The Appeals Process
1. If I get turned down, how do I appeal my initial Unfavorable SSDI or Supplemental Security Income (SSI) or Special Veterans Benefit (SVB) decision?
There are three different ways to appeal: Case Review, Informal Conference, and Formal Conference. You can pick the appeal that fits your case. You can have a lawyer, friend, or someone else help you with your appeal.
- Case Review: This is the most cursory Administrative form of review for SSDI, SSI and VA/SUB decision. You can give the SSA and VA more facts to add to your file. Then the SSA will decide your case again. You don’t meet with the person who decides your case. You can pick this kind of appeal in all cases.
- Informal Conference: This form of appeal is “less appealing” to most practitioners. Here, you’ll meet with the person who will decide your case. You can tell that person why you think you’re right. You can give the SSA more facts to help prove you’re right. You can bring other people to help explain your case. You can pick this kind of appeal in all SSDI/SSI cases except two. You can’t have it if the SSA turned down your SSI application for medical reasons or because you’re not blind. Also you can’t have it if the SSA is giving you SSI but you disagree with the date they said you became blind or disabled. In SVB cases, you can pick this kind of appeal only if the SSA is stopping or lowering your SVB payment.
- Formal Conference: Most attorneys and representatives prefer this sort of meeting as it affords the claimant the greater amount of due process rights. This is a meeting like an informal conference. Plus, the SSA can make people come to help prove you’re right. The SSA can do this even if they don’t want to help you. You can question these people at your meeting. You can pick this kind of appeal only if the SSA is stopping or lowering your SSI or SVB payment. You can’t get it in any other case.
Now that you know the three kinds of appeals. You can pick the one that fits your case. Then fill out your “Request for Reconsideration” form. The SSA will help you fill it out if you ask.
There are groups that can help you with your appeal. The SSA can give you the names of these groups or attorneys to help with your appeal. We represent Veterans at the Law offices of Mike Murburg, P.A. and at Disabilityattorney.net. One of our representatives, Carol Wilson, tried her first VA case over twenty years ago.
2. What administrative actions of the SSA are initial determinations from which I can file a “Request for Reconsideration” or an appeal?
The following list covers the vast majority of administrative actions that are initial determinations. However, they are not all inclusive.
3a. If I have applied for or have received SSDI benefits, what kind of determinations can I appeal?
For Title II Claims (Social Security Disability Insurance) SSDI, the following are
considered initial determinations from which one can appeal:
- Entitlement or continuing entitlement to benefits;
- Reentitlement to benefits;
- The amount of benefits;
- A recomputation of benefit;
- A reduction in disability benefits because benefits under a worker’s compensation law were also received;
- A deduction from benefits on account of work;
- A deduction from disability benefits because of claimant’s refusal to accept rehabilitation services;
- Termination of benefits;
- Penalty deductions imposed because of failure to report certain events;
- Any overpayment or underpayment of benefits;
- Whether an overpayment of benefits must be repaid;
- How an underpayment of benefits due a deceased person will be paid;
- The establishment or termination of a period of disability;
- A revision of an earnings record;
- Whether the payment of benefits will be made, on the claimant’s behalf, to a representative payee, unless the claimant is under age 18 or legally incompetent;
- Who will act as the payee if the SSA determines that representative payment will be made;
- An offset of benefits because the claimant previously received Supplemental Security Income payments for the same period;
- Whether completion of or continuation for a specified period of time in an appropriate vocational rehabilitation program will significantly increase the likelihood that the claimant will not have to return to the disability benefit rolls and thus, whether the claimant’s benefits may be continued even though the claimant is not disabled;
- Nonpayment of benefits because of a claimant’s confinement for more than 30 continuous days in a jail, prison, or other correctional institution for conviction of a criminal offense;
- Nonpayment of benefits because of claimant’s confinement for more than 30 continuous days in a mental health institution or other medical facility because a court found the individual was not guilty for reason of insanity; a court found that he/she was incompetent to stand trial or was unable to stand trial for some other similar mental defect; or, a court found that he/she was sexually dangerous.
3b. If I have applied for or have received SSI benefits, what kind of determinations can I appeal?
For Title XVI Claims (Supplemental Security Income) SSI the following are considered initial determinations from which one may appeal:
- Eligibility for, or the amount of, Supplemental Security Income benefits;
- Suspension, reduction, or termination of Supplemental Security Income benefits;
- Whether an overpayment of benefits must be repaid;
- Whether payments will be made on claimant’s behalf to a representative payee, unless the claimant is under age 18, legally incompetent, or determined to be a drug addict or alcoholic;
- Who will act as payee if the SSA determines that representative payment will be made;
- Imposing penalties for failing to report important information;
- Drug addiction or alcoholism;
- Whether claimant is eligible for special SSI cash benefits;
- Whether claimant is eligible for special SSI eligibility status;
- Claimant’s disability; and
- Whether completion of or continuation for a specified period of time in an appropriate vocational rehabilitation program will significantly increase the likelihood that claimant will not have to return to the disability benefit rolls and thus, whether claimant’s benefits may be continue even though he or she is not disabled.
