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How to Appeal a denial of Supplemental Security Income

OK, you have gone through the hassle of applying, endured the wait and frustrations and now find yourself denied.

What do you do now? Remember, as we said in our page How to Apply for Supplemental Security Income, it is possible to obtain SSI when you have lymphedema.

Note: Appealing a Social Security disability denial can be confusing and discouraging. However, many (if not most) claims are eventually overturned on appeal, making it worthwhile to continue the appeals process.

If you wish to appeal, you must make your request in writing within 60 days from the date you receive your letter or notice of denial.

So….take a deep breath, grab a cup of coffee and review the information carefully on this page. The information presented here is a compilation from a number of sites that are specialists in the Social Security appeals process.

Keep the faith!

Pat O'Connor

June 20, 2008

Supplemental Security Income: Your Right to Appeal

If You Were Denied SSI

Many people are denied SSI benefits when they first apply. Disability Determination Services reports that, nationally, 62% of the original applications are denied. Some of the initial denials are overturned through the appeals process. Four levels of appeals are available:

  • Reconsideration is the first level of appeal. Your file will be sent back to the Disability Determination Services in your state. The information in your file will be looked at by a new adjudicator(s). Approximately 14% of the appealed cases are overturned, and benefits are allowed.
  • A hearing before an administrative law judge (ALJ) is the second level of appeal. At this level of review approximately 60% of the cases are overturned and benefits allowed.
  • A review by the Appeals Council is the third level of appeal. Of the 40% of appealed cases that are not overturned at the hearing level, only 18% appeal at this third level. At this level, the Appeals Council will carefully review the case or return it to the same or a different ALJ for further action,which could include another hearing and a new decision. About 27% of the cases appealed at this level are sent back to the second level for further action.
  • Federal Court action is the fourth appeal. Because this appeal is costly, appeals are rarely pursued at this level.

Most people who appeal are granted reversals at the first and second levels of appeal. Before appealing, make sure that the basic financial eligibility requirements are met. If financial eligibility is met and the disability limits or restricts the ability to work, it is advantageous to appeal. As the above statistics indicate, a new decision at appeal levels 1-3 can result in a favorable decision.

What Are Some of the Common Reasons for Denial?

The application forms are lengthy and call for many details. If the application sent to Disability Determination Services (DDS) was incomplete, it is likely to be denied. If this is the case, the appeals process allows applicants the opportunity to provide more detailed information. Some common reasons for denial include:

The information was not complete: The Social Security Administration (SSA) will request information about your limitations and restrictions due to a disability from doctors and other people who are familiar with the applicant. SSA needs all of your doctors’ names, addresses, and telephone numbers as well as the contact information from other people who know about your disability and limitations. These may include teachers, job coaches, employers, and friends.

SSA does request a detailed description of your day-to-day activities. This should stress how your disability limits and restricts your ability to work. It is important for the people sending information to SSA or DDS to understand the need to provide information that describes your limitations or restrictions for work and not focus on your strengths. Have someone review your application to make sure it is complete.

The doctors’ information was not specific to the disability and work limitations: Your doctor must provide specific information about your disability and how it limits the ability to participate in the workplace.

The information about work experience did not adequately describe the limitations in performing work tasks: DDS will need a detailed description of all the equipment, assistive technology, services, supports, and accommodations you use, as well as detailed information specifying the ways that your disability affects your ability to perform tasks at work.

Later sections of this brief will provide specific examples to illustrate some of the reasons for denial. It will also outline how the appeals process can help individuals obtain a favorable decision from SSA/DDS.

Provide Complete Information About Your Disability

The information submitted to SSA/DDS should include a clear description of the disability and functional limitations. Some examples include:

  • If you have a physical, neurological, or sensory disability, document information such as: seizure length and frequency, limitations in mobility, balance, vision, hearing, fatigue, chronic pain, and reduced stamina.
  • If you have a cognitive disability, document information such as: difficulty focusing, carrying out tasks independently, understanding directions, reading, writing, spelling, calculating, making good judgments, and memory.
  • If you have an emotional disability, document information such as: mood swings, anxiety attacks, comprehension, and articulation.
  • If you have a communication disorder, document information such as: limitations in speech, comprehension, and articulation.

If the information on an application is incomplete, SSA may contact you to obtain the needed information.

The SSI Appeals Process

If you receive a letter from SSA denying your application, you may appeal that decision. You must respond within 65 days from the date on the letter, or 60 days from the date you actually received the letter. If the letter was forwarded to you, or in some other way delayed so you are unable to respond within 65 days of the letter’s date, you can still file an appeal, but you may be required to verify when you actually received the letter. Directions on how to appeal will be included with the notification. Your first step is to state in writing that you plan to appeal the decision and to mail that statement to the address on the denial letter.

