed the Initial Application, the Request For Reconsideration and they were both denied. You then appealed to have your case heard in front of an Administrative Law Judge (ALJ).
You attended the hearing as scheduled and you most likely had a representative with you. The Judge heard your testimony, turned to the Vocational Expert, and the Vocational Expert found at least 3 dead-end, unskilled, minimum wage, high turnover jobs that the Judge’s hypothetical supported. We hope your representative or Attorney cross-examined the Vocational Expert and tried to chip away at the number of jobs, and how your particular additional functional limitations further eroded the job base.
Nevertheless, it was all for not, because the Judge denied your case. From here there are a couple of administrative things you should be aware of. The first is administrative finality. The second is the standard of review before the Appeals Council.
Administrative finality means that since you’ve had your day in court, that ALJ denial is binding on you. Unlike a denial from the Initial Application, or Request for Reconsideration, if you were to abandon those SSA decisions and not appeal to the ALJ, when you file a brand-new claim, you can still list the same date that you last worked as the start of your disability.
Not anymore! Once the Judge denies your case, you have been conclusively proven to be Not Disabled from the date you listed on your Initial Application, through the date stamped on the ALJs decision. This means that if you file a new Initial Application, you can no longer state that your disability began on that initial date last worked. Why, because the Judge found that you were not disabled.
STANDARD OF REVIEW
If you appealed the ALJs decision to the Appeals Council (see below), then the Appeals Council will review the administrative and evidentiary record that was before the Judge at the time he/she made their decision. Any new and material evidence such as recent doctor’s visits, MRIs, hospitalizations, etc. are not relevant, and the Appeals Council does not have to consider them. Why? Because those new documents were not part of the Administrative Law Judges original record.
SSLG’s REPRESENTATION ON AN ALJ DENIAL (WHEN REPRESENTED BY AN SSLG ATTORNEY)
If we represented you before the Administrative Law Judge and your case was denied, we give great deference to your SSLG hearing Attorney who represented you at the hearing. He or she will know the record best, and he or she will be in the best position to tell us if the Administrative Law Judge’s decision is supported by the substantial evidence of record. While the Managing Partner of SSLG, reviews all ALJ appeal recommendations, we rely heavily on your hearing Attorney for this recommendation and the reasoning.
We are somewhat selective in which of our clients claims we will appeal to the Appeals Council. We do not appeal every ALJ decision in which we represent a client in front of the Judge. Nor do we appeal every Appeals Council denial, to Federal District Court. Doing this creates a dangerous precedent, and creates bad law in the Federal Circuits in which we represent clients. Creating bad law does a grave disservice to both our current clients, and other disabled Americans who come after them. We selectively choose which ALJ denials we believe are appropriate for both the Appeals Council, and Federal Court,
SSLG’s REPRESENTATION ON AN ALJ DENIAL (REPRESENTED BY PRIOR REPRESENTATIVE)
If we did not represent you before the Administrative Law Judge, and your case was denied, we must first review the written ALJ decision. So if you’re considering having SSLG review your ALJ decision for purposes of an appeal to the Appeals Council, please have it handy so you can either fax it or scan it to us. Of course, if you scan it to us and send it via email, please be sure to mask your Social Security Number (SSN).
When we review the decision, we will then contact you and get some more in-depth analysis from you. Remember, at this point, we are not representing you, so we do not have access to your ERE profile within Social Security. All we have to go on is the written ALJ decision and our discussions with you.
If we decide to take on your case, we will send you the appropriate forms, and ask that your representative withdraw from the case as well as any right to his or her fee. For more information
Don’t try to appeal on your own!
THE APPEALS PROCESS
Once you are denied by the ALJ, like all appeal windows, you only have 60 days to file an appeal to the Appeals Council of SSA. The Appeals Council conducts the final administrative review with the SSA. If the Appeals Council denies your case, you can then file a Complaint against the Commissioner of SSA in U.S. Federal District Court which takes your case out of the administrative process, and into the legal process.
After you file your appeal, the Social Security Administration will make the full audio of your hearing available in your Electronic Records Express (ERE) file. From there, your representative (hopefully an Attorney) will carefully listen to and review the audio of the hearing and prepare arguments. Invariably, the ALJs are going to rely on the statements you made in your Function Report, the brief, superficial and bureaucratic SSA doctor’s visits known as Consultative Exams (CEs), and anything else he/she can hang their hat on to support their decision.