Note: Every re-determination which gives an individual the right of further review constitutes an initial determination.
3c. If I have applied for or have received SVB benefits, what kind of determinations can I appeal?
Title VIII (See VB 02501.035)
- Meeting or failing to meet the qualifying and/or entitlement factors for special veterans benefits (SVB);
- Reduction, suspension, or termination of SVB payments;
- Applicability of a disqualifying event prior to SVB entitlement;
- Administrative actions in SVB cases similar to those listed under Title II—items 3, 4, 10, 11, & 16.
4d. What sorts of Medicaid determinations an subject to appeal?
The following Title XVIII (SSI) determinations are considered final determinations from which one may timely appeal.
- Entitlement to hospital insurance benefits and to enrollment for supplementary medical insurance benefits;
- Disallowance (including denial of application for HIB and denial of application for enrollment for SMIB);
- Termination of benefits (including termination of entitlement to HI and SMI).
- Initial determinations regarding Medicare Part B income-related premium subsidy reductions.
5. Where can I find these Appeal Forms?
You may request a “Request for Reconsideration”, SSA-561-U2 form on our website below or on line at http://www.socialsecurity.gov/online/ssa-561.pdf. You may find and complete your “Disability Report-Appeal” on line at http://www.socialsecurity.gov/online/ssa-561.pdf. You can call the SSA at 1-800-772-1213 or go on line to file your “Request for Hearing by Administrative Law Judge”, Form HA-601-U5, at the Social Security Website at http://www.socialsedcurity.gov/disability/hearing. You can also find these forms in the Appendix or on our website www.disabilityattorney.net and click the appropriate links.
The same is true with the following appeals forms:
- “Request for Reconsideration”, Form SSA-561-U2
- “Disability Report-Appeal”, Form SSA3441-BK
- “Request for Hearing by Administrative Law Judge”, Form HA-501-U5
6. What if SSA discourages me from applying or appealing?
Of the people who apply for SSD, over 50% are turned down (from SSA stats). Fewer than 50% of those are turned down appeal. Of those who appeal, over generally 50% are accepted as disabled. You should not be discouraged by a SSA representative from filing. You should not necessarily believe them when they tell you that you are not disabled.
7. What do I do if I get turned down?
If you really cannot work in a full time or regular scheduled part time capacity due to injury or illness that has prevented you from working or will keep you from working for 12 months or more, apply for Social Security Disability (SSD) and Supplemental Security Income benefits. If you are tuned down you will have 60 days to file your appeal. Keep appealing denials at least through the hearing before an Administrative Law Judge. If you fail to file your appeal, you may lose valuable rights to you entitlement to SSD/SSDI benefits. Remember, the law does not help those who sit on their rights. According to the Social Security Administration, the biggest mistake people make when trying to get disability benefits is failing to appeal or waiting too long (more than 60 days) to file their “Request for Reconsideration” and/or “Request for Hearing”.
8. What form do I have to file in order to get my hearing?
The form one must file to get a hearing is a Form HA-501-U5 form called a “Request for Hearing by an Administrative Law Judge”. The Form is set forth below in the Appendix hereto.
Is there another form that must accompany my “Request for Reconsideration” and “Request for Hearing”?
Yes. You must also file a Form SSA-3441-BK “Disability Report-Appeal” also set forth in the Appendix hereto.
9. How should I send these forms?
You should send them together within the 60 days you have to send the forms and get them to the SSA. Sending the forms certified mail, return receipt requested, is the best way to do this. Also keep a copy of the documents you send for your own records. If one hand delivers the forms to the local SSA office, he or she should ask the SSA for a date stamped copy to confirm that the forms and your appeal has been timely filed. One can also file the appeal via the internet. We do this for our clients at the Law Offices of Mike Murburg, P.A.
10. How can I locate my local Social Security Office?
You can go to the following website and type in your address and you can find the nearest Social Security Disability Office by going to: http://www.socialsecurity.gov and clicking on the informational tab named “find your local office.” Just enter your zip code and the office closest to you will appear.
11. What if I let the 60 days run on my appeal, can I file late?
Yes. But it is not advisable to do so. One can file late only under a narrow set of exceptions. According to the Social Security Administration you can file your appeal (your Request for Reconsideration and/or Request for Hearing by an Administrative Law Judge) after 60 days if you have good cause for late filing.