At each level of appeal you should request a copy of your file and review all information to understand why the denial was made. Request that information as soon as possible, and check to see if it is complete and accurate. You may submit any additional information on your disability at any level of the appeals process. You can also have someone represent you at all levels of appeal.

1st Level—Reconsideration

Within 60 days of receiving SSA’s initial denial, a written request for reconsideration must be sent. All of the documentation will be reevaluated by a disability examiner who was not part of the initial determination.

At this level the reversal rate is 14% (about one in seven appeals are granted). SSA will send written notification of the reconsideration decision. The reconsideration level must take place prior to a hearing before an ALJ, except in prototype states where the claimant goes straight to the hearing before the ALJ. (SSA has eliminated the reconsideration step in 10 “prototype states”—Alabama, Arkansas, California, Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York, and Pennsylvania—to see if this improves the application process.)

2nd Level—The Hearing

If the reconsideration is denied and you wish to appeal, the next step is the hearing before an ALJ. A hearing must be requested within 60 days of receiving the denial. It is important to attend the hearing unless a written statement is provided to explain why a person cannot attend. If that occurs, a judge will make a decision based on the information from the reconsideration level and any new information that may have been provided.

It may take from three months to a year to have a hearing. Each person will receive a date, time, and place. This hearing can be postponed due to illness, transportation, or availability of witnesses.

Anyone can bring an advocate, witnesses, family members, or have a representative such as an attorney at the hearing. A witness can be a co-worker, physician, or anyone who can explain the effect of the disability on work. Before the hearing, make sure that all medical records are complete.

Other people at the hearing will include the court reporter who will record the proceedings, and medical or vocational experts if the judge requests their help in making a fair decision. There is no jury or spectators. There is no attorney for SSA and therefore no cross-examination. The hearing usually lasts about one hour and a written notice of the decision will be sent within eight weeks. This level has a reversal rate of approximately 60% (three out of five appeals are granted).

3rd Level—Appeals Council Review

If the appeal is denied at both the reconsideration and hearing levels, there is another level of appeal. This is a request for a review by the Appeals Council. A request must be submitted within 60 days from the date of the hearing denial. Of those reviewed by the Appeals Council, 27% are sent back to level 2 to be reheard.

The role of the Appeals Council is to review the ALJ’s decision. No one besides council members are present at this level. The council will review documentation and the judge’s decision and either make a decision or send it back to the ALJ for a second hearing. This could mean that a different judge would hear the appeal. A written statement will be sent regarding how the appeal will be handled.

4th Level—Federal Court Action

If the appeal was again denied, a lawsuit with a Federal District Court can be filed within 60 days. It is important to have an attorney at this level of appeal. The Federal Court will review all the information provided and make a decision without any future hearings. It is also possible to bring an appeal to the Supreme Court. This level of appeal is very costly and rarely done.

Why Appeal?

It is advantageous to pursue the appeals process if an application is denied. The process has benefited many people who have been denied. It is also important to understand that even if an application and appeal are denied, anyone can reapply for SSI at any time in the future if the SSI income and disability eligibility requirements are met.

You May Choose Someone to Represent You on an SSI Appeal

Representation can be provided at all levels of appeal. This person may be an advocate, parent, attorney, or other individual who is familiar with SSI and your specific situation. SSI will work with this person just as they would with you. This person can come with you or go for you to any interview, conference, or hearing. They may help get information from your SSI file such as medical records or statements from teachers or other support specialists. You can even have more than one representative if you choose. Your representative(s) cannot charge or collect a fee from you without first getting written approval from SSA.

Once you choose a representative, you must inform SSA in writing as soon as possible. To do this, you can get a Form SSA-1696-U4, Appointment of Representative, from any Social Security office.

You must give the name of the person you are appointing and sign your name. If the person is not an attorney, he/she must, in writing, give his/her name; state that he/she accepts the appointment; and sign the form.

Your representative will receive a copy of any decision made on your disability claim and assist in determining whether an appeal would be to your advantage. Your representative can:

  • Review what is in your file.
  • Identify and obtain missing information about your disability.
  • Request a reconsideration, hearing, or Appeals Council review for you.
  • Help you and any witnesses prepare for an appeals hearing.

NCSET

Should I appeal my initial denial?

Yes! Unfortunately, many people simply give up after an initial denial. The next stage of appeal is called “Reconsideration.” You must request Reconsideration within 60 days after initial denial. You should hire an experienced Social Security attorney after initial denial. Most people who apply for Reconsideration are also denied again.

