If your Social Security Disability benefits are denied again after you have a hearing before an Administrative Law Judge (ALJ), you have the option of appealing your case to the Appeals Council. You must file for an appeal with the Appeals Council within 60 days of receiving your administrative hearing decision. (If you miss the 60-day deadline, there is the possibility of getting special permission to file the appeal if you can show that there was a good reason for missing the date.)
What Happens at the Appeals Council?
The first step that the Appeals Council (AC) takes is to review your case. The Appeals Council will reconsider ALJ decisions only where the findings or conclusion of the ALJ is not supported by the evidence that was available at the hearing or the ALJ makes a procedural error. If the Appeals Council feels the decision was correct based on the evidence in the record and no errors were made, they will deny your appeal. If your appeal is denied, you will have to file a new application in order to receive benefits or go to federal court.
To overturn the ALJ's decision, the Appeals Council must find clear evidence that the decision made by the ALJ was incorrect. For example, if the ALJ reached a denial of benefits decision because he or she did not properly consider medical records from the applicant's treating physician, the Appeals Council will likely reconsider the case. However, if the medical evidence on record could support a decision in either direction (denial or approval of benefits), the Appeals Council will not consider that case even if the AC judge does not personally agree with the decision the ALJ made.
If the Appeals Council decides that the ALJ incorrectly decided your case, one of two things will happen: the Appeals Council will send the case back to the ALJ to reconsider (called "remanding" the case) or the Appeals Council will decide the case themselves. Regardless of the decision made by the Appeals Council, you will receive correspondence from the Council keeping you updated on what they have decided.
Should You File an Appeal With the Appeals Council?
There are several advantages and disadvantages that you should consider before making the decision to file an appeal with the Appeals Council.
Advantages of Appealing to the Appeals Council
- You retain the right to bring your case to court. If you do not appeal to the Appeals Council, you can no longer pursue receiving Social Security benefits under your current application.
- New medical evidence may still be considered. New
medical evidence that is dated on or before the date of your
administrative hearing decision that is determined to be new and
material to your case can be considered as part of your total records
that are reviewed by the Appeals Council.
- Material evidence includes any medical evidence that could affect the Appeals Council decision. For example, new records from your physical therapist showing new physical limitations would be material in a case where you are claiming that back injuries are preventing you from returning to work; notes from your ophthalmologist that report slight vision deficiencies would not be material in your case.
- If new medical evidence shows a critical or disabling condition, the Appeals Council will expedite your review.
Disadvantages of Appealing to the Appeals Council
- The appeals process can be very time consuming. Nationwide he average processing time for the Appeals Council is 345 days.
- You cannot file a new application for benefits. In deciding to file an appeal with the Appeals Council, you are preventing yourself from filing a new application until the Appeals Council has reached a final decision on your case. (Learn more about why you can't file an appeal and a new application.) If your original case ends up being denied and you file a new application, the delay in filing a new application may affect your onset date and back payments from Social Security.
- New medical evidence may not be allowed in. If you have new medical evidence that is dated after the date of the administrative hearing decision, the evidence will not be allowed in. The Appeals Council will return the new evidence to you with an explanation of why it is not being considered in your case.
Disadvantages of Appealing a Partially Favorable Decision
A partially favorable decision is one in which benefits are awarded to you, but your onset date of disability is changed to a date that is later than the one listed on your application. This results in fewer back payments that you are owed from Social Security.
If you chose to appeal a partially favorable decision in order to get an earlier onset date, there are several differences from denials that you should consider.
- You will not receive benefits during the appeals process.
- If the Appeals Council believes the ALJ's decision was incorrect,
your entire record will be reviewed. The Council could make the
- Make no changes and keep the decision as is.
- Change your disability onset date to the one listed on your application or to some other earlier date.
- Change your disability onset date to a later date, thus further reducing your back payments.
- Find you are not disabled, meaning you will receive no benefits. (Also see having a favorable decision overturned.)
Don't Appeal to the Appeals Council Without a Lawyer
If you're trying to decide whether to file a new application or file a request for review with the Appeals Council, don't consider appealing further unless you have a lawyer. It can be a waste of time to go to the Appeals Council without a lawyer, and it could take up to a year of your time!
When appealing to the Council, it's important to present the best case to the Appeals Council judges in the most efficient way possible. The best way to do this is to write a brief that outlines your case, your arguments for finding a favorable decision (including ALJ errors), and any new medical evidence and how it applies to your case. This can be overwhelming for an individual who is trying to receive disability benefits in order to support themselves. Hiring an attorney who is familiar with writing such briefs and the legal arguments for approving disability decisions can increase your chances of winning a positive decision from the Appeals Council.
If you can't find a disability lawyer who will take your case to the Appeals Council, it means you don't have a strong case--preparing a case for the Appeals Council is time consuming, and a lawyer won't spend the time unless there's a good chance of winning benefits. Read more about the reasons you could win disability benefits at the Appeals Council.