Many claimants attempt to apply for Social Security for themselves after they see a family member go through the process, and feel more confident about their own claim. However, this can result in some confusion in various different areas of the process due to recent law changes. An area causing confusion is the claimant’s options after seeing one of the most soul crushing headings on a Social Security mailing: Notice of Decision – Unfavorable. This indicates the claimant was denied by an Administrative Law Judge. Prior to 2012, the claimant could then file a Request for Review with the Appeals Council, and a new application simultaneously, if the claimant met the technical requirements for a new application. Now, a claimant has to choose between appealing an Unfavorable decision, or filing a new application.
Part I: When to Choose an Appeal
An appeal is not necessarily the best choice for everyone who disagrees with an Administrative Law Judge. The Appeals Council is primarily concerned with two things. The first inquiry is whether the Administrative Law Judge made an error of law. An error of law does not mean that if two people looking at the same medical records could reasonably disagree, then the tie should go to the claimant. Rather, an example of an error of law is when an Administrative Law Judge improperly disregards a Medical Sources Statement from a claimant’s treating provider, who is an MD, DO, PhD or PsyD and the statement is not inconsistent with the medical evidence of record.
An error of law may also exist when the Administrative Law Judge’s conclusions are not supported by the medical evidence of record. Again, this is different from a situation where a reasonable mind could disagree with a finding of “not disabled” after reviewing the medical evidence. An example of when the Administrative Law Judge’s opinion may not be supported by the medical evidence is when an Administrative Law Judge finds the claimant capable of performing unskilled work, when a treating doctor of the claimant, the claimant’s Consultative Examiner, and the hearing’s Medical Expert have all found the claimant unable to do so. This is different from when the Administrative Law Judge gives less weight to a treating doctor, when his opinion is inconsistent with his own treating records, the testimony of the claimant and the testimony of the medical expert, which all point to a finding of “not disabled.”
The second inquiry that the Appeals Council is concerned with is whether new and material evidence exists. Contrary to popular belief, this isn’t simply all medical records since the judge’s decision. New and material evidence is evidence that was not part of the record seen by the Administrative Law Judge, and either deals with the time period between the Alleged Onset Date and the date of the decision, or relates back to that time period. An example of this would be a hospitalization that occurred during the relevant time period, but was, for whatever reason, not included as part of the records. Another example would be a situation where the judge found no medically determinable reason for the claimant pain in upper extremities, but three months after the decision, the claimant’s diagnosis was finalized as Diabetic Neuropathy. In either of those examples, the judge’s decision could have been altered by those records, and the Appeals Council would be interested in seeing the records to determine whether they might have materially changed the outcome.
Even if no new and material evidence is available, and there is not error of law patently obvious in the decision, a claimant may still be required to appeal their claim if they wish to preserve it. If an application is for Disability Insurance Benefits only (i.e. the claimant has too many resources to qualify for Supplemental Security Income), and the claimant’s Date Last Insured under the Social Security Disability system is prior to the Judge’s Unfavorable decision, then a new application is barred under the theory of Res Judicata (the claim has already been adjudicated), without new and material evidence to warrant the claim to be reopened. In these instances, the Appeals Council is the necessary next step for a claimant to preserve their claim.
Success at the Appeals Council is rare. The most frequent result is a remand to the same, or different Administrative Law Judge, with further instructions on how the change or alter his/her analysis. This is because that, even if the Judge remedies the legal errors, further testimony is needed from either the claimant or an expert. In very rare circumstances, the Appeals Council will reverse the Administrative Law Judge’s decision entirely and issue its own Fully Favorable decision.
There is only one Appeals Council to review all the appeals from every Administrative Law Judge decision, claims can take between 12-15 months to process. Furthermore, the Appeals Council is very conservative. The Appeals Council declines to review approximately 80% of cases. If a claimant is denied review by the Appeals Council, then the Administrative Law Judge’s denial becomes the final finding of fact in the administrative process. At that point, the claimant’s remedies are limited to filing a new application alleging an onset date no earlier then the day after the Administrative Law Judge’s decision, or filing a civil action in the United States District Court.