Should I appeal my Reconsideration denial?

Yes! You must appeal within 60 days by requesting a hearing before an Administrative Law Judge (ALJ). The ALJ is independent from the Social Security Administration. ALJs review all cases to ensure the social security regulations are applied fairly.

When should I see an attorney?

Immediately! Preparation takes time. The best time to hire an attorney is the earliest stage of denial.

What does it cost to hire an attorney?

An attorney cannot charge a fee for representing a Social Security claimant unless approved by the SSA or ALJ. Fees are limited to 25% of past due benefits by SSA regulations. Most attorneys also charge actual office expenses (such as doctor charges for medical records) even if the case is lost. The SSA withholds 25% of past due benefits for the attorney in disability cases. The claimant is expected to pay the attorney 25% directly for SSI benefits. After winning benefits, the attorney is not entitled to further fees for future benefits.

M.Reid Acree, Jr., Attorney at Law

How to Appeal Basics

How to React if a Supplemental Security Income case is Denied

If your claim for social security disability or ssi disability benefits is denied at either the intial or reconsideration levels, you should not panic. Though it's an unfortunate fact, most claims for social security disability and ssi benefits are denied at the Initial level (60-70%). Even more are denied at the Reconsideration level (80-85%).

And the basic reality regarding SSA's disability system is simply that if an ssd or ssi benefit claim is denied once, it will usually have to go to a disability hearing before an Administrative Law Judge before it can be approved.

This is mainly because the middle step between the Initial Claim and Disability Hearing levels—the reconsideration—simply, in most cases, amounts to no more than a rubber stamping of the initial claim denial.

With this reality in mind, if you are denied for social security disability or ssi you should not doubt the strength of your case, or the severity of your impairments. Simply realize that most disability claims are turned down, making it necessary for appeals to be filed.

Therefore, as soon as a denial letter is recieved, immediately contact the social security office where you originally filed your social security disability or ssi claim and request the appropriate appeal. If you have representation, let your attorney or non attorney representative handle this for you.

If you were denied at the initial claim level, the appeal to ask for is a request for reconsideration.

If you were denied for ssd or ssi disability at the reconsideration level, the appeal to ask for is a request for hearing before an administrative law judge.

How to request the first appeal for your Supplemental Security Income case

The first appeal available to a Social Security Disability or ssi disability claimant who has been denied for benefits is the Reconsideration (except, of course, in those states where the recon stage has been suspended as part of a test project). The actual forms needed to initiate this appeal are known as the Request for Reconsideration and the Reconsideration Report.

Completing the paperwork for a reconsideration is a fairly simple and easy thing to do. But a reconsideration must be completed and submitted within 60 days of the date of the Initial Claim's denial.

A failure to appeal within the 60 day timeframe will result in an “untimely appeal”…meaning, essentially, that a claimant for social security disability will be required to start over at the very beginning; i.e. file a brand new ssd or ssi claim.

There are, certainly, exceptions to this rule, exceptions that fall under the umbrella of a concept referred to as good cause. Such exceptions generally include illness, hospitalization, or other extenuating and plausible circumstances that might account for the late filing of a social security disability or ssi disability appeal.

Without “good cause”, however, a Request for Reconsideration that has been submitted in an untimely manner will simply be rejected.

Failing to submit an appeal within the specified deadline is counter-productive and a waste of valuable time. This is particularly true since any new applications filed by a disability claimant will likely be denied as well (for the same reasons as the first denial) and take just as long to process (several months, in most instances).

In the vast majority of social security disability and ssi cases, claimants will have their best chance for being awarded benefits (monthly amounts and backpay) at a hearing held before an Administrative Law Judge. However, an ALJ hearing can only be requested after the denial of a Reconsideration appeal (and Reconsiderations have a notably high denial rate, approximately 80-85%).

Filing a request for a Supplemental Security Income hearing before a judge

The Request for Hearing (before an Administrative Law Judge) is the second step in the Social Security Administration's disability appeals process (except, of course, in those test states where the reconsideration step has been suspended) and is handled similarly to the Reconsideration.

Simply contact the Social Security office and request the appropriate appeal forms.

Claimants with disability representation should call their attorney or non attorney Representative. Once the office handling their representation is aware of the Reconsideration denial, the Request for Hearing should be submitted shortly.

How does the disability hearing request process work, exactly?

The request is submitted to the social security office which then forwards the request and the claimant's file to the appropriate Office of Hearings and Appeals.

Sometime after a case has been transferred to OHA, it will be assigned to an Administrative Law Judge who will schedule the case for a hearing date.