In determining whether the claimant had good cause for failure to file a timely appeal request SSA considers:
- Whether circumstances impeded the claimant’s efforts to pursue his/her claim;
- Whether SSA/CMS actions were confusing or misleading;
- Whether the claimant understood the requirements of the Social Security Act (the Act), resulting from amendments to the Act, other legislation, or court decisions; and
- Whether the claimant’s physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) prevented him/her from filing a timely request or from understanding or knowing about the need to file a timely request for appeal.
NOTE: Good cause for late filing may apply to any person standing in the place of the claimant, like the claimant’s representative or attorney.
Circumstances where good cause may exist include, but are not limited to, the following situations:
- The claimant was seriously ill and was prevented from contacting SSA in person, in writing, or through a friend, relative, or other person;
- There was a death or serious illness in the claimant’s immediate family;
- Pertinent records were destroyed or damaged by fire or other accidental cause;
- The claimant was actively seeking evidence to support his/her claim, and his/her search, though diligent, was not completed before the time period expired;
- The claimant requested additional information concerning SSA’s determination within the time limit. (After receiving the information, the individual has 60 days to request a reconsideration or hearing. The individual has 30 days after receipt of such information to request AC review or file a civil action);
- The claimant was furnished confusing, incorrect, or incomplete information or was otherwise misled by a representative of SSA or CMS about his/her right to request continued benefits, reconsideration, a hearing before an Administrative Law Judge, AC review, or to begin a civil action;
- The claimant did not understand the requirement to file timely or was not able (mentally or physically) to file timely;
- A notice of the determination or decision was never received (e.g., SSA used incorrect address or claimant moved);
- The claimant transmitted the appeal request to another government agency in good faith within the time limit and the request did not reach SSA until after the time period had expired;
- The claimant thought his/her representative had filed the appeal (good cause applies to the claimant despite whether the claimant is still represented or represented by a different person);
- Unusual or unavoidable circumstances exist, which demonstrate that the claimant could not reasonably be expected to have been aware of the need to file timely, or such circumstances prevented him/her from filing timely.
12. Once my Request for Hearing is received by the SSA what happens next?
Your Request for Hearing will be received by the Social Security Office and will be forwarded along with your disability file to “ODAR” (the Office of Disability Adjudication and Review) formerly known as the Office of Hearings and Appeals.
At ODAR your claim will wait its turn being set. Often it will wait the full 365 days before the law requires the SSA to put your claim on a trial calendar.
13. How Can One Expedite a Hearing on a Social Security Disability/SSA Claim?
There are only a few ways that your case can be expedited. The first means of expediting your case is by telling the SSA that you have a “Dire Need” case. A “Dire Need” situation exists when a person has insufficient income or resources to meet an immediate threat to health or safety, such as lack of food, clothing, shelter or medical care. The claim must allege specific immediate circumstances. Moreover, expeditious hearing requests are routinely denied unless a claimant meets at least one of four other circumstances.
The first circumstance is whether the claimant is 55 years of age or older. This is because at 55, claimants fall into a less restrictive disability category. As a consequence, the claim is more easily decided by a Social Security Administration judge. We automatically file expeditious requests once all of our clients reach the age of 55. Upon review you may be requested to amend your alleged date of onset of disability to compare with your age.
The second category that qualifies for expeditious handling is when the claimant is at a critical risk for death if emergency life saving surgery is not performed immediately. This must be put in writing by the claimant’s physician and given to us so that we can request an expeditious hearing on the claim. Terminal illness or (TERI) cases or “Compassionate Allowance” cases must clearly set forth the emergency medical situation involved.
The third area ripe for expeditious handling is when a claimant is in receipt of a Notice of Eviction, foreclosure or acceleration of mortgage payments. This avenue of expedition requires an official legally driven notice, not just some handwritten piece of paper from your relative/landlord that you cannot stay there anymore.
The fourth area that may trigger expeditious handling of a claim is a Military Service Casualty Case (active military service, occurring after October 1, 2001 in US or abroad).
The fifth trigger is when there is an indication that the claimant is suicidal or homicidal.
Unfortunately, with the extreme backlog of cases pending with the Social Security Administration, these bases are just of historical note and are now seldom if ever granted. We do file them with the Social Security Administration and make the request if and when our clients send such notice to us.
Unfortunately, there are no further bases under which to ask for an expedited hearing. We do not recommend that our clients contact their U.S. Senator or Congressman with their request unless they are a disabled American Veteran who has already received a VA in-the-line-of-duty disability award.
Remember that a request for an expedited hearing may only move your hearing up a few months. It is only in extremely rare cases that the request to expedite is granted and the hearing takes place within 90 days.
14. Is there a list of conditions for TERI Cases that can trigger my case as one of Dire Need?
Yes. These cases are called “Compassionate Allowance” cases. The following are Compassionate Allowances that will expedite your hearing or case.
- Acute Leukemia
- Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
- Alexander Disease (ALX) – Neonatal and Infantile
- Alstrom Syndrome.
