The statistics bear out that someone trying to get Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits are most likely to be successful at a hearing before an administrative law judge (ALJ). Check out my recent post regarding the hearing office wait times and approval percentages. However, as noted over 50% of Social Security Disability Insurance (SSDI) or SSI claimants lose at a hearing. The claimant must choose whether to appeal to the Appeals Council.
A claimant has sixty days to appeal an unfavorable ruling to the Appeals Council. It typically takes 12-24 months to get a decision form the Appeals Council. The Appeals Council first decides whether it will even hear an appeal. If it grants a review, it has the power to affirm, reverse in whole or part, and it can remand for a new hearing.
The claimant may submit new evidence that relates to the period of disability prior to the ALJ's decision. The scope of review at the Appeals Council is limited. The Appeals Council will review a case if:
- there is an abuse of discretion by the ALJ;
- there is error of law;
- the action finding or conclusions of the ALJ are not supported by the substantial weight of the evidence; or
- there is a broad policy or procedural issue that may affect the general public interest.
Common ALJ errors often sighted on appeals to the Appeals Council are:
- ALJ misconduct or bias;
- unfair hearing including failure to ask essential questions or refusal to give claimant time or opportunity to respond;
- failure to grant adjournment of a hearing date when there was good cause to do so;
- failure to grant additional time to submit new evidence where the request was appropriate and the amount of time requested was reasonable;
- ALJ committed an error of law or a procedural error;
- erroneous dismissal;
- rejecting medical evidence in favor of the ALJ's own observation of the claimant;
- failure to inform claimant of his right to obtain counsel;
- failure to give proper weight to unrebutted medical evidence;
- failure to give proper weight to claimant's subjective complaints or pain or other symptoms;
- failure to consider findings of disability by other government agencies;
- failure to properly apply Circuit Court law and properly evaluate evidence;
- relying on opinions of non-examining physicians to the exclusion of opinions by treating or examining physicians;
- improperly applying the grids;
- failure to consider all relevant evidence; or
- failure to follow proper procedure such as not proffering evidence subsequently obtained after the hearing to the claimant or claimant's representative.
Another area to look for in supporting errors by the ALJ is the use of boilerplate language. For instance, opinions commonly hold that "after considering the evidence of record, the undersigned finds that the claimant's medically determinable impairments would reasonably be expected to produce the alleged symptoms, but that the claimant's statements concerning the intensity, persistence and limiting effect of these symptoms are not entirely credible." As the Seventh Circuit found in Parker v. Astrue, "this is a piece of boilerplate that appears in virtually identical language in cases and it is not only boilerplate, but it's meaningless boilerplate." The statement by trier of fact that a witness' testimony is not "entirely credible" yields no clue to what weight the trier of fact gave the testimony.
If the AC affirms the unfavorable ruling of the ALJ, then all administrative remedies have been exhausted and the only remedy is to file a claim in Federal District Court or start over.
If you need more information about a Social Security Disability/SSI, personal injury, EEOICPA, long or short-term disability, VA disability, or a workers compensation matter, please contact the Law Offices of Tony Farmer and John Dreiser for a free case evaluation. We can be reached at (865) 584-1211 or (800) 806-4611 or through our website.