878 days. That’s the amount of time it took for Adrianne Gunter, an unemployed Philadelphia resident suffering from multiple sclerosis for many years to receive a decision during the appeals process for a denial of Social Security disability benefits.[1] As Gunter’s case demonstrates, obtaining benefits can be time-consuming and difficult. The Social Security Administration denies nearly 65 percent of initial applications for Social Security benefits.[2]
There are many reasons the Social Security Administration may deny an application for benefits. An applicant can be denied because she hasn’t accumulated enough work credits or because she’s applied prior to turning 62 years old. An injured worker applying for Social Security Disability Insurance benefits can be denied because his injury isn’t severe enough to disable him or because alcoholism caused the impairment.
Any benefits denial can be appealed, but appeals are most common in cases of denials of disability benefits. The definition of disability embodied in the Social Security Act and its regulations is strict, as social security is designed to redress only the most catastrophic mental or physical injuries. Appeals of denials of disability benefits are more common than appeals of denials of retirement benefits because the Social Security Administration hearing officer has a great deal of discretion to determine whether an employee is disabled after reviewing an application. By contrast, retirement and survivor benefits are more mechanical and straightforward.
Whatever the reason for denial, the Administration provides the applicant with a letter explaining the reasons for the denial and describes a pathway for those seeking reconsideration. In this module, we will approach the appeals process, discussing how it unfolds, an applicant’s right to representation and what an applicant must provide during each step of the process to qualify for benefits.
How to Appeal
The Social Security benefits applicant may begin the appeals process immediately after a denial of benefits. The request for reconsideration must be in writing and must be received within 60 days of the date that the applicant received the denial. The appeals form, Form SSA-561, is available on the agency’s website.
There are three ways to file an appeal. The first is for the applicant to visit his local Social Security Administration office and file it in person. There’s an office in every state and the benefits denial letter will list the nearest one. When at the office, the applicant can meet with a claims representative and file all applicable forms with her.
The second method is to appeal by mail. Upon request, the Social Security Administration will mail the applicant the appropriate appeal form, as well as a Form SSA-827, which is an Authorization to Disclose Information to the Social Security Administration. This form is designed to:[3]
- ensure the claimant has all the information necessary to make an informed consent;
- make it obvious to sources that the form contains all the elements and statements legally required to be on an authorization form;
- ensure claimants are clearly advised of the specifics of the disclosure; and
- maximize the efficiency of the form, as permitted by law, to support electronic commerce with providers.
The third, and most commonly-used, method to appeal is to appeal online at the Social Security Administration’s website. This is the fastest method of appeal and the applicant can print a confirmation to prove that the appeal is timely.
Representation During the Appeal
Congressman Brendan Boyle (D-PA) has made it one of his congressional priorities to reduce the massive Social Security appeals backlog. He recently said that an important reason for this backlog is that many appellants don’t know of their rights to representation until the latter stages of the appeals process. He argues that if an appellant knows that she can have the help of an attorney, the appeal may be granted, and the application resolved earlier in the process.
An applicant denied benefits can have a representative assist with the appeal in all four stages. The representative can, but need not, be an attorney. If the applicant hires an attorney, the representative must have the right to practice law before a state or federal court and must be is in good standing with her state bar. Federal regulations require that non-attorney representatives must be of “good character and reputation” and capable of giving valuable help. The Social Security Administration may refuse to allow a person to be a representative if it does not believe the person is qualified and may suspend or disqualify people from serving as representatives.[4] There are over 30,000 attorney and non-attorney representatives participating in SSA disability hearings across the United States.[5]
The representative can act on the applicant’s behalf before Social Security by getting information from the applicant’s Social Security file; obtaining medical records or information to support the applicant’s claim, attend any interview, conference, or hearing with the applicant and help the applicant or witnesses prepare for a hearing.
An applicant can pay a representative a fee, but the Social Security Administration must authorize the fee agreement. The Administration implements this rule to prevent representatives from taking advantage of a disabled or indigent applicant. The fee cannot be more than 25 percent of past-due benefits or $6,000, whichever is higher.[6] After selecting a representative, the applicant must fill out a Form SSA-1696 to let the Administration know that the representative will counsel the applicant during the appeals process and that the representative is complying with the federal fee regulations.
The Appeals Process
There are four levels of appeal: reconsideration, hearing by an administrative law judge, review by the Social Security Appeals Council and federal court review.
