firm

SSI & SSDI FAQs »

Appeals After Your ALJ Hearing

1. What if I lose at my hearing, what next?

If you lose your case at a hearing before an administrative law judge, you will have 60 days from the date to receive your “Notice of Decision-Unfavorable” in which you can appeal to the Social Security Administration and the Appeals Council in Fall’s Church Virginia.

2. What happens at the Appeals Council?

At the Appeals Council, you will have the opportunity to write and set forth the reasons why you or your attorney think the appeals administrative Law judge was wrong in not granting you your benefits.  Then a panel of judges will look at the evidence in your case to determine whether the ALJ made a significant legal or factual decision in denying you your benefits.

3. Can I file additional medical documentation that was not available when the ALJ heard my case, so that the Appeals Council can consider it?

Yes, you may supplement the record after your hearing; as long as the Appeals Council has not made its decision in writing, you may submit additional evidence. It needs to be evidence that was not in the court’s record at the time of your hearing or submitted subsequent to your hearing that was not addressed or considered by the court in its decision after your hearing

3a. Can I file an appeal to the Appeals Council and re-file a new claim as well?

No. Unfortunately you must choose one the other. If you file a new claim you can only claim benefits back to the date of your hearing. By failing to prosecute your appeal to Appeals Council you will lose valuable rights and benefits if the ALJ was wrong.

4. If I am denied my benefits, how long do I have to appeal my case to the  Appeals Council?

You will have 60 days from the receipt of your “Notice of Decision- Unfavorable to file your appeal to Falls Church Virginia where the Appeals Council sits.

5. What grounds can a Claimant assert as the basis of error committed by the ALJ?

There are many grounds upon which an ALJ may be reversed.  Often, with unrepresented claimants, the claimant will not know what questions to ask, and, as responsive as an ALJ may be to an unrepresented claimant, the judge is not in the best position to know how your case should be presented.  So, error can and may occur.

6. When I think that an ALJ did not adequately consider my pain, what would be grounds for me to assert on appeal?

You might want to assert, for example that “The ALJ failed to properly evaluate the claimants subjective complaints of pain and dysfunction that can reasonably be accepted as consistent with the objective medical evidence and provide adequate rationale in accordance with disability regulations pertaining to evaluations of symptoms based on the requirements of 20 CFR 404.1529 and 416.929 and Social Security Ruling  96-7 p.”  (You may refer to the Appendix below in this section or elsewhere on this website where these laws, References and Social Security Rulings, SSRs, appear.)

You may also decide to assert that “The ALJ failed to properly evaluate and consider the location, duration, frequency, and intensity of pain and other symptoms” as a basis for your appeal.

7. What if the ALJ did not consider or address the side effects of my medications on my employability?

An ALJ must consider both precipitating and aggravating factors of your disability and the type, dosage, effectiveness, and side effects of medications.  So, you may want to say that “The ALJ failed to properly evaluate and consider both precipitating and aggravating factors of my disability and the type, dosage and effectiveness of my medications.”

One might also allege that “The ALJ erred in failing to take into account the effect of medications on Claimant’s residual functional capacity in determining disability, in violating of SSR 96-7.”

8. What if the ALJ fails to consider my need for medical care and treatment that will occur on a regular basis, or the absences I will probably have for this medical care or just being too sick to work a few days or more per month due to my sickness?

The ALJ must consider these things in his or her decision.  You may want to assert that “The ALJ failed to consider the claimant’s need to accommodate his/her physical and/or mentally related symptoms, need for medical treatment and absences related to symptoms and/or medical treatment.”

9. What if I feel that the ALJ did not really pay attention to what my own doctors had to say about my illness?

You might want to state that “The ALJ failed to give proper consideration and weight to the records and opinions of treating sources pursuant to Provision of 20 CFR 404.1527 and 416.927 and Social Security Rulings 96-2p and 96-5p and 96-6p and adequately explain the weight given to such opinion evidence.”

“The ALJ failed to consider additional medical records submitted to the ALJ prior to the entry of the ALJ’s decision in this case.” Or “The ALJ erred in failing to accord adequate weight to the opinion of my treating physician.” Or “The ALJ erred in improperly discounting the opinions of my treating physician Dr. ________ stating without basis in fact or reason as to how or why the treating physician’s opinions appear to rest at least in part on an assessment of an impairment(s) outside the doctor’s area of expertise and were rendered less than persuasive,” or “The ALJ erred in not finding Dr. _______‘s opinions persuasive stating without basis in fact or reason that the opinions appeared to be internally inconsistent.”