- Amegakaryocytic Thrombocytopenia
- Amyotrophic Lateral Sclerosis (ALS)
- Anaplastic Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
- Aortic Atresia
- Astrocytoma – Grade III and IV
- Ataxia Telangiectasia
- Batten Disease
- Bilateral Retinoblastoma
- Bladder Cancer – with distant metastases or inoperable or unresectable
- Bone Cancer – with distant metastases or inoperable or unresectable
- Breast Cancer – with distant metastases or inoperable or unresectable
- Canavan Disease (CD)
- Cerebro Oculo Facio Skeletal (COFS) Syndrome
- Chronic Myelogenous Leukemia (CML) – Blast Phase
- Creutzfeldt-Jakob Disease (CJD) – Adult
- Cri du Chat Syndrome
- Degos Disease, Systemic
- Early-Onset Alzheimer’s Disease
- Edwards Syndrome (Trisomy 18)
- Eisenmenger Syndrome
- Endomyocardial Fibrosis
- Ependymoblastoma (Child Brain Tumor)
- Esophageal Cancer
- Farber’s Disease (FD) – Infantile
- Fibrodysplasia Ossificans Progressive
- Friedreichs Ataxia (FRDA)
- Frontotemporal Dementia (FTD), Picks Disease –Type A – Adult
- Gallbladder Cancer
- Gaucher Disease (GD) – Type 2
- Glioblastoma Multiforme (Adult Brain Tumor)
- Glutaric Acidemia Type II (Neonatal)
- Head and Neck Cancers – with distant metastasis or inoperable or uresectable
- Heart Transplant Graft Failure
- Heart Transplant Wait List, 1A/1B
- Hemophlangic Lymphohistiocytosis (HLH), Familial Type
- Hypolastic Left Heart Syndrome
- Idiopathic Pulmonary Fibrosis
- Infantile Neuroaxonal Dystrophy (INAD)
- Infantile Neuronal Ceroid Lipofuscinoses
- Inflammatory Breast Cancer (IBC)
- Junctional Epidermolysis Bullose, Lethal Type
- Kidney Cancer – inoperable or unresectable
- Krabbe Disease (KD) – Infantile
- Large Intestine Cancer – with distant metastasis or inoperable, unresectable or recurrent
- Late Infantile Neuronal Ceroid Lipofuscinosis
- Left Ventricular Assist Device (LAD) Recipient
- Leigh’s Disease
- Lesch-Nyhan Syndrome (LNS)
- Liver Cancer
- Mantle Cell Lymphoma (MCL)
- Maple Syrup Urine Disease
- Merosin deficient Congenital Muscular Dystrophy
- Metachromatic Leukodystrophy (MLD) – Late Infantile
- Mitral Valve Artesias
- Mixed Dimentias
- MPS I, formerly known as Hurler Syndrome
- MPS II, formerly known as Hunter Syndrome
- MPS III, formerly known as sanfilippo Syndrome
- Mucosal Malignant Melanoma
- Neuronal Adrenouleukodystrophy
- Niemann-Pick Disease (NPD) – Type A
- Niemann-Pick Disease (NPD) – Type C
- Non-Small Cell Lung Cancer – with metastases to or beyond the hilar nodes or inoperable, unresectable or recurrent
- Ornithine Transcarbamylase (OTC) Deficiency
- Osteogenesis Imperfecta (OI) – Type II
- Ovarian Cancer – with distant metastases or inoperable or unresectable
- Pancreatic Cancer
- Patau Syndrome (Trisomy 13)
- Peritoneal Mesothelioma
- Pleural Mesothelioma
- Pompe Disease – Infantile
- Primary Cardiac Amyloidosis
- Primary Progressive Aphasia
- Primary Multifocal Leukoencephalopathy
- Pulmonary Artesia
- Rett (RTT) Syndrome
- Salivary Tumors
- Sandhoff Disease
- Single ventricle
- Small Cell Cancer (of the Large Intestine, Ovary, Prostate, or Uterus)
- Small Cell Lung Cancer
- Small Intestine Cancer – with distant metastases or inoperable, unresectable or recurrent
- Spinal Muscular Atrophy (SMA) – Types 0 And 1
- Spinocerebellar Ataxia
- Stomach Cancer – with distant metastases or inoperable, unresectable or recurrent
- Subacute Sclerosis Panencephalitis
- Tay Sachs Disease-Infantile Type
- Thanatorphoric Dysplasia, Type 1
- Thyroid Cancer
- Tricuspid Atresia
- Ulrich Congenital Muscular Dystrophy
- Ureter Cancer – with distant metastases or inoperable, unresectable or recurrent
- Walker Warburg Syndrome
- Wolman Disease
- Zellweiger Syndrome
You may also find these conditions listed at http://www.ssa.gov/compassionateallowances/conditions.htm.