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After the Hearing

When you attend a hearing, the administrative law judge (ALJ) will apply the five steps of determining disability and may issue a decision either during the hearing or some time afterwards. Sometimes the judge will ask you to provide additional evidence by a certain deadline, or may request a consultative examination (even if you have already had one). You should work closely with your lawyer to obtain any additional evidence requested. For any consultative examination, please try to be on time, and once you get there, treat it as an appointment with your regular doctor (neither exaggerating nor minimizing your impairments). Finally, the judge may reconvene the hearing for a later date; consult with your lawyer about any preparation that may be required, or if you need assistance getting to the hearing.

If you win your case, you will get a “fully favorable” decision in the mail some time after the hearing. You will not receive money right away, because the Social Security Administration must still calculate your benefits. After the favorable decision, you may still be required to attend a “post-hearing interview” at the local Social Security field office. The purpose of this interview is, in part, to gather the information from you that SSA needs to calculate your benefits correctly. Failure to attend the “post-hearing interview” can cause the favorable decision to turn into a denial, essentially “grabbing defeat from the jaws of victory.” If such an interview was scheduled and you had a good reason for not going, however, don’t worry; your attorney or you can call Social Security (within a reasonable amount of time) to have it re-scheduled. If the benefits calculated by the Social Security Administration are wrong, your attorney can send a letter to the administrative law judge asking her or him to amend the favorable decision to specify the amount of benefits.

You might also get a partially favorable decision, or an unfavorable decision. The most common partially-favorable decision is one that accepts that you are disabled but specifies a different “onset date” than the one you gave when you first applied; for example, you may have said you were disabled since 2007 and the judge may rule that you were able to work until 2008, in which case you would be owed less back benefits. Whether to appeal in such a case is a highly fact-specific decision which depends, among other things, on the nature of your disability, whether your disability got worse, and your work history. Please call us at 505-265-1000 for more information.

If you get an unfavorable decision, your next step is to request Appeals Council review. You must request this review within 60 days of the day on which you receive the unfavorable decision; to be safe, you should do so within 60 days of the date that is printed on the decision letter. In addition, your lawyer may advise you to file a new claim as well – particularly if your condition worsens. This is because the Appeals Council generally does not consider any worsening of your condition that may have taken place after the date of the judge’s decision.

In some parts of the country, you might not have the option to appeal to the Appeals Council; rather, decisions are sent to a decision review board without your intervention. You will not be informed if this happens, nor of the outcome, unless the decision review board – on its own motion – reverses, modifies or remands the decision. If you live in those parts of the country and you disagree with the administrative law judge’s decision, the next step is to go to Federal court – without waiting for the decision review board.

The regulations governing which parts of the country have Appeals Council review and which do not may be subject to change; therefore, it is important to have the advice of a competent attorney. Generally, this will be whichever attorney represented you at the hearing; Bill Gordon & Associates has attorneys who are highly experienced in working with Appeals Council cases, but we have found that representation before the Appeals Council is best done by an attorney who was present at the actual hearing.

If you try to appeal to the Appeals Council and the Appeals Council has no jurisdiction, you could miss the deadline to file a complaint in Federal court, and if you try to appeal to Federal court where you have the opportunity to appeal to the Appeals Council, the Federal court will dismiss your case for lack of exhaustion of administrative remedies and you will likely miss the deadline to file an appeal with the Appeals Council.

The Appeals Council

The Appeals Council comprises a number of Administrative Appeals Judges and Appeals Officers in Falls Church, Virginia. They are supported by staff attorneys who review cases that have been decided by administrative law judges and make recommended decisions. The Council reviews cases that are appealed to it, but also can review a case on its own based on staff recommendation. For this reason, sometimes favorable decisions end up before the Appeals Council.

The standard of review at this level is somewhat deferential to the Administrative Law Judges. The Appeals Council need not re-weigh the credibility of testimony received during a hearing; rather, it will review the case record, including medical records and a tape recording or a transcript of the hearing. The Appeals Council will deny your request for review if the administrative law judge’s decision is supported by substantial evidence and does not contain errors of law and if the judge did not abuse his or her discretion.

“Substantial evidence” is far less than the proof beyond a reasonable doubt required in a criminal court; rather, it is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[1] Indeed, “substantial evidence” is even less than the “preponderance of evidence” required in an ordinary civil lawsuit.[2][3] That is, as long as the administrative law judge’s decision is supported by “more than a mere scintilla”[4] of evidence and is properly written, it may withstand Appeals Council review.

If the administrative law judge’s decision was not supported by substantial evidence, or if the decision contained an error of law or the judge abused his or her discretion, the Appeals Council may reverse the ALJ’s decision, resulting in an award of benefits. The Appeals Council may also modify the ALJ’s decision or remand (return) the case to the ALJ. It is far more likely for the Appeals Council to remand a case than to reverse it entirely. In some cases, the Appeals Council may deem that the ALJ’s error did not affect the ALJ’s final decision, in which case the ALJ’s decision may be affirmed.

If your claim is denied by the Appeals Council – that is, either the Appeals Council declines to grant your request for review, or the Appeals Council reviews your case and issues a new, unfavorable decision – you again have sixty days to appeal, this time to Federal court. Interestingly, in the event that you miss this deadline, you would ordinarily apply to the Appeals Council itself (rather than to the court) for an extension. Needless to say, if you want to keep appealing, it is better to adhere to the deadline than to miss it.

In summary, then, the Appeals Council is the highest level of appeal within the Social Security Administration (except in cases where the Appeals Council does not have jurisdiction). If the decision of the Appeals Council is not favorable to you, then you can file a new claim, appeal to Federal court, or give up. Your lawyer can advise you on which of these is most appropriate in your case.

Next: Federal court

[1]Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consolidated Edison Corp. v. NLRB, 305 U.S. 197, 229 (1938)); Craig v. Chater, 76 F.3d 585 (4th Cir. 1996); Soliz v. Chater, 82 F.3d 373 (10th Cir. 1996); Butler v. Barnhart, 353 F.3d 992 (D.C. Cir. 1994).

[2]See e.g. Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966); see also e.g. FPL Energy Maine Hydro LLC v. Fed. Energy Reg. Commn., 287 F.3d 1151, 1160 (D.C. Cir. 2002).

[3]Interestingly, the “preponderance of evidence” standard is used to determine whether a claimant is disabled or not disabled. The “substantial evidence” standard is used to determine whether to overrule an administrative law judge’s decision or not: the ALJ’s decision is supposed to be based on a preponderance of evidence, but as long as it is supported by substantial evidence the Appeals Council need not, and the Federal courts cannot, overrule the ALJ. See “Clarification of Evidentiary Standard for Determinations and Decisions,” 73 Fed. Reg. 76940, 76941 (Dec. 18, 2008).

[4]See Richardson, 402 U.S. at 401.