10. What if the judge disregarded the RFC form that my doctor filled out for me that I think says I am disabled?

You might want to state that: “The ALJ failed to give proper consideration and weight to the records and opinions of treating sources pursuant to Provision of 20 CFR 404.1527 and 416.927 and Social Security Rulings 96-2p and 96-5p and 96-6p and adequately explain the weight given to such opinion evidence.” Or

“The ALJ failed to consider additional medical records submitted to the ALJ prior to the entry of the ALJ’s decision in this case.” Or “The ALJ erred in failing to accord adequate weight to the opinion of my treating physician.” Or “The ALJ erred in improperly discounting the opinions of my treating physician Dr. _______ stating without basis in fact or reason as to how or why the treating physician’s opinions appear to rest at least in part on an assessment of an impairment(s) outside the doctor’s area of expertise and were rendered less than persuasive,” or “The ALJ erred in not finding Dr. ________‘s opinions persuasive stating without basis in fact or reason that the opinions appeared to be internally inconsistent.”

11. What if the Vocational Expert (Evaluator) at my hearing was never asked by the ALJ about the limitations put on by my own doctor or that from other doctors who either evaluated me for the SSA or reviewed my file?

The hypothetical questions framed by the ALJ must reflect the record as a whole.  A judge cannot “cherry-pick” from the record, so if that is what you believe that the judge did you may assert that “the questions framed by the ALJ did not reflect the specific capacity/limitations established by the record as a whole.”

Or “The ALJ erred in failing to develop the record by not contacting the treating physician to request additional evidence and/or clarification regarding claimant’s impairments or residual functional capacity, as requested by 20 C.F.R. ‘404.1512(e).”

Or “The ALJ failed to develop the record, in that ______________________” (Insert the basis you feel is appropriate).

Or “The ALJ failed to properly evaluate the evidence and adequately explain the conflicts in the evidence, and why greater weight was given to one source as opposed to others which would have adequately supported an award.”

12. What if there was plenty of evidence on my behalf that outweighed the evidence that was of record against my being found disabled?

An ALJ must adequately weigh the evidence and explain the conflicts in the evidence and resolve them.  If you feel that this happened to you may want to allege in your appeal that “The ALJ’s denial of benefits was against the greater weight of the evidence and is not adequately supported by the evidence of record.”

I think that the ALJ called me a liar, in essence, because he just did not believe my testimony and did not explain why he/she felt I was less than fully credible. How do I appeal that?

The ALJ must adequately assess your credibility and state reasons why he believed or disbelieved you at your hearing.  If you think that that happened, you may assert in your appeal that “The ALJ failed to adequately assess or evaluate my credibility.”

12a. What if I am indigent or without adequate funds or insurance to pay for my medical care, is that a grounds that an ALJ must consider in denying my benefits?

Yes.  An ALJ cannot just deny you benefits because you have had no medical care as a result of poverty or other circumstances outside of your control.  For example, if you think the ALJ was unreasonable in not sending you out to be medically examined by a doctor on the SSA list, you may allege that “The ALJ erred in not having me evaluated medically by a medical doctor.”

Or “The ALJ erred in failing to comply with SSR 96-7p in discrediting claimant for claimant’s failure to obtain treatment without considering claimant’s valid and undisputed reason of lack of funds.”

12b. What if the judge wrongly decided I could go back to medium work when all I can do is light work or sedentary work?

You may want to state in your appeal that “The ALJ’s decision that the claimant can do “medium” duty work is not supported by the evidence of record and ignores uncontroverted evidence of record by Dr._______________ (insert record evidence) and/or treating physicians that place the claimant at a “light’ duty exertional capacity or less which, based on the claimant’s age, education, transferable job skills or lack there of would mandate a finding of disabled pursuant to Pt 404, Sub Pt. P, App.2, 201-202.

Or “The ALJ has failed to adequately articulate the bases for finding the claimant capable of medium duty work or for accepting the opinions of evaluating or non evaluating sources over those whom are considered “treating” sources concerning the claimant’s residual physical or psychological ability to engage in full-time employment.”

13. What if my pain or depression prevents me from concentrating on simple one or two-step tasks throughout the day, is that something the ALJ has to consider if I testify about it or my doctors have written about this and those reports are in the record?

The ALJ must take into consideration any deficits you may have in memory, focus, concentration, persistence or pace. If you testify about this, or if the physicians have written about this, and it is part of your record, you should probably allege that “The ALJ erred in failing to take into account my limitations in the ability to maintain attention, concentration, and pace in assessing my residual functional capacity.” Or “The ALJ failed to properly assess my RFL by failing to properly posit appropriate hypotheticals to the VE.”

