In this post, I will give you some tips and tricks on how to appeal your claim at the Appeals Council level (Let’s call them AC).
You went to your disability hearing with the ALJ and you just received your denial.
I know what you are thinking, “I presented evidence of my disability and the judge still thinks I can work!”
Or worse, you presented evidence of disability, and even though the Vocational Expert said “no jobs“, the judge said you can work.
Or even worse, the judge got the facts so wrong that you are wondering if that decision was written for your claim or someone else’s.
How Do I Appeal a Decision at the Appeals Council?
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The first thing you should know is that you have 60 days to appeal your decision. You may file an extension but you won’t know if your extension was approved until the AC decision comes back.
So don’t wait to file that appeal.
I’m assuming here that you don’t have an attorney or your attorney dropped your case after the ALJ denial. If you have an attorney, excellent! I’m sure he is setting the wheels in motion.
Anyway, you can just appeal the claim using their form (HA-520) and send it by certified mail, then you can send more arguments later.
That way you will have plenty of time to read the decision more closely and present a better-written argument instead of rushing to do everything in 60 days.
The form will contain some space to list your reasons to appeal. However, the space is so limited that you really should prepare a brief or statement to make sure you cover everything that you think it’s important to discuss. Be sure to send your arguments soon after submitting your appeal form.
Why Did I Get Denied in the First Place?
There are many reasons people get denied at the hearing. I will list a few of the most common ones below. I hope this will help you understand why you were denied benefits now.
This may also help you fix things if you have not had your hearing yet and before it’s too late.
Here they are:
Your medical records are inconsistent with your activities reported in the Adult Function Report.
You may have said things in your forms that show you are more active than you should. You would be surprised how common it is to see the claimant’s own words used against them in the ALJ decision.
So if you are still in the phase of completing the Adult function Report, please be careful how you report your activities.
To learn how to complete your forms please read my post about How to Properly Complete Your Disability Forms.
It is also not uncommon to see “cringe-worthy” things you said to your doctors that are just “deal breakers”.
For example, mentioning vacations, or how you spent all day helping someone move, or volunteered at a rummage sale at church, etc.
All these activities look really bad when mentioned in the records and judges will be suspicious of your activities. They often show up in a denial too.
My suggestion is, do not overshare with your doctor.
He doesn’t need to know about your vacation or the rummage sale. I know it is tempting to say that spending all day at the rummage sale hurt your back. But do you really want the judge to misinterpret that one-time activity as something you do often?
Just focus on the pain and treatment.
You did not provide the most current medical records before your hearing and you chose to go ahead with the hearing anyway.
Unrepresented claimants often believe that the judge will order medical records just like the lower level Social Security office. While there is a rule out there that they are supposed to do that. Most judges will not do so.
It is up to the claimant to provide their own updated medical records. Then what you see is a denial of benefits because the judge simply thought your medical records from a year or two ago were all the treatment you had.
For Social Security, “no treatment equals you are not that impaired”.
In this case, it is very important that you provide all your medical records from the time you requested your hearing until 5 days before the hearing.
To learn more about submitting records during the pendency of your hearing, please read my post about Not Submitting Medical Records at the Last Minute.
Your medical treatment, despite your diagnosis, does not really show your physical limitations.
Unrepresented claimants are often unaware about the content of their medical records. They just assume that if they are seeing a doctor, including specialists, they are ok.
Far from reality.
In my post about How to Fix Your Medical Records, I talk about how doctors are not always great at writing the right things in your records. Please read the post if you wish to learn more about getting your records up to speed before it’s too late.
If you read your records carefully, you will find that doctors leave a lot of things out. They often repeat statements, probably because their computer software copies the last visit info into the next visit.
Another issue is a doctor who knows your story too well. They tend to skip writing detailed records because they don’t need reminders about what your issues are.
If you read my post about Is it time to get rid of Dr. X, I explain how doctors who have been treating you for a long time may not actually be a good thing for your claim. Please read the post to learn if your doctor is skipping notes because he knows you too well.
Your doctor is not listing your functional limitations in a way that clearly shows you cannot work.
While your doctor may be listing your impairments and even writing some of your symptoms really well. It is often difficult to know how limiting your symptoms are just by reading the records.