The Appeals Process: Reconsideration
The first level is a reconsideration, where the applicant or the representative must ask in writing for reconsideration of a hearing officer’s denial within 60 days of the date which she received the written notice of the initial determination. During the reconsideration, the Social Security Administration will review its initial determination under the same staff review process as is assigned to initial applications, but a different hearing officer or staff member within the office will make the assessment. Most reconsiderations involve a review of an applicant’s files without the need for the applicant or representative to be present.
During the reconsideration, the applicant can present evidence that was not initially submitted.[7] For example, assume a construction worker injures his back while working and cannot work for a significant amount of time without being in pain. He applies for SSDI benefits, but the Administration denies the claim because he didn’t provide enough medical evidence that fully described the physical impairment and symptoms to demonstrate disability, as defined by the Social Security Act. After the denial, the injured worker visits an orthopedic specialist, who takes x-rays and other images of his back, demonstrating the severity of his injury. During the reconsideration step of the appeals process, the applicant can present this additional medical information as well as evidence of treatment regarding the impairment. The new evidence may be considered and may result in awarding of benefits.
The Appeals Process: Administrative Law Judge Hearing
If an applicant receives an unfavorable decision at reconsideration, he can take his appeal to the next level by filing a Form HA-501, a Request for Hearing by an Administrative Law Judge, known as an ALJ. The Social Security Administration oversees the country’s largest system of administrative adjudication with some 1,300 administrative law judges who work in 169 hearing offices throughout the United States.[8]
Unlike the disability examiner during the reconsideration step who may defer to the Administration’s original action unless he finds egregious error, an ALJ at a disability hearing has more flexibility. The ALJ reviews the evidence without owing deference to the Agency and can make makes findings of fact, and decisions as to the rights of the applicant without regard to any earlier determinations.[9]
The hearing with the ALJ is like a trial. The applicant may ask the ALJ to use subpoena power to compel certain witnesses to appear. The ALJ can ask questions of the applicant and any witnesses and all parties testify under oath, under penalty of perjury.
An ALJ may also bring in vocational experts to help determine the claimant’s likelihood of being able to re-enter the workforce and can consider any relevant factors, including condition, education and skills. The hearing before the ALJ also represents the first opportunity of an applicant to make an in-person argument as to why she should receive benefits.
The Administration may pay the applicant for travel costs if the distance to the hearing from her home is more than 75 miles. If an applicant wishes to be reimbursed for travel expenses, she needs to make this request when filing her Form HA-501. Additionally, if the ALJ requests additional medical exams or tests, the Administration will pay for the exams.
Even with these trial-like procedures in place, the Social Security Administration maintains that the hearing is “informal.” The hearings are often held at conference tables rather than court rooms and the rules of evidence do not apply. The ALJ can accept certain evidence, such as hearsay, that would not be admissible at a trial.
ALJs play a significant role in the Social Security disability claim process. The Administration reviews about 2,000,000 applications for Social Security Disability Insurance and Supplemental Security Income benefits yearly.[10] During the initial determination, it grants less than 40% percent of them. About 35% of applicants appeal their denials and more than half of these appeals are successful after the hearing before the ALJ.
The main reason that ALJs reverse so many denials is not that Administration reviewers tend to make poor decisions or ill-conceived denials. Rather, by the time an ALJ hears a case, the applicant can often provide more evidence of disability or other eligibility factor than during the initial application. For example, a disability like cancer can progress and get worse as more time passes. Thus, the passage of time can strengthen the worker’s disability claim and the applicant can obtain and then submit critical evidence that could persuade the ALJ that he should be awarded disability benefits.
The Appeals Process: The Appeals Council
If the ALJ denies an application for benefits, an applicant may appeal directly to the Appeals Council of the Social Security Administration by filing a Form HA–520: Request for Review of Hearing Decision. To obtain Appeals Council review, a claimant must file this form and appeal the decision within 60 days after it’s issued. The Appeals Council provides the final administrative review of benefit claims.
The Appeals Council is currently made up of about 57 Administrative Appeals Judges, 46 Appeals Officers, and several hundred support personnel. The Appeals Council is in Falls Church, Virginia with additional offices in Arlington, Virginia, and Baltimore, Maryland.[11] The average processing time for receiving a decision from the Appeals Council is 395 days.