14.  If I suffer from obesity and it is not my primary disabling condition, must the ALJ consider the effects of obesity on my residual physical capacity in determining if I am disabled or not?

An ALJ must consider obesity and its overall impact on your ability to work.  If the ALJ failed to take your obesity into consideration you may want to allege that “The ALJ failed to take into consideration the claimant’s obesity and its effects on the claimants Residual Functional Capacity.”

15. If a Vocational Expert testifies in my case and says that the jobs he thinks I can do are not listed in The Dictionary of Occupational titles or are not consistent with that book, how do I appeal that?

If the Vocational Expert testified that you, the claimant, could return to a job that had no D.O.T. number, you may state that: “The VE’s testimony was not consistent with the Dictionary of Occupational Titles and was not a competent substantial basis upon which the ALJ’s opinion should have been based.”

16. Is there anything else I should put into my appeal to The Appeals Council?

Yes, you may want to include the following language in your appeal:

“Based on the foregoing and arguments accompanied herewith, the claimant specifically requests the Appeals Council to consider the entire case to determine whether review should be granted pursuant to 20 C.F.R.’ 404.970(a). The foregoing list of errors is not exhaustive and only represents the more significant errors upon which the Appeals Council could readily determine that remand or reversal is required. The Appeals Council is required to evaluate the entire case to determine if any other basis for granting review exists as set forth by 20 C.F.R. ‘ 404.970(a). If the Appeals Council does intend to limit its review to only those issues specifically raised herein, the claimant hereby requests specific notice of such intent as well as the opportunity to submit additional arguments within 30 days of receipt of such notice.”

And “Based on the foregoing, the claimant respectfully requests that the Appeals Council reverse the ALJ’s decision and award benefits. Alternatively, the Appeals Council should remand this matter for further proceedings as set forth herein.”

17. What does an appeal look like?

Your appeal is commonly called a “Request for Review.”  It is also known as form HA-520.  You may also write a letter setting forth the basis of your appeal.

18. Are there any special forms that I need to use to appeal my case to the Appeals Council?

Yes.  You will need to obtain and file a “Request for Review of Hearing Decision/Order,” Form HA-520-US (5-2003) ef (05-2005) from the Social Security Administration.

19. What form do I have to complete and file to do this again, and do I have to include my most recent address and my Social Security Number?

You will have to file form HA-520-U5 also known as a “Request for Review of Hearing Decision/Order” with all updated information along with your Social Security Number.

20. To where do I send my Request for Review of Hearing Decision/Order?

The form must be sent to:
Appeals Council
Office of Hearings and Appeals,
Social Security Administration
5107 Leesburg Pike
Falls Church, VA 22041-3255

21. How and when do I send Request for Review of Hearing Decision/Order?

You must send your “Request for Review of Hearing Decision/Order” certified mail return receipt requested preferably, within 60 days of receiving your unfavorable decision from the ALJ.

22. What do you advise with actions before the appeals council?

The Appeals Council will tell you the following instructions, all of which is considered pretty much standard practice.  Follow these cardinal rules, and you should have no problems procedurally.

  1. IF REQUESTING A COPY OF THE RECORD, SUBMIT A CLEAR REQUEST. The request should be clearly stated at the beginning of your correspondence to facilitate the Appeals Council support staff screening and action on your request.
  2. SUBMIT ANY ADDITIONAL EVIDENCE OR COMMENTS WITH THE REQUEST FOR REVIEW. For internal review and association purposes, submitting all evidence at the same time would be very helpful.
  3. IF YOU HAVE ADDITIONAL EVIDENCE, EXPLAIN HOW IT IS MATERIAL TO THE PERIOD AT ISSUE. In regard to new evidence, the Appeals Council applies 20 CFR §§ 404.970 and 416.1470.
  4. CONTENTIONS SHOULD BE SPECIFIC. It is always good practice to concisely focus your arguments for a reviewer.  We recommend using 2,000 words or less if possible.
  5. CONTENTIONS DO NOT NEED TO INCLUDE A RECITATION OF THE JURISDICTIONAL HISTORY OR EVIDENCE GENERALLY, UNLESS RELATED TO A SPECIFIC POINT OF CONTENTION. The record is already before the Appeals Council. They know how it got there. The Appeals Council only wants to know why.
  6. CITE TO THE RECORD. Include pages numbers of exhibits.
  7. DO NOT MAKE AUTOMATIC, MULTIPLE REQUESTS FOR THE STATUS OF A REQUEST FOR REVIEW. You can verify that the Appeals Council has received the request through your local Social Security office, local hearing office or by calling the Congressional and Public Affairs Branch staff (1-703-605-8000) or the general inquiries staff at the toll-free telephone number (1-800-772-1213).
  8. BE SPECIFIC IN REQUESTING AN EXTENSION OF TIME. Requests for extension of time should explain how much additional time is needed and why the request should be granted.

