Appeals In Social Security Cases

What You Can Do if Your Claim is Denied

1. If your initial claim for Social Security benefits is denied, you'll get a notice in the mail from the Social Security Administration, and that notice will inform you that you have 60 days to file a Request for Reconsideration.

Requests for Reconsideration are rarely granted. Between 2001 and 2010, 3 percent were granted in the worst year, and 13 percent in the best year. But you should submit a request anyway.

2. If your claim is denied again at reconsideration, you then have 60 days to file a Request for Hearing.

Your chances at a hearing depend, of course, on the quality of your case, but also very much on which judge you happen to get for your hearing. The hearing is the only place where you get to appear in front of a judge and testify about the problems you have that keep you from working. Favorable Administrative Law Judges (ALJs) these days approve about half of the cases that come before them.

3. If you don’t win at the hearing, you have another 60 days to file an appeal with the Social Security Appeals Council.

It is rare to win a case at the Appeals Council level, and unfortunately, the Appeals Council often takes more than a year to consider your case. If the Council reverses the ALJ hearing decision, it rarely orders that you get benefits; instead, it usually sends the case back to the same ALJ for another hearing, to get more information or ask the ALJ to explain the decision in more detail. However, most of the time, the Appeals Council just denies review of your decision.

4. If you're denied by the Appeals Council, you'll then have 60 days to file an appeal in the United States District Court, also known as “federal court.”

The federal court appeal is usually just on paper, with your lawyer and the lawyer for the government filing briefs and the court making its decision in writing. The federal judge can ask for oral argument, but that is rare, and it is just your lawyer and the government’s lawyer making legal arguments. There is no hearing at which you testify and present evidence. The federal judge does not weigh the facts or decide what evidence to believe. The judge considers whether the ALJ made any legal errors in its decision--errors like failing to explain why the ALJ did not believe your doctor’s opinion about your disability, or failing to include all of your physical and mental impairments in asking questions of the vocational expert at the hearing about whether you can work. If the ALJ didn’t make any legal errors, and if there was evidence supporting the decision (even if there was other evidence against the decision), the federal court will uphold the ALJ decision, and you'll be denied.

5. If that happens, you have 60 days to file an appeal to the Ninth Circuit Court of Appeals. The Ninth Circuit is the last court in which you have any chance of a favorable decision.

It is theoretically possible to ask for a review in the United States Supreme Court if you lose, but the Supreme Court grants very few requests for review, only in cases that are considered to be of wide application and great importance. If you are appealing, your lawyer files a notice of appeal in the federal district court. S/he then files an opening brief; the government files an answering brief, and your lawyer files a reply brief. The court holds oral argument before a three-judge panel at the old Pioneer Courthouse in Portland, and the court issues its decision, sometimes within a few weeks (which is usually bad news) and sometimes in several months to a year if the case is complicated or the judges have differences of opinion they need to work out. The court’s decision ends the case if it is against you. A favorable decision reverses the ALJ’s denial and may lead either to a payment of benefits or to sending the case back to the same ALJ for another hearing and decision.

In recent years, the immediate payment of benefits has become much less common, and some cases have been sent back for repeated hearings, taking a number of years to resolve. Appeals take a long time. Sometimes it makes more sense to pursue a new application for benefits or to do both at the same time.