One common example is spinal issues. The doctor may write in your records how your movements are limited and that you can only flex or extend for a certain amount. But these notations don’t really tell the judge how far you can walk, or sit, or stand.
Ideally, your doctor would mention some of these limitations on the records. But most will not.
This is where things get complicated because while you know your limitations if it is not on paper, they don’t exist.
That is why it is so important to have a Residual Functional Report submitted with your evidence. This is a form your doctor can fill out and which will translate in numbers, the limitations that prevent you from working.
Please read my post about the Residual Functional Report to learn more about the importance of this form.
In fact, this form is so important in a disability claim I even created A Residual Functional Capacity Course.
The course will teach you how to convince your doctor to complete the form(s). It will also show you how to find other ways to get the form completed when your doctor refuses to do so.
And the best part: I include forms for physical impairments and mental impairments so you can present them to your doctor.
While you could get the forms for free online, those forms are a bit incomplete and they leave a lot of the important stuff out: on purpose!
Ideally, you have an attorney who will have much better forms. But if you don’t, the course will provide you with that.
Simply click on the image below and you will be directed to the course sign up page:
The Vocational Expert said things you did not understand at the hearing and yet he found jobs you could do.
The cross-examination of the Vocational Expert is an important part of the hearing. The goal is to have him or she say the magic words: “no jobs”.
But if you are not trained in the art of cross-examination (a good attorney is), then you will feel like a deer in a headlight. This is why it is so important to have an attorney by your side at the hearing. There are so many things that can go wrong. This is one of those moments and this is often used in the denial too.
Please read my post about Cross-examining the Vocational Expert to learn more.
The idea of a good cross-examination is to be able to add things to “the record” that can be used in your appeal if you get denied. The “record” is not only your medical records but also the transcript of the recording of the hearing.
When attorneys prepare your claim for a hearing, they are also preparing your claim for a potential appeal if the judge denies the claim.
This is one of the reasons why it is so hard to find an attorney who will represent you on an AC appeal if they were not the attorneys from the beginning. They were not able to include everything they think would make a difference in your claim appeal. By the time you are appealing to the AC, you will not be able to add more evidence to improve your chances.
The record is considered closed after the ALJ denial and the AC will only look at the records available to the judge at the time of the hearing.
Things To Do to Avoid an Appeals Council Denial
You must order you records frequently while you are waiting for your hearing. Take a close look at them. Learn to read them properly to see if they really support your claim.
There is usually a waiting period of 15 to 24 months (depending on your state) before you see a judge. So there is plenty of time to order records, get more treatment, fix your treatment and even find an attorney to make sure you have all the necessary tools to win your claim.
Remember: Attorneys cannot charge you fees until and if they win your claim. So why risk your chances by going alone?
It’s easy to get caught up in the “life is unfair” situation and “I can’t wait any longer” when waiting for your hearing. I know it is difficult and frustrating.
But I can honestly say, after representing claimants for many years, that the waiting period is a “blessing in disguise”. In a lot of cases.
A lot of claims are nowhere near ready by the time they get to a hearing. And when the claimant decides to hire an attorney, it is the best thing they can possibly do. Especially if they do it early enough after the request for hearing.
There will be plenty of time for the attorney to look at the records. He can also make suggestions for things that you could do to improve your chances, order functional forms, get you ready and prepared for the hearing. The best part is that the attorney will know exactly how to address the judge and the vocational expert.
And even if the claim is denied, your attorney will have built enough of a paper trail so that when it’s time to appeal. He will also know where to look for mistakes and what rules the judge broke when making the decision.
What if I Don’t Have an Attorney or I Can’t Find One Willing to Take My Case to the Appeals Council?
If no attorney will take your case (I explained why some won’t above), it will be up to you to appeal, of course.
The first thing you should do and the trickiest is to separate “error of law” from “error of fact” when writing your appeal arguments.
The Appeals Council is not interested if the judge said you pick up your kids from school twice a week when you testified that you only do that twice a month. This is an error of fact. They are interested in rules the judge broke while making his decision (i.e. error of law)
For example, a judge is required to hire a Vocational Expert for your hearing. If he decided to make his own assessment regarding your ability to work and did not have a Vocational Expert at your hearing, this is an error of law. The ALJ is not an expert in job placement. The Vocational Expert is.
