Social Security Disability: Four Levels of Appeal

If you've applied for Social Security disability insurance (SSDI) or Supplemental Security Income (SSI) and have been denied benefits, you can and probably should file an appeal. To do so, you'll need to follow the instructions included in your notice of denial from the Social Security Administration (SSA).

If your initial application has been denied, the first step is to file a request for reconsideration. If that fails, you can take your case to the next level of appeal—and keep going all the way to federal court if you wish. This article covers the four levels of appeal available to you after Social Security has denied your application for disability benefits.

1. Request for Reconsideration
2. Administrative Law Judge (ALJ) Hearing
3. Appeals Council
4. Federal Court Review

1. Request for Reconsideration

If the SSA denies your initial application for disability benefits (or terminates your benefits after a continuing disability review), your first appeal is a request that the initial denial (or the termination) be reviewed again. This appeal is called a "reconsideration."

Reconsideration of Your Original Disability Claim

A reconsideration is a complete review of your claim. It takes place at the Disability Determination Services (DDS) level but is performed by a medical consultant and claims examiner who were not a part of the initial decision.

DDS will look at all the evidence considered in your initial determination plus any new evidence that DDS obtains or you submit (like records of more recent medical exams or treatment). The reconsideration process usually takes several months, and DDS grants benefits in about 10-15% of all reconsideration claims.

Your initial denial notice will include information about your right to request a reconsideration and a paragraph about your medical condition. You have 60 days after you receive your denial notice to file a written request for reconsideration.

There are two ways you can request reconsideration after your initial application for disability has been denied:

• Fill out the online request for reconsideration, or
• Print and complete a Request for Reconsideration (form SSA-561-U2), then mail it to your local Social Security office.

If the DDS denies your claim after reconsideration, you'll receive another denial notice and an explanation very much like the one you received when your initial claim was denied. The next level of appeal—if you want to pursue it—is a request for a hearing before an administrative law judge (see Step 2 below).

Reconsideration of Your Continuing Disability Claim

Once you begin receiving disability benefits, your case will be re-examined periodically through a continuing disability review (CDR) to see if you're still disabled. The SSA could end your benefits for a couple of reasons, including:

• a determination that your condition has improved enough that you can now work, or
• your failure to cooperate in the CDR process.

If Social Security stopped your benefits after a CDR, and you want to appeal the termination, you must request a reconsideration of the CDR. And you may get sent to a hearing before a disability hearing officer (DHO). You can start the process by filing Form SSA-789 (Request for Reconsideration Disability Cessation).

Before your claim goes to the hearing officer, it will get a second review by a different DDS medical consultant and examiner, who could reverse the decision to end your benefits.

Although the DHOs aren't doctors or psychologists, the hearing officers are allowed to form their own medical opinions about the severity of your physical or mental impairments. As you prepare for the DHO hearing, keep in mind that the SSA must show reliable evidence that you've had significant work-related medical improvement to stop your benefits. This is a matter of medical judgment.

But Social Security must consider your treating doctor's opinions on your limitations and whether your condition has improved. If your case is borderline, you should win your appeal, and your disability benefits should continue. If your request is denied, your next step in the appeal process is to request a hearing before an administrative law judge (see Step 2, just below).

2. Administrative Law Judge (ALJ) Hearing

If the DDS denies your request for reconsideration (of an initial claim or a continuing disability review termination) and you want to appeal further, you must request a hearing before an administrative law judge (ALJ) within 60 days of receiving your reconsideration denial letter.

ALJs are attorneys who work for the SSA's Office of Hearings Operations (OHO), formerly known as the Office of Disability Adjudication and Review (ODAR). Most of their work involves upholding or overturning decisions to deny or terminate disability benefits.

Overall, ALJs grant almost half of the claims that reach them—that means statistically, you have about a 50% chance of winning your disability appeal at an ALJ hearing. If you aren't already working with a disability lawyer, you should consider hiring one to help you build and present your case at the ALJ hearing. Your chance of winning your appeal is better if you have an attorney.

3. Appeals Council

If you lose at your disability hearing, you can request that the Appeals Council review your case. You can submit an online request for an Appeals Council review or mail Form HA-520 to Social Security.

The Appeals Council randomly selects cases for review and has the discretion to grant, deny, or dismiss your request for review. The Appeals Council can dismiss your case without review unless it finds one of the following:

• an abuse of discretion by the ALJ (for example, your hearing was cut short)
• an error of law by the ALJ (for example, the ALJ wouldn't allow you to cross-examine a witness)
• the ALJ's decision isn't supported by substantial evidence, or
• your case raises a broad policy or procedural issue (such as the ALJ not notifying you that an expert witness would be present at the hearing).

The Appeals Council can also dismiss your claim without reviewing it if you file your request late or ask for a dismissal.

The Appeals Council usually looks for flaws in the ALJ's decision before granting a review. If the Appeals Council does review your case, your chance of winning is only about 1%. But, in about 10% of cases, the Appeals Council sends the case back to the ALJ to take another look at it (called a "remand"). Your best chance of winning an appeal is always at the ALJ hearing level.

You must file a request with the Appeals Council to exhaust all of Social Security's administrative appeal avenues before taking your Social Security disability claim to the final appeal level: federal court.

4. Federal Court Review

The next step in the appeal process is filing a lawsuit in U.S. District Court. If you don't yet have an attorney representative, you'll almost certainly need one now.

Federal judges hear disability cases without juries. The judge is supposed to review the case only for legal errors, but in reality, many judges rule on factual questions, too. District court judges reverse ALJs or the Appeal Council in only a small number of cases, but they remand (send back to Social Security) about half of the disability cases they see.

When remanding cases, federal judges often cite Social Security's failure to:

• consider a treating doctor's opinion sufficiently
• consider pain and other symptoms, or
• ask for assessments of abilities from treating doctors.

Although you have a fair chance of winning an appeal after going to federal court, it's not an attractive option. Suing the SSA is expensive and time-consuming. Even if you win, it might take years to reach that level of the appeals process.

Consequently, not all disability attorneys are willing to file a disability case in federal court, and fewer than 1% of disability claimants actually take their cases to court.

Learn more about how to decide if you should appeal your claim and how to appeal a denied SSDI claim.

_{Updated July 22, 2022}