You have the right to appeal a denial of your disability claim by an administrative law judge (ALJ) and the refusal of the Social Security Appeals Council (AC) to review your case or reverse the decision of the ALJ. (Read about the Appeals Council here.)
How to Appeal to Federal Court
You have 60 days from the date of the Appeals Council decision to appeal. This is done by filing a civil complaint with the United States District Court in your area. A civil complaint is a brief statement of facts and allegations that tell the court what your case is about.
Under federal law, you cannot sue the Social Security Administration (SSA) directly. The defendant in a complaint against the SSA is whoever the current Social Security commissioner happens to be when the complaint is filed.
Once you have written your complaint, it must be filed with the proper court. Use the federal district court locator to find the court for your area.
The SSA cannot help you with a complaint (or brief) for a federal appeal. You can either file the complaint yourself or hire an attorney who is experienced in appealing disability denials at the federal level to assist you.
If you choose to appeal the denial on your own, you must follow the federal court rules or you risk having your complaint dismissed. For more information about the procedural rules for filing a federal complaint, you can visit the United States Courts website.
What Happens After the Complaint Is Filed?
After you have filed the complaint, the court will issue a summons. You must serve the summons and a copy of the complaint on the SSA. The SSA has designated locations, called the Office of the General Council (OGC), where the summons and complaint is served. Find the address and location of your local OGC and bring the summons and complaint to the OGC.
After the SSA has been served, an attorney for the SSA will file an answer. An answer is essentially a brief explanation of why the ALJ and AC were correct in denying your claim.
You'll then need to file an opening brief.
What Is a Brief and Do I Really Need to File One?
A brief is a legal document that explains a your position in detail to the court. In an SSA appeal, the first brief filed by the claimant (you) is called an Opening Brief. An Opening Brief analyzes the ALJ’s decision in light of the medical evidence and any testimony, and aims to persuade the federal judge that the ALJ failed to properly consider the evidence or to otherwise make his or her decision in accordance with the law. No new evidence may be offered in an Opening Brief.
Federal appeals are won or lost on the written Opening Brief and they are absolutely necessary in the federal appeals process. For this reason, you really need to hire an attorney who is experienced in writing federal appeals briefs for disability denials.
What Happens After the Briefs Are Filed?
Once the Opening Brief is filed, the SSA then has the opportunity to file a Response Brief. A Response Brief is the SSA’s chance to explain why you are wrong and why the ALJ’s decision was correct. After you (or your lawyer) may file a Reply Brief, which is one last chance to defend your position and point out weaknesses in the SSA’s argument. Sometimes the court will schedule oral (in-person) arguments, but this is rare.
Once the briefs have been filed and the oral argument (if there is one) has been held, the federal judge who heard your case will make a decision and issue a written opinion. This process can take at least a year.
How Will The Judge Decide the Case?
The judge may decide to do any of the following:
Remand the case. Sometimes a federal judge will remand, or send back, a claim to the ALJ to be reconsidered. When this happens, the judge will often direct the ALJ to look at factors and issues that were not fully considered in the original hearing and decision. If a case is remanded, it is not unusual for it to be approved by an ALJ, because he or she will be wary of making a decision that may ultimately be overturned by a federal judge.
Affirm the ALJ's decision. If the federal judge affirms the ALJ’s and AC's decision, your disability claim will be denied. Although it is possible to appeal to the Federal Circuit Court, the process is more difficult and more expensive.
Reverse the ALJ's decision. If the federal judge agrees with your position, he or she will overturn the ALJ’s opinion and award you disability benefits.
How Much Will I Have to Pay an Attorney?
A disability attorney cannot collect a fee unless benefits are awarded to you and the court approves the fee. After a favorable decision (approval of benefits) is issued, your attorney will file a fee petition under the Equal Access to Justice Act (EAJA) asking that reasonable attorney’s fees be paid. This amount cannot exceed 25% of the amount of disability back benefits awarded to you. The SSA will then withhold this amount from your award and pay it directly to the attorney. If you filed a waiver for filing fees, this amount will also be held back from your award.