Typically, this process takes a number of months (the amount of time will depend on the hearing office, as some OHA locations have more cases and greater backlogs than others).

Of course, while a social security disability or ssi claimant's file is at the Office of Hearings and Appeals, the local social security office will be able to provide very little information regarding the status of a claim.

For this reason, ssd and ssi claimants wishing to know the status of their hearing request should have their representative call OHA on their behalf.

Finding an attorney representative for your Supplemental Security Income disability claim

Having the right help on a social security disability case can very easily make the difference between winning and losing a claim for benefits.

This is particularly true if the case is scheduled for a hearing before an Administrative Law Judge.

With this in mind, deciding the issue of representation and which representative will handle your ssd or ssi disability case is no small matter.

Social Security Disability Representatives can be found in a variety of different listing sources. The yellow pages, internet, legal aid, and the referral service operated by each state's bar association can be useful means for locating qualified representation.

How do you determine whether an attorney, or non-attorney, disability representative is especially suited to handle your social security disability or ssi disability case?

The most effective means by which to gather such information is simply to contact a representative's office and ask questions.

Typically, most individuals engaged in the profession of handling social security disability and ssi claims are fairly busy, due to the large number of claims moving through the system.

For this reason, many claimants share the common complaint of getting meager individualized attention from the attorney or non-attorney who represents them.

Despite this reality, though, claimants can generally gauge the effectiveness of a “potential representative” through initial contacts with their office. For example, is the representative accessible?, does the representative return calls?, does the representative sound knowledgeable and experienced in the matter of social security disability and ssi claims?, etc, etc.

Good representation can be obtained from an attorney or a non attorney representative (many of whom are former disability examiners and social security claims reps). But regardless of the type of advocate chosen, a qualified advocate can make the difference between not winning a case and winning a claim for monthly disability benefits and backpay.

Tip: if your claim for ssd or ssi benefits is denied at the initial claim level, get someone to take your case immediately because, most likely, you will be faced with navigating the major components of the SSA disability appeal process (the reconsideration and ALJ hearing).

One of the few national directories of Social Security Disability Representatives can be found on this web site.

How to get a disability hearing scheduled faster

Getting your social security disability hearing scheduled faster can be somewhat difficult.

However, there are at least a couple of ways to potentially do this.

The first way to potentially speed up your disability hearing is to send a Dire Need letter. In a dire need letter, an ssd or ssi disability claimant points out the severity of their financial circumstances.

In many instances where an individual is in danger of losing access to needed medications, or in danger of eviction or foreclosure, the Hearing Office may choose to expedite an ALJ disability hearing.

Claimants whose situations are especially precarious should draft a detailed dire need letter and forward this to the Office of Hearings & Appeals (OHA) where their hearing is waiting to be scheduled. To this letter should be attached copies of late notices from landlords, mortgage companies, and utilities providers.

A social security disability case for which a hearing has been requested may also be expedited by requesting what is known as an on-the-record review. An OTR review is simply what its name implies. The claimant or the claimant's representative simply requests that the hearing office review the claimant's file, or record, prior to a hearing date.

The desired outcome of such a review is that the claimant's case will be approved without the necessity of waiting for and holding a hearing. Of course, it goes without saying that for an on-the-record review to be granted a claimant's medical evidence must be particularly compelling. In many instances, an attorney or non attorney representative will not entertain the prospect of requesting an OTR review unless a claimant's condition has significantly worsened and this can be supported by medical evidence.

Another way to potentially expedite a disability hearing is to contact the office of a Congressman or Senator. This will launch what is referred to as a congressional inquiry.

Such inquiries typically involve a congressional staff member either calling or writing the hearing office on a social security claimant's behalf.

Congressional Inquiries often have mixed results. But they never hurt a case, and, typically, if they benefit a case, it is at the hearing request level.

Presenting yourself before a Social Security Disability judge

ALJs, or Administrative Law Judges, decide cases mainly on the weight of the medical evidence—which includes xrays and other imaging, lab panels, treatment notes, as well as statements from physicians written on behalf of a social security disability or ssi disability claimant.

However, a Claimant's testimory is taken into account as well.

For this reason, responses to a judge's questions should be full, forthright, and honest. Care should be taken by a claimant not to exaggerate in any way the limitations caused by a physical or mental impairment. ALJ's who hear disability cases hold hundreds of hearings each year (sometimes holding as many as 4-6 hearings in a single day) and are particularly adept when it comes to spotting such attempts.

By the same token, though, ssd and ssi Claimants should never minimize the extent to which their impairments affect them daily.

