Should I Appeal My Disability Denial to the Appeals Council?

If you're denied Social Security disability benefits at the administrative hearing, you should appeal further in only a few situations.

By , J.D. · Albany Law School
Updated by Diana Chaikin, Attorney · Seattle University School of Law

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 an appeal with the Appeals Council within 60 days of receiving your administrative hearing decision. (If you miss the 60-day deadline, it's possible to get special permission to file the appeal if you can show you had a good reason for missing the date.)

What Happens at the Appeals Council?

Before accepting your case, the Appeals Council (AC) will review the decision to see if the judge made an "error of law." An error of law is a mistake the ALJ makes in applying the rules of the Social Security Administration.

Some errors of law include missing an important piece of medical evidence or incorrectly classifying your past relevant work. Simple mistakes of fact—like the ALJ saying that you have two cats instead of three—aren't enough for the council to find an error of law.

Why Doesn't the Appeals Council Accept All Cases for Review?

The council will reconsider ALJ decisions only where the judge made an error of law. If the council finds that the judge's decision was based on substantial evidence in the record and that the judge didn't make any procedural errors, they will deny your appeal. If your appeal is denied, you'll have to either start over with a new initial application or go to federal court. (20 C.F.R. 404.970.)

To overturn the ALJ's decision, the Appeals Council must find clear evidence that the decision made by the ALJ was incorrect. Hearing judges are given a lot of deference, meaning that the council doesn't want to second guess their decisions. Because ALJs have the opportunity to speak with you in person and the AC doesn't, the council usually finds that the hearing judge is better at determining whether you're disabled than they are.

Judges are still human and can make mistakes, though. For example, if you received an unfavorable decision because the ALJ overlooked a medical source statement from one of your doctors, the Appeals Council will likely reconsider the case. But if the medical evidence could support a decision either way (favorable or unfavorable), the council will leave the judge's decision alone, even if they wouldn't have arrived at the same conclusion.

What Happens If the Appeals Council Reviews a Case?

If the AC decides that the ALJ incorrectly decided your case, one of two things will happen:

  • The council will send the case back to the ALJ with instructions to hold another hearing (called "remanding" the case), or
  • The council will decide the case themselves.

You'll receive a letter in the mail from the Appeals Council letting you know what they decide.

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 a request for review (formal appeal) by the council.

Advantages of Appealing to the Appeals Council

  • You can still bring your case to court. If you don't file a request for review with the Appeals Council, the hearing judge's decision will remain unchanged and you can't go any further in your current application for Social Security disability benefits. But if the AC finds that the judge made a mistake, you can have another chance at a hearing.
  • You might be able to submit some additional medical evidence. For example, if you had an MRI on your back a week before the hearing that showed severe degeneration, and the ALJ denied your claim because there wasn't any imaging on your back, the council will consider this evidence when deciding how to proceed. (If the evidence shows a critical or disabling condition, the Appeals Council will expedite your review.)

Disadvantages of Appealing to the Appeals Council

  • The appeals process takes a long time and doesn't often result in approval. It can take the Appeals Council anywhere from four months to a year or more to handle a claim. Additionally, the council only reviews cases about 20% of the time.
  • You can't file a new application for benefits while you wait. If you decide to file an appeal with the AC, you're not allowed to file a new initial application until you get a decision from the council. If the Appeals Council denies your appeal and you later file a new application, you might not get as much in back due benefits from Social Security because you need to wait for the AC to make a decision.
  • New medical evidence may not be allowed in. Doctor's notes or hospital visits that happen after the date of the hearing decision won't be considered by the Appeals Council. The council will return the new evidence to you with an explanation of why they can't consider it in your case.

Should I Appeal a Partially Favorable Decision?

Receiving a partially favorable decision means the judge agrees with you that you're disabled, but doesn't agree with when you became disabled. Partially favorable decisions don't affect your ongoing disability benefits, but you'll receive less in back pay, and you might have to wait longer to receive Medicare (if you're eligible).

If you choose to appeal a partially favorable decision in order to get an earlier onset date, consider these differences from appealing unfavorable decisions:

  • You won't receive benefits during the appeals process even though you were approved for benefits. (Remember that the appeals process can take about a year, so this can be a significant amount of money that you'll put off receiving.)
  • The Appeals Council doesn't just review whether the judge picked the right date that you became disabled. They'll look at the entire record to see if the ALJ made the right call. Although unlikely, this means that the AC can change your disability onset to a later date (and further reduce your back pay) or even decide that you're not disabled at all.

Should I Appeal a Dismissal of Hearing Request to the AC?

A dismissal isn't the same thing as a denial. When an ALJ denies your case, that means the judge has made a decision on the "merits" (the substantive facts and medical evidence). Dismissals are when the ALJ declines to hear your case on procedural grounds, without getting the chance to form an opinion about whether you're disabled.

By far the most common reason for a dismissal is failing to attend a hearing. If you don't provide a "good cause" for why you missed the hearing—such as an unforeseen emergency—the judge will dismiss your hearing request. You can ask the Appeals Council to "vacate the dismissal" within 60 days of the date you received the dismissal notice. In your appeal, you'll need to state why you think the ALJ was wrong to dismiss your case.

If the Appeals Council agrees to vacate the ALJ's dismissal, you can submit another request for a hearing on your claim. But if the council doesn't vacate the dismissal, you'll need to start over by filing another application. (20 C.F.R. 404.960.)

Don't Appeal to the Appeals Council Without a Lawyer

If you're trying to decide whether to file a new application or request review by the Appeals Council, you'll save a lot of time and energy by consulting an experienced disability attorney. The Appeals Council doesn't often overturn ALJ decisions, so you can increase your chances of success with an attorney on your side who can write a brief to the council about how and why the ALJ made errors of law.

Updated April 10, 2024

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