If you disagree with the reconsidered decision, the next step is to request a hearing before an Administrative Law Judge.  You must file this request within 60 days of the date that you received the initial decision. The Social Security Administration generally presumes that you received their decision 5 days after the date printed on it, but there are exceptions to this rule. To be safe, file the request less than 60 days of the date printed on the decision letter. You can do so either by:

• downloading the form, filling it out, signing it, and mailing it, or
• filing your appeal directly on the Social Security Administration website. If you have trouble filing online, then call the Social Security Administration at 1-800-772-1213, Monday through Friday between 7:00 a.m. and 7:00 p.m.

You can file the appeal paperwork yourself. Remember that you also have to file supporting documentation: you must complete a new Disability Report and a new medical records release form.

Do not wait until the last minute to file an appeal. The web site appeal process is not available 24 hours, and mail is sometimes slow. Although the administrative law judge who is assigned to your case can grant an extension if your appeal is accompanied by a “good cause” statement, the judges vary greatly in their willingness to find that you had good cause for missing the deadline, and most extension requests are denied but only after a long wait.

Item instructions for the hearing request form

When you fill out the appeal paperwork, on the hearing request form:

2. If you are applying for Social Security Disability Insurance Benefits (DIB) based on somebody else’s work record – for example, if you are applying for family benefits, you should indicate, under item 2 of the appeal form, the name of the person on whose work record your application is based. If you are applying based on your own work record, then leave this blank.
6. If you have new medical records in your possession or will be able to obtain it within 10 days after filing your appeal paperwork, then select “yes” under item 6, and indicate the name and address of the doctor who gave you these records. Otherwise, you can leave item 6 blank (neither checking “yes” nor “no.”)
7. Under item 7, we strongly recommend that you check the box next to where it says “I wish to appear at a hearing.” You should select the other option (”I do not wish to appear at a hearing and I request that a decision be made based on the evidence in my case”) only if specifically advised to do so by an attorney. If you are so disabled that you cannot possibly travel to a hearing, you can still select “I wish to appear at a hearing” and submit the appeal paperwork, then please call us at 1-800-819-8123.

What happens at this stage?

The Social Security Administration (SSA) field office sends your file to the Office of Disability Adjudication and Review (ODAR), a separate department within the Social Security Administration. Sometimes ODAR may have a local office in the same building as the SSA field office, but ODAR is administered independently and is not under the control of the field office manager. ODAR is well known for two things:

• It is independent. The administrative law judges within ODAR are required to be neutral. You are very likely to get a fair hearing at this stage; indeed, more than half of all meritorious claims decided by administrative law judges are decided favorably. The administrative law judge will decide your case de novo, meaning that he or she owes no deference to the disability determination service.
• It is slow. So many cases are denied at the initial and reconsideration levels, and the hearing level is so thorough, that it may take over a year for a hearing to be scheduled in your case. The delay varies geographically; in some states the delay is so short that disabled people and their lawyers do not have sufficient time to prepare their case, and in other states the delay may be longer than two or even three years. To reduce this variation, some cases are transferred between different local ODAR hearing offices.

There are two ways to avoid the backlog, but both methods work only if your disability is severe:

• At the initial and reconsideration levels, make sure the Disability Determination Service has access to the medical information needed to decide your case. If your disability is so severe that your doctor determines you cannot work, then be sure your doctor knows about the listings, and have your doctor document his or her findings thoroughly in your medical records. Your doctor can be a valuable ally at this stage. Also cooperate fully with any requests from the Disability Determination Service (DDS) for you to attend a “consultative examination”; such requests mean the DDS needs more information to decide your case, and failure to appear can result in loss of your case.
• Write to your representative in Congress, or to one of your Senators. Your letter should be in writing and addressed to the Representative’s or Senator’s local (district) office; contacting them through the Internet is recommended only for expressing opinions, not for requesting help. If you have a particularly compelling situation then writing to them may cause the Social Security Administration to consider your case faster. It will ordinarily not affect the eventual outcome of your case.

After your case reaches the Office of Disability Adjudication and Review, you should receive a notice in the mail. After a period of time that varies between a few days and a few years – during which you should retain an attorney if you have not already done so – your case will be assigned to an administrative law judge, and you will receive a second notice with a time and place for you to appear before the judge. You should take great effort to be on time for the hearing, because judges’ willingness to excuse tardiness varies greatly. If the judge dismisses your case because you failed to appear, this can result in complete loss of benefits. If you are too sick to appear before the judge, notify your attorney immediately. In some cases the attorney may be able to represent you in your absence, but if your attorney does not know what is going on then you are likely to lose your case. (If you are running late, then be sure to give your attorney an accurate estimate of when you will be there, because if your attorney says you will be there at a certain time and you do not show up, the judge may find that you are not credible, or may simply dismiss your case.)

It is at the hearing stage that an attorney can do the most good. First, the hearing stage is where the probability of success is most favorable to claimants. Second, the hearing stage is also where the probability of success is closest to 50/50. Third, except in cases where you already receive benefits and the government wants to stop paying you, the hearing is the only stage where you will personally appear before the adjudicator in your case. If your case pertains to your medical eligibility to start receiving benefits, all levels of appeal both before and after the hearing stage are decided based on a written record rather than on a face-to-face “trial.” You need an attorney to persuade the administrative law judge that you are not one of the 30% of claimants whose cases are not meritorious.

After the hearing stage, an attorney becomes even more important, but your chances of winning fall dramatically unless you received an unfair hearing. The Federal courts give great deference to decisions of adjudicators within the executive branch of the U.S. government if they are independent, as are Administrative Law Judges.

If you wait until you receive the actual Notice of Hearing before you retain an attorney, the attorney may ask to delay the case. You should still retain an attorney, because without one you may lose your case, but be aware that most attorneys need approximately four months to prepare for a hearing. The reason for this is that your attorney needs to review your medical records carefully, and the medical records of a disabled person may exceed 200 pages in length. After reviewing these records, your attorney may require additional medical records to be obtained from all doctors whom you have seen regarding your disability. Large hospitals sometimes take weeks or months to process medical record requests.

Finally, it is to your advantage to retain an attorney who has experience in Social Security disability claims, or who has a high degree of knowledge of medical terminology. Your attorney must use the medical records to prove that you cannot work, and Social Security disability is a highly specialized area of law. When choosing an attorney, ask about the total number of hearings the prospective attorney has won. Call us at 800-819-8123 to schedule a free consultation.

Next level: The Appeals Council