Because only one-quarter to one-third of disability applications are approved at the initial level, a successful disability claim usually requires more than one appeal. While many disability applicants win their cases after a hearing in front of an administrative law judge (ALJ), some are again denied. If you receive an "unfavorable" decision (a denial) or a "partially favorable" decision from the ALJ, you have 60 days from the date of the denial notice to request an appeal from the Appeals Council. (A partially favorable decision grants you disability benefits, but the retroactive payments don't go back to when you say you first became disabled.)
Before you file an appeal with the Appeals Council, you must carefully examine the ALJ decision and look for errors of fact or law. If you can craft a persuasive argument as to why the ALJ's decision was not supported by substantial evidence, you'll have a decent chance at getting the Appeals Council to remand (send back) your case to the ALJ for a new hearing. (While the Appeals Council may reverse the ALJ outright and award benefits itself, this happens so infrequently that it's barely worth mentioning. In reality, a favorable Appeals Council decision usually involves sending your case back for a new hearing, with special instructions to the ALJ.)
The remand rate at the Appeals Council was as high as 40% just a few years ago, but it has been steadily declining in recent yearsy. As of January 2014, the rate stood at 13%, a number which still indicates that it's possible to win an Appeals Council case if the facts and law are on your side.
Pointing out mistakes made by the ALJ can increase your chances of getting a remand. What kinds of mistakes should you look for when reading your ALJ decision? Here are some common grounds for remand cited by the Appeals Council having to do with improper consideration of your limitations, although there are many others.
The most common reason for the Appeals Council to remand a case is that the ALJ failed to give adequate weight to the opinion of the applicant's treating physician. If the doctor or mental health professional who regularly treats you has completed a Medical Source Statement or Residual Functional Capacity (RFC) form indicating that you have substantial work-related limitations, and the ALJ didn't give a good deal of consideration to these limitations, you may have solid grounds for appeal.
Under Social Security regulations in effect up until 2017, ALJs were required to give your treating doctor's opinion "controlling" weight in many situations, and to identify and explain what weight they gave all medical source (doctor) opinions. In March of 2017, the rules changed so that all medical opinions are evaluated based on factors such as "supportability" (whether they are supported by objective medical evidence) and "consistency" (whether they are consistent with other information on the file). However, ALJs must still explain which doctors they found most persuasive and how they rated the supportability and consistency of the doctors' opinions. If the reasons for discounting your treating doctor's opinions don't stand up to scrutiny, you or your lawyer should mention this in your letter to the Appeals Council.
Every ALJ decision contains an assessment of your RFC, or the most you can do despite your impairments. If you're suffering from depression, anxiety, and knee pain, for example, 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 incredibly important because it helps determine whether there are jobs that exist in the United States that you can perform. The ALJ cannot ignore limitations that are in your medical file and say that you can do more than your doctor's notes or medical evidence indicates you can do. If the ALJ's assessment of your RFC is not supported by the medical evidence, you should make that argument to the Appeals Council.
Pay attention to the testimony of the Vocational Expert (VE) at your hearing, and particularly note the details of the hypothetical questions that the ALJ asks the VE. Here's an example of a hypothetical question a judge might ask: "What jobs, if any, could a person of the same age, education, and with the same work history as the claimant be able to do if he or she could lift no more than 10 pounds on a regular basis, could stand no more than two hours per day, and could not have contact with the general public?”
It often happens that the ALJ will fail to include certain elements or limitations of your RFC in her hypothetical questions to the VE about whether a person could work. For example, the ALJ might neglect to ask about a hypothetical person who can have only occasional interaction with co-workers. The unfortunate result is that the VE will identify certain jobs that a hypothetical person could do, but your RFC is more restrictive than the hypothetical individual's (one good reason to have a lawyer represent you at a disability hearing).
You have an absolute right to request a copy of the hearing audio, and you should consider listening to it in the course of preparing your appeal. If no VE testified at your hearing, this may be grounds for appeal itself, if you could show that you suffered from a severe non-exertional (that is, non-strength-related) impairment.
At Step Two of Social Security's five-step process for deciding disability cases, Social Security determines which of your impairments are severe and non-severe. As defined by Social Security, a severe impairment is one that "significantly limits an individual's physical or mental abilities to perform basic work activities." Non-severe impairments are slight abnormalities causing only a minimal effect on basic work activities. In practice, the bar for what's considered "severe" is set rather low. If the medical evidence in your case shows that one or more of your impairments is limiting basic work activities (like walking, standing, focusing, following directions), the impairment should be considered severe.
Even if one of your impairments was properly labeled non-severe, the ALJ needs to consider its effect on your ability to work. A Social Security regulation requires the ALJ to consider the restrictions and limitations caused by all of your impairments, even those that are non-severe. For example, if the ALJ finds that you suffer from anxiety but that it's non-severe, you still may be prevented from performing certain types of jobs, such as those that require frequent interaction with the general public. When combined with your other physical or mental limitations, this limitations may prevent you from doing your past job or limit the number of other types of jobs that you could do.
There are many other grounds for appealing your decision to the Appeals Council. To find remandable issues in your case, check with an experienced disability attorney in your area, and read on to the next page to find out about errors judges make concerning credibility, summarizing your testimony, not developing the evidence in your case, and more.
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