This is something you can argue if you know that there was no Vocational Expert at your hearing. Especially if the judge provided a list of jobs you could do and denied your claim based on that.
Another common example, the “Treating Physician Rule“. This rule says that the ALJ must give more weight to YOUR doctors than the Consultative Examiners.
Remember those Consultative Examiners from Social Security, that you saw a couple of years ago?
Yup. Some decisions will say that the judge believes those examiner’s ONE-TIME examination is more reliable than the MANY examinations from your own doctors. This is an error of law.
So when you are going through your decision and preparing your arguments you need to focus on errors of law. You can mention errors of fact if they support the error of law but do not focus on errors of fact alone.
Also, be sure to avoid writing things like “the judge lied”, or any abrasive terms like that.
It will get you nowhere and most decision makers won’t sympathize with you if you are calling one of their own a liar.
The best approach is the “underdog approach” but with a firm grasp at what errors of law were made.
The underdog approach is a level-headed written argument with a combination of facts and law. You should also avoid exclamation points and words of outrage, unfairness, and rudeness.
While the judge will decide your claim, most decisions are not written by the judge. The judge will simply say YAY or NAY and it is up to the “decision writer” to develop the decision.
These decision writers are also on a time crunch with so many cases to write. They often end up mixing facts from one case to another. I know this is not your fault and I’m not defending them. But I need you to understand why so many facts are often wrong.
That’s why I would be careful to call the judge a liar. He may not even be aware that some of the facts are not 100%. Imagine that the average case has over 300 pages if not thousands. Plus he also reads thousands of files every week. Imagine remembering every detail in every case.
So when it’s time to appeal, you just have to make sure you state your claim clearly and concisely and why the decision was incorrect and why should be reversed.
Again, ideally, you have an attorney doing this. After all, how can you find all errors of law if you don’t know the law and can’t learn it in 60 days?
But if there is no option with an attorney, just be level headed and avoid wasting time with minutiae.
Can I Submit New Evidence With My Appeal?
The purpose of the Appeals Council is to review your claim and see if the judge made a mistake based on the evidence presented to him at the time of the hearing. Adding more records will not change that unless the evidence was not available to you at the time but it already existed at that time. While you can send new evidence, it will not likely be considered.
More importantly, there will be a better time to present that evidence:
- If your case gets remanded back to the ALJ with instructions to review the old record and any new evidence, or
- If your case gets denied again, and you choose to file a new claim.
What Can the Appeals Council Do for My Claim?
In most cases, there are three outcomes when you appeal to the AC:
- Your case is sent back to the same judge with instructions to evaluate the parts he or she got wrong or missed. He can then schedule a new hearing and go through the entire record he already went through, AND the new evidence you will submit;
- The AC can also award your claim if it is clear that any other judge would have awarded the claim in the first place. In this case, you will get a “fully favorable” decision and you will start getting your benefits soon after;
- The AC can simply refuse to review your claim. Your options after that are to file a new claim or File a claim/appeal in Federal Court (please consult an attorney to see the best approach for your case).
As mentioned above, the ideal situation is to have an attorney file your AC appeal. But nothing keeps you from filing the appeal yourself if you can’t get an attorney to represent you at the AC level.
There are also situations where you have no other choice but to appeal, even though there is a high risk of denial again.
So while you have to do what you have to do, it is important for those reading this post before going to a hearing to make sure to use the waiting period wisely.
Get better treatment, better records, hire an attorney early on to make sure you go in with all the tools necessary to win your claim at the hearing level. This is where most people win.
The AC is not usually the place to have high expectations. The percentage of wins at that level is very low.
I know it is tempting to go alone or think you can “wing” this without an attorney. But so many claims are “doomed” from the beginning because the person did not know what they were doing. I know it is possible to win without an attorney but they are not the norm.
And if you already started, work on fixing things before it’s too late.
Don’t forget to join my Exclusive Facebook Group Realtactics4disabilityclaimsVIPs for questions about the process.
Until next time,