23. What will the Appeals Council do if I am successful?

They will review your appeal and decide what mistakes the ALJ made and how to correct them.  Then they will send the case back to the ALJ to follow the orders of the Appeals Council, and most likely you will have another hearing to correct the earlier ALJ’s mistakes.

23a. Will my second hearing on appeal be before the same ALJ who decided my earlier case the first time?

Yes probably. The Appeals Council gives the original ALJ “two bites at the apple” but not a third fortunately.

24. What if I lose at Appeals Council?

If you lose at Appeals Council, you will have the right to appeal your case to the federal District Court in the jurisdiction in which your case was decided by the ALJ.  This is a complicated matter and will require the services of an attorney who specializes in this kind of work. The Federal Courts are very clogged and the problems with “Pro Se” appeals are legion. Most SSA appellate attorneys do this work without a retainer and get paid by the government if you win at that level and upon remand.

25. What are some grounds for a Federal District Court overturning an Appeal’s Council decision denying me benefits?

There are many bases upon which an ALJ’s ruling may be appealed after your Appeals Council Denial.  Much like those with the Appeals Council, the following is a categorical list and is in no way exhaustive, but it does set forth many of the common mistakes made by administrative law judges.  You will need citations to the trial record and cases from US federal courts that support your positions.  This is a task best left to an attorney.  However, here are some areas where reversal is commonly granted.

Credibility

  • The ALJ failed to adequately assess or evaluate the claimant’s credibility.
  • The ALJ found that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, without saying exactly why and without adequate explanation, the ALJ erred when he/she concluded that “the claimant’s statements concerning the intensity, persistence, and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.”
  • The ALJ failed to make a proper credibility finding.  The ALJ committed reversible error in failing to comply with SSR 96-7p and 20 C.F.R. § 404.1529 in evaluating the claimant’s subjective complaints.
  • The ALJ failed to properly evaluate the claimant’s subjective complaints of pain and dysfunction that can reasonably be accepted as consistent with the objective medical evidence and provide adequate rationale in accordance with disability regulations pertaining to evaluations of symptoms based on the requirements of 20 CFR 404.1529 and 416.929 and Social Security Ruling, 96.4 p and 96-7 p.
  • The ALJ erred in failing to comply with SSR 96-7p in discrediting claimant for claimant’s failure to obtain treatment without considering claimant’s valid and undisputed reason of lack of funds.
  • The ALJ erred in failing to accord adequate weight to the opinion of claimant’s treating physician.
  • The ALJ failed to give proper consideration and weight to the records and opinions of treating sources pursuant to Provision of 20 CFR 404.1527 and 416.927 and Social Security Rulings 96-2p and 96-5p and 96-6p and to adequately explain the weight given to such opinion evidence.
  • The ALJ failed to address other medical opinions of record.
  • The ALJ committed reversible error in failing to provide any reason whatsoever for rejection of the opinion of a treating physician whose opinion directly conflicts with the ALJ’s RFC finding.
  • The ALJ erred in improperly discounting the opinions of the claimant’s treating physician, stating without basis in fact or reason as to how or why the treating physician’s opinions appear to rest at least in part on an assessment of an impairment(s) outside the doctor’s area of expertise and were rendered less than persuasive.
  • The ALJ erred in not finding a treating doctor’s opinions persuasive. The ALJ opined, stating without basis in fact or reason that the opinions of the claimant’s treating physician appeared to be internally inconsistent.
  • The ALJ failed to address treating physician evidence. While the ALJ referenced the opinion of the treating physician, the ALJ failed to comply with 20 C.F.R. § 404.1527 in not providing any reasons whatsoever for his/her obvious rejection of this opinion.
  • The ALJ failed to address opinion(s) of State agency non-examining medical consultants.  The ALJ failed to comply with 20 C.F.R. § 404.1527(f)(2) in ignoring the opinion of the State agency non-examining physician and in failing to provide any reason for his obvious rejection of this evidence.

