If the Social Security disability judge denies your case and sends you a decision marked “unfavorable” you will feel angry, offended and frustrated. After all, disability cases can take two to three years from the date of your application to the date you receive the denial.
During that time, you have been unable to work, most likely struggling financially and basically putting your life on hold waiting for a decision in your case.
Now, after talking to you for around 45 minutes (the length of a typical hearing), the judge has decided that he/she just doesn’t believe your testimony about the severity of your symptoms, or how these symptoms would likely impact you at a simple job.
Even worse, under recent Social Security rules, the judge is allowed to discount the opinion evidence from your long time treating doctor(s) in favor of a medical-vocational assessment by a SSA staff doctor who never even met you, or a doctor who met you for an hour as part of a consultative evaluation.
If you should get an unfavorable decision, what should you do?
First, remember that you only have sixty days to appeal – if you miss the sixty day deadline you would have to start over, and, more importantly, you could not argue for an onset date prior to the date of the unfavorable decision. In many cases, you might not have enough work credits to pursue an SSDI case if you refile.
Second, you have to decide whether to appeal to the Appeals Council or to file a new application. You cannot do both at the same time.
Third, if you do appeal to the Appeals Council, you (and your attorney) will need to identify a mistake of analysis in the hearing judge’s decision. It will not be enough that the decision stated you completed three years of college when you only completed two, or that an MRI was performed on August 5, and not September 3. Mistakes like these are rarely material to the judge’s decision and the Appeals Council will not remand a case because the judge made an error that did not factor into the reasoning behind his decision.
I have seen cases where the Appeals Council declined to reverse the judge even when the mistake was, to my eyes, significant. In my experience the Appeals Council is looking for errors in the judge’s analysis.
For example, I recently won a remand in a case where the judge found that my client, age 50, had the residual functional capacity to perform light work, but the hypothetical question the judge posed to the vocational witness asked about an individual who could perform light work with significant modifications. The vocational witness identified several sedentary (sit down) job but none in the light category. If my client was not able to perform light jobs, she would meet one of the grid rules. Since the judge did not consider the impact of additional restrictions on my client’s light capacity, his analysis was faulty. The Appeals Council also noted that the judge did not consider a 3rd party adult function report, completed by a person who knew my client in a professional setting for many years.
Statistically the Appeals Council only remands (sends back) around 10% of appeals filed. This means that 90% of cases appealed to the Appeals Council are rejected. Compared to the approximately 45% national approval rate at the hearing level, you can see that your odds are not great at the Appeals Council. However, before you forego the Appeals Council option, have a disability lawyer review the unfavorable decision (but don’t wait until day 45 after your receipt of the unfavorable to start looking for an Appeals Council lawyer.
If you received an unfavorable hearing decision and would like a case review, you can ask for it here: https://bit.ly/Contact-Jonathan and make note that you were denied at hearing and want to consider appealing to the Appeals Council.
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