Therefore, if a claimant's condition, or the pain resulting from that condition, has the effect of restricting the range of motion in a particular joint, the level of strength in a muscle or extremity, or interferes with a claimant's ability to sit, stand, stoup, crouch, reach, grasp (etc, etc) or even sleep for lengthy periods (back pain often has this effect), this should be pointed out to the judge hearing the disability case.

In all cases, the best presentation will simply be candid and honest.

What types of questions are asked of disability claimants by ALJ's. Potentially, there's no limit to the type of questioning a disability judge may employ. Typically, though, questions will regard the most obvious factor surrounding a case: how does the claimant's medical condition, or set of conditions, affect them on a daily basis and how do these functional limitations limit the ability to return to past work, or engage in any other kind of work.

Lastly, though it should always be done in consultation with an attorney or representative, disability claimants are always given the opportunity to have other individuals present at the hearing who may, at the discretion of a judge, give testimony regarding a claimant's condition and limitations.

What do I do if I am denied disability benefits?

If your initial claim is denied, you may appeal at the reconsideration level. At the reconsideration level, you will be able to submit new evidence and your case will again be reviewed. Claims at the initial and reconsideration levels are handled by DDS.

If you are denied a second time, at the Reconsideration level, you can request a hearing through the Office of Disability Adjudication and Review (ODAR). You will get a notice of hearing, which should say whether they plan to have any experts (medical or vocational) testify at your hearing. If they plan to have experts, and you do not already have legal representation, you should reconsider getting a lawyer at this time.

At this level, your case will be heard by an Administrative Law Judge. A hearing before an Administrative Law Judge is an informal process. The judge will ask you questions about your past work, medical conditions, limitations, treatment, medications, and daily activities. It is important to give straightforward answers that explain all of your limitations. If possible, you should try to give real life examples of how your impairments limit you. The chances of success are highest at this level, but are much higher if you have legal representation.

Following a hearing, the judge will usually issue a written decision. A decision can either be fully favorable, partially favorable, or unfavorable. If you get a decision that is not fully favorable, you will want to consider appealing to the Appeals Council. At the Appeals Council level, your case will be reviewed to see if any errors were committed previously. Both ODAR and the Appeals Council are run by the Social Security Administration. If you are denied at the Appeals Council level, you may appeal your case to federal court (a system that is not associated with SSA or bound by its policies). Representing yourself at this stage, however, is very difficult, and may be best left to an experienced representative.

Where can I go if I need more help?

The Social Security Administration’s Web site, provides more information than any other free online resource. (If you do not have Internet access, many local libraries provide free Internet access). In particular, the following documents are available on the Social Security Web site:

Code of Federal Regulations (CFR). Title 20, Part 404 pertains to SSDI. Title 20, Part 416 pertains to SSI. You can use the CFR to check a variety of rules that SSA must follow when determining if you are disabled.

Social Security Rulings (SSRs). An SSR is a ruling by Social Security that provides guidance as to how common situations should be handled. For example, if you have a mental impairment, SSR 85-15 lists what kind of limitations you would need to be disabled if you did not meet a listing.

HALLEX (Hearings, Appeals and Litigation Law Manual). The HALLEX is a policy and procedure manual used by Social Security to provide guidance on how SSA officials should handle appeals. For example, according to HALLEX Section I-2-2-10, all issues to be decided at the hearing should appear in the notice of hearing. This requirement ensures that you have adequate time to prepare your response or to collect evidence.

POMS (Program Operation Manual System). The POMS is the Social Security Administration’s policy and procedure manual that applies to all Initial and Reconsideration claims handled by DDS.

The Social Security Administration’s Social Security Handbook provides comprehensive information about different benefit programs.

Consider hiring an attorney or an experienced representative. Claimants who are represented win much more often than those who are not represented. Usually, you do not have to pay the attorney’s fee in advance. Often, attorneys only get paid if you are approved, and then the Social Security Administration (SSA) will automatically withhold and deduct attorney’s fees from your award to pay your attorney.

If you are unable to pay for representation, there are many programs that will provide free legal representation if you meet certain income and eligibility requirements. Your local Legal Services program can help. You can find a Legal Services program near you, or call Legal Services of New Jersey's statewide legal hotline, LSNJ-LAW™, at 1-888-LSNJ-LAW (1-888-576-5529).

If you are receiving welfare (GA or TANF) benefits, you can also call Legal Services of New Jersey’s SSI Project for representation in your SSI or SSDI claim. The SSI Project can be reached by calling 1-877-576-5774.

This article is from the April 2008 issue of Looking Out for Your Legal Rights®.

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