There are four grounds upon which the Appeals Council can review and potentially reverse an ALJ’s decision. They are:[12]
- where there has been an abuse of discretion by the Administrative Law Judge;
- where there has been an error of law;
- where the conclusions are not supported by substantial evidence; and
- where there is a broad policy issue involved which may affect the general public.
Should the Appeals Council choose to review the case, it can issue a decision itself or remand the application to an ALJ for a second hearing. The Appeals Council will only review a case based on additional evidence if the evidence is new, material, related to the period on or before the hearing decision and there is a reasonable probability the evidence would change the outcome. The Appeals Council will send the applicant and her representative a copy of the decision it reaches on a request for review and will explain the reasons for this action.
The Appeals Process: Federal Court Review
If an applicant disagrees with the Appeals Council’s decision, or if the Appeals Council decides not to review the case, the applicant can file a civil suit in federal District Court within 60 days after he receives the notice of Appeals Council action.
Federal courts are required to give deference to the conclusion of the administrative review process. The federal court will uphold the agency action unless it finds that:
– The administrative decision is not supported by “substantial evidence,” or
– The administrative judge and/or appeals council made an egregious error of law.
When looking at the issue of whether the decision is supported by substantial evidence, the federal court can’t decide the facts anew, reweigh the evidence or substitute its judgment for that of the agency. It must affirm the decision even the court believes that the weight of the evidence is against it as long as the decision is supported by substantial evidence, which means evidence that a reasonable person would accept as adequate to support a conclusion.[13] Since substantial evidence means only evidence that is “more than a mere scintilla,”[14] the odds are stacked against the applicant when appealing the administrative determination to a court.
In one case, a benefits applicant claimed she was disabled and could not continue working as a teacher’s aide or bus driver because of lumbar disc disease, perpetual back pain, depression and mild mental retardation.[15] The ALJ who reviewed her case found that she wasn’t disabled within the meaning of the Social Security Act and denied her benefits. After the Appeals Council reviewed her application and agreed with the ALJ to deny her benefits, she filed a complaint in the district court alleging that substantial evidence didn’t support this decision. The court sided with the ALJ and found that the denial was supported by substantial evidence on the record.
The court ruled that there was evidence that medication alleviated her depression and that she was not so unintelligent as to require the administrative law judge to question her mental capacity and order a consultative examination on his own motion. The applicant had graduated from high school with a regular diploma, successfully completed courses in cooking and cosmetology, had obtained a commercial driver’s license and had worked as a teacher’s aide. These facts were sufficient to support a finding that the applicant was not disabled.
If the district court determines either that the agency’s decision was not supported by substantial evidence in the record, or that it was inconsistent with the controlling legal standards, the court can remand the claim for further administrative proceedings, such as a rehearing, or simply order the Social Security Administration to calculate and award the applicant benefits.
[1] Claudia Vargas, “After 878 days, federa lgovernment tells West Philly woman with multiple sclerosis that she is disabled; may apply for benefits,” March 15, 2018.
[2] http://www.brizendinelaw.com/Social-Security-Disability-SSI-And-SSDI/Advice-For-Appealing-A-Denial.shtml
[3] https://www.ssa.gov/disability/professionals/ssa827_informationpage.htm
[4] U.S. C.F.R. § 404.1705.
[5] Drew Swank, “Recent Development: The Social Security Administration’s Condoning Of and Colluding With Attorney Misconduct,” 64 Admin. L. Rev. 507, (2012).
[6] https://www.ssa.gov/forms/ssa-1696.pdf.
[7] https://secure.ssa.gov/poms.nsf/lnx/0427001001.
[8] Jeffrey Wolfe, “Civil Justice Reform in Social Security Adjudications,” 64 Admin. L. Rev. 379, (2012).
[9] 42 U.S.C. § 405(b)(1).
[10] Jason Vendel, “General Bias and Administrative Law Judges: Is There a Remedy for Social Security Disability Claimants?,” 90 Cornell L. Rev. 769, (2005).
[11] https://www.ssa.gov/appeals/about_ac.html.
[12] Elizabeth Ferguson, “Untangling ‘Operation Common Sense’: Reopening and Review of Social Security Administration Disability Claims,” 87 Mich. L. Rev. 1946, (1989).
[13] Bloodsworth v. Heckler, 703 F.2d 1233, (1983).
[14]Richardson v. Perales, 402 U.S. 389, (1971).
[15]Ingram v. Comm’r of SSA, 496 F.3d 1253, (2007).