Top Five Mistakes Social Security Makes on Your Disability Case That Get Your Case Remanded

The Appeals Council will send your disability case back for another hearing if you can show the judge made a reversible mistake.

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

Most disability applicants who are ultimately approved for benefits don't receive a favorable decision until after they've had a hearing before an administrative law judge (ALJ). But applicants who are denied disability at the hearing level can ask the Appeals Council to review their unfavorable decision for any mistakes made by the judge.

If the Appeals Council decides that the ALJ made a mistake in your unfavorable decision that could change the outcome of your case (called a reversible error), your case will be sent back—remanded in Social Security lingo—to the judge with instructions for a new hearing.

The Appeals Council statistically remands only around 14% of cases, but about 50% of those remanded ALJ denials are approved, with applicants receiving a favorable decision after the second hearing. You can make strong arguments about why your case should get a second look—and increase your chances of getting your unfavorable ALJ decision reversed—by addressing common areas where judges make mistakes.

Mistake #1: Insufficient Weight Given to the Treating Doctor's Opinion

The Appeals Council can remand a case if the ALJ didn't give special consideration ("adequate weight") to a medical opinion from your treating doctors. If you're regularly seeing a physician or psychologist who submitted a letter or form stating that you have disabling limitations, and the ALJ didn't address in detail why they didn't agree with your doctor's assessment, you may have solid grounds for an appeal.

Since 2017, judges are no longer required to accept your treating doctor's opinion reflexively, but they must still explain why they didn't find your doctor's opinion persuasive. In your decision, the ALJ should discuss whether the opinion is consistent with and supported by your medical records. If the judge's reasoning doesn't stand up to scrutiny, you or your lawyer should mention this in your letter to the Appeals Council.

Mistake #2: RFC Not Supported by Substantial Evidence

Every hearing decision contains an assessment of your residual functional capacity (RFC), a set of work restrictions reflecting the most you can do despite your conditions. For example, if you have medical impairments including depression, anxiety, and arthritis in your knees, the ALJ may decide you're limited to jobs with only occasional interaction with co-workers, no contact with the general public, and only two hours of standing per day.

Your RFC is very important because it helps the judge determine whether any jobs exist that you can perform. The ALJ can't exclude from your RFC any limitations that are documented by medical evidence and mentioned in your doctor's notes. If the ALJ didn't include restrictions in your RFC that could reduce the number of jobs you could do, you should make that argument to the Appeals Council.

Mistake #3: Vocational Expert Testimony Not Based on Correct RFC

Pay attention to the vocational expert (VE) testimony at your hearing, particularly the details of the hypothetical questions that the ALJ asks the VE. Sometimes the judge will leave out important elements of your RFC in the hypothetical questions they ask the VE about whether a person with certain limitations could work. If the judge asked the VE questions based on an RFC that doesn't match yours, the VE might erroneously identify available jobs that the ALJ can then use to deny you disability benefits.

If you don't have a lawyer, you should request a copy of the hearing audio (or a transcript) from Social Security and review it while preparing your appeal. Notice if the judge asked the VE about a full range of hypotheticals, or if the ALJ left out an important restriction. For example, if you have carpal tunnel syndrome but the judge didn't ask the VE about any restrictions on finger or hand use, the VE might identify jobs (such as small-parts assembler) that you can't actually perform.

Mistake #4: Impairment Erroneously Classified as "Non-Severe"

Part of Social Security's five-step process for deciding disability cases involves determining which of your impairments are severe and non-severe. Severe impairments are medical conditions that significantly limit your physical or mental ability to perform basic work activities. Non-severe impairments are slight abnormalities that only have a minimal impact on your ability to work.

In practice, the bar for what's considered severe is pretty low. Read the sections of the ALJ decision that begin with "The claimant has the following severe/non-severe impairments:" to see if the judge mischaracterized one of your medical conditions. If the evidence in your case shows that one or more of your impairments limit basic work activities (like walking, standing, and focusing), the impairments should be considered severe.

Mistake #5: ALJ Didn't Consider Both Severe and Non-Severe Impairments

Even if the judge correctly classified some of your impairments as non-severe, Social Security regulations require ALJs to consider the combined limitations of both severe and non-severe impairments when determining whether you can work.

A common example involves claimants who have mild mental impairments and well-controlled symptoms, such as slight agoraphobia. In that instance, the ALJ might have found that your agoraphobia isn't severe, but didn't add a restriction in your RFC that you shouldn't do any jobs that involve too much interaction with the public (which could worsen your symptoms). But when combined with other physical or mental limitations, that restriction could prevent you from doing your past jobs or even rule out all work.

A Disability Lawyer Can Help You With Your Appeal

Getting the Appeals Council to remand your unfavorable decision can be a struggle. If you didn't have a representative with you at your hearing, you should consider getting a disability attorney to help with your next steps. Your lawyer can help you by:

  • submitting a brief in response to the council's "25-day letter" request for more information
  • representing you at another hearing if your case is remanded, and
  • updating your eligibility for benefits for a non-medical review after an ALJ hearing.

An experienced disability attorney can also catch any other, less common reversible errors your judge made that can get the Appeals Council to send your case back for another hearing. You can get a free case evaluation from a disability attorney using our lawyer locator tool here.

Updated March 10, 2023

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