Residual Functional Capacity

  • The ALJ failed to properly evaluate the evidence and to adequately explain the conflicts in the evidence, and why greater weight was given to one source as opposed to others that would have adequately supported an award.
  • The ALJ has failed to adequately articulate the bases for finding the claimant capable of sedentary or light duty work or for accepting the opinions of evaluating or non evaluating sources over those sources that are considered “treating” sources concerning the claimant’s residual physical or psychological ability to engage in full-time employment.
  • The ALJ failed to give adequate consideration to the claimant’s maximum RFC and provide adequate rationale with specific references to evidence of record to support the assessed limitations (20 CFR 404.1545 and 416.945 and Social Security Ruling 85-16 and 96-8p).
  • Therefore, the ALJ failed to properly assess the claimant’s RFC.  The ALJ committed reversible error in failing to comply with SSR96-8p in assessing the claimant’s RFC.
  • The ALJ’s decision that the Claimant can do sedentary or light duty work is not supported by the evidence of record and ignores uncontroverted evidence of record by state agency medical consultants and/or treating physicians that place the Claimant at a “light” duty exertional capacity which based on the Claimant’s age, education, transferable job skills, or lack thereof, would mandate a finding of disabled pursuant to Pt 404, Sub Pt. P, App.2, 201-202.
  • The ALJ’s denial of benefits was against the greater weight of the evidence and is not adequately supported by the evidence of record.

Pain

  • The ALJ failed to properly evaluate and consider the location, duration, frequency and intensity of pain and other symptoms; precipitating and aggravating factors and the type, dosage, effectiveness, and side effects of medications and the claimant’s other needs to accommodate his/her physical and/or mentally related symptoms, need for medical treatment, and absences related to symptoms and/or medical treatment. The ALJ failed to develop the record.
  • The ALJ erred in failing to develop the record by not contacting the treating physician to request additional evidence and/or clarification regarding claimant’s impairments or residual functional capacity as required by 20 C.F.R. ‘404.1512(e).
  • The ALJ made a mischaracterization or misstatement of the record in a significant respect as follows:
  • The ALJ failed to consider additional medical records submitted to the ALJ prior to the entry of the ALJ’s decision in this case.
  • The ALJ erred in failing to take into account the effect of medications on claimant’s residual functional capacity in determining disability in violating of SSR 96-7.

Mental Impairments

  • The ALJ failed to properly evaluate mental impairment(s).  The ALJ erred in failing to evaluate the claimant’s mental impairment and resulting functional limitations as required by 20 C.F.R. § 404.1520a.
  • The ALJ erred in failing to take into account claimant’s limitations of moderate limitation in ability to maintain attention, concentration, and pace in assessing Claimant’s residual functional capacity through questioning of the vocational expert.

Relevant Work

  • The ALJ failed to properly consider the mental and physical demands of the claimant’s past work. The ALJ failed to obtain vocational expert testimony.  The ALJ committed reversible error in mechanically relying on the Medical-Vocational Guidelines and in failing to obtain Vocational expert testimony.
  • The ALJ failed to properly consider the mental and physical demands of the claimant’s past work.  The ALJ committed reversible error in failing to comply with SSR82-62 in not discussing the specific mental and physical demands of the claimant’s past relevant work prior to summarily determining that she/he can return to that work.

Obesity

  • The ALJ failed to take into consideration the claimant’s obesity and its effects on the Claimants Residual Functional Capacity.

Vocational Experts

  • The ALJ failed to obtain vocational expert testimony.  The ALJ committed reversible error in mechanically relying on the Medical-Vocational Guidelines and in failing to obtain vocational expert testimony.
  • The Vocational Expert testified that the Claimant could return to a job that had no D.O.T. number.  As such, the VE’s testimony was not consistent with the Dictionary of Occupational Titles and was not a competent substantial basis upon which the ALJ opinion should have been based.
  • The hypothetical questions framed by the ALJ did not reflect the specific capacity/limitations established by the record as a whole.

Post Hearing

  • The ALJ failed to comply with the HALLEX procedures in soliciting post-hearing evidence. The ALJ failed to comply with procedures set for in HALLEX I-2 5-42 in failing to transmit the proposed interrogatories to claimant prior to submission to the physician or in failing to proffer the new evidence to the claimant.

Just Plain Wrong

  • The ALJ erred in reaching the ALJ’s Decision without fact or reason that the opinion of the treating physician were obtained through attorney referral and in connection with an effort to generate evidence for the current appeal.  This was not in an attempt to seek treatment for symptoms as also the doctor was presumably paid for the reports a context in which (this evidence) was produced cannot be entirely ignored.

25a. Can the record be supplemented with new evidence while the case is pending before the Federal District Court?

The answer is generally No.

26. What if I cannot afford to pay the filing fees to the Federal District Court?

You can file an Affidavit to Proceed in Forma Pauperis, and if you are found indigent, the Federal Court will waive your filing costs.

27. While my case is pending before the District Court can I file a new claim without losing my right to prosecute my earlier claim?

At this point you can file a new claim without prejudicing your earlier claim.