How to Write a Brief or Letter to the Disability Appeals Council

You'll need to write a letter to the Appeals Council about why the judge's disability denial should be reversed. Here's how.

If an administrative law judge (ALJ) denies your Social Security disability claim at the hearing level, you have 60 days to appeal to Social Security's Appeals Council. This is the last administrative appeal in the disability appeal process (before federal court). The Appeals Council (AC) is responsible for reviewing decisions for significant legal or factual errors committed by the ALJ. If the Appeals Council finds an error that may have affected the decision on the claim, it will "remand" (send back) the case to the ALJ for another hearing, or in rare instances, it may even award benefits on its own. (Learn more about Appeals Council reviews.)

After filing Form HA-520 to request that the Appeals Council review the ALJ's decision, you should send the Appeals Council a short letter (called a "brief") containing your arguments that the case should be sent back to the ALJ for another hearing. Here's a rundown of some best practices for writing briefs to the Appeals Council.

Structure Your Brief As a Letter

Your Appeals Council brief should be written in letter format, with the salutation "Dear Appeals Council Member." The heading should contain your name, date of birth, and Social Security number. Because it can take anywhere from three to twelve months for the Appeals Council to review your case, it's best to submit your brief no more than three months after filing your request for review. Three to four pages is usually sufficient length for an Appeals Council letter.

Reference Page Numbers and Exhibits in the Evidence

Social Security should provide you with a CD containing the evidence used to decide your case. The CD will include your medical records and the ALJ's decision on your case. In your brief, you should provide citations to the particular exhibit and page number that supports your arguments. For example, you might say:

The ALJ erroneously stated that the claimant's cane was not prescribed by a doctor. (ALJ Decision, p. 6.) In fact, the evidence shows that the claimant's treating physician wrote a prescription for the cane on August 13, 2012. (Exhibit 18F/4.)

You may also cite parts of the audio recording of the hearing if, as often happens, the ALJ mischaracterized your hearing testimony in his or her decision. Social Security will provide you with the hearing audio upon request.

Know What Kinds of Arguments Work

When writing your brief, keep in mind that the Appeals Council finds certain kinds of arguments more persuasive than others. What kinds of arguments work? Here are some of the best.

  • The ALJ failed to explain what weight he or she gave to your treating doctor's opinions. Social Security Administration regulations provide that an ALJ should weigh various factors in deciding how much weight to give a doctor's medical opinions regarding your limitations, including whether they are consistent with the other evidence of record. The regulations state that the ALJ, in his or her decision, must provide "good reasons" for the weight assigned to these opinions. If the ALJ gives little weight to your doctor's opinion, ignores the opinion entirely, or doesn't explain the weight he or she gave to the opinion, you may have a good argument that your claim should be sent back to the hearing level.
  • The ALJ didn't obtain testimony from a vocational expert. If the ALJ decides that you're not disabled at step 5 of the disability process, he or she must cite examples of specific occupations that you can perform, along with how many of those jobs exist in the U.S. This can be accomplished only through vocational expert testimony. If no VE testified at your hearing, but the ALJ found you disabled at step five, the Appeals Council may order the ALJ to hold a hearing with a vocational expert present.
  • Your RFC assessment doesn't match the hypothetical question posed to the vocational expert. This simple error is committed with alarming frequency. If the ALJ finds that you're not disabled because your RFC (Residual Functional Capacity) allows you to perform certain jobs, he or she must base that finding on the testimony of a vocational expert (VE). If the VE answered questions based on a particular RFC and the ALJ decision finds you have a different RFC, this can be "reversible error." (To learn more about this, see our article on how vocational experts testify.)
  • The vocational expert's testimony contained errors. VEs generally provide testimony based on an outdated text known as the Dictionary of Occupational Titles. Your attorney may be able to argue that the VE testimony contained significant errors that warrant sending your case back to a hearing. (Here are some tips on challenging a vocational expert's testimony about other jobs.)
  • The judge committed a procedural error. If the ALJ admitted evidence into the record after the hearing, but didn't give you a chance to comment on it, he has committed a procedural error. If you request a supplemental hearing after the judge has admitted evidence after the hearing, the ALJ must grant it, and failure to do so is reversible error. While you may need an attorney's help to locate other procedural errors, these kinds of mistakes are frequently the cause of AC remands.

Don't Waste Time on Losing Arguments

Minor mistakes. Disability claimants sometimes devote too much attention to pointing out relatively minor errors and trivial arguments that, even if accepted, wouldn't affect the outcome of the case. Better to focus your attention on the two or three most critical mistakes and ignore the rest.

Credibility. In the past, ALJs were entitled to a lot of leeway in evaluating the credibility of the claimant and any witnesses. Thus, the Appeals Council was virtually guaranteed to ignore arguments that the ALJ incorrectly assessed someone's credibility. However, an ALJ who didn't find certain testimony or evidence credible was still supposed to provide specific reasons for this, and failure to do so could be "reversible error." In 2016, Social Security actually removed mentions of "credibility" from its regulations and rulings. Today, ALJs are instructed to concentrate on whether a claimant's symptoms are consistent with objective medical evidence and their own statements. A judge's decision must contain specific reasons for the weight given to the individual's symptoms.

Contact a Disability Attorney to Draft Your Appeals Council Brief

Social Security disability is a highly specialized field of law, and the SSA's regulations fill many volumes. If you've gotten to the hearing level of appeal and have still been denied, you may want to consider hiring a lawyer. An experienced disability attorney will be able to review your ALJ decision and craft a persuasive argument to the Appeals Council. Attorneys can be especially helpful in spotting errors by the vocational expert or judge. You can use our lawyer directory to find a disability attorney in your area.

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