They will also refer to statements you have made to treating sources (including the CE doctor) that indicate a level of function that the Judge needs to justify your denial. The standard is whether the Judge’s decision is supported by the “substantial evidence of record”. Once again, that’s a term of art. It means more than a scintilla, and less than a preponderance.
From here, the Appeals Council is going to send you what we at SSLG call a “25-day letter”. This letter will alert your Representative that he/she has 25 days to file a brief and argue your appeal. The brief is strictly a written document – there are no no oral arguments in front of the Appeals Council like you would typically perform when appealing a legal matter.
Once the Appeals Council receives your brief, and/or any evidence that you submit and they accept, they will make their decision. Their decision takes about 2 to 4 months after they receive the 25-day letter. And the 25-day letter is received about 2 of 4 months after the appeal. This was all before the COVID-19 fiasco. These windows have been expanded since. Typically, in 2020, the Appeals Council process runs about 10 months from denial of the claim, to receipt of the Appeals Council decision. The Appeals Council can render 3 different outcomes in the order of prevalence:
THE APPEALS COUNCIL DENYS REVIEW
If the Appeals Council denies review, this means that they agreed with the ALJ that your case should have been denied. Their written notice will be very brief — at most 2 pages. This means that the administrative portion of your claim has come to its conclusion.
From here, you can appeal the case to Federal District Court, or file a new Initial Application, or return to work if you think you can. The Appeals Council denies review in the majority of the appeals they receive. This is the most common and prevalent outcome when an appeal of an ALJ denial is filed. And as we stated earlier, you are conclusively proven to be Not Disabled from the date you listed on your Initial Application through the date of the ALJs decision.
THE APPEALS COUNCIL ISSUES A REMAND ORDER
About 18% of the time, the Appeals Council agrees with your Representative’s arguments and issues a Remand Order. A Remand means the Appeals Council believes the Judge’s decision is not supported by the substantial evidence of record. Or, that the Judge did not fully analyze a particular piece of medical evidence, or explain his or her analysis appropriately and in a legally sufficient manner.
A Remand means that your case is returned to the SSA Office of Hearing Operations (OHO) for a new hearing generally in front of the same Judge. At this new hearing, the Judge will either get the message that this case should have been approved, or the Judge may dig in his or her heels and dot the appropriate I, and cross the appropriate T and issue a new denial.
If on Remand, the Judge approves your case, then you will be finally deemed disabled, and your Past-Due Benefits (SSA lump sum) will go back to your original date of disability. Sometimes, in response to a Remand, the Judge will call your representative and offer an amended onset date. An amended onset means that your case is approved, but not going all the way back to the date you last worked. You and your representative may agree to amend the onset to a date in which the medical records show a worsening of condition, a grid milestone like the 50th, 55th, or 60th birthday, or some other reason that the Judge believes an amended onset is appropriate.
Sometimes on Remand, the Judge will fix his or her mistake, and deny your case again. If that were the case, you have to start the appeal process all over. You have to appeal the Judge’s decision within 60 days, and rehash what we just discussed above.
THE APPEALS COUNCIL REVERSES THE ALJ AND AWARDS BENEFITS
On rare occasion, (about 3%), the Appeals Council flat out reverses the Judge’s decision and approves your case. On occasion, we get a call from the Appeals Council that they are offering to approve the case with an amended onset, in lieu of a Remand. From there, we consult with you, and if you agree, we will fax a letter agreeing to the amend the onset and your case will go into pay. If you disagree, then the Appeals Council generally will Remand the claim back to the Judge.
FILING A BRAND NEW CLAIM WHILE ONE IS PENDING WITH THE APPEALS COUNCIL
This we do not recommend. Under SSA regulations, the Agency is authorized to put your brand-new claim in a file cabinet while they await a decision from the Appeals Council. Our recommendation is to either file an appeal, or better document your medical records, and file a new claim.
Don’t try to appeal on your own!
Let’s Get Started!
Call toll-free (800) 909-7754 to speak with a staff member or complete the form below and press the Submit button to request a free Case Evaluation via email. There's no obligation.