Basics of Social Security Disability Appeals

A denial at the initial level doesn't mean you can't win your disability case. You have the right to appeal if the SSA finds that you do not meet the definition of disability upon first-time review.

But it's important to know that the appeals process can take many months and years. For instance, the wait times for a hearing before an Administrative Law Judge are well over 12 months in most cities. If you decide to appeal and have been waiting a long time for an update on your case, you can always check your application or appeal status on SSA's online portal.

Read on to learn more about the Social Security disability appeals process, including your right to representation and the four levels of appeal.

Your Right to Representation

Let's imagine you receive notice that the SSA denied your claim(s) for Social Security Disability Insurance (SSDI) benefits or Supplemental Security Income (SSI) payments. You want to hire a representative but don't know who to appoint or how the process works. The good news is the SSA gives you a right to representation and forms that help hurry the appointment process.

SSA allows you to appoint a friend or another trusted and qualified person to represent you. But sometimes, selecting a Social Security disability lawyer is in your best interests. Working with an experienced attorney often makes the difference between further denials or approval of Social Security disability benefits.

Once you choose a representative, you will sign and submit a form called Claimant's Appointment of a Representative (Form 1696). This form is available to complete, sign, and submit online.

Representation usually costs nothing upfront. If you win your claim, you pay your representative's fee from your past-due benefits. There are two alternative fee authorization processes, the fee agreement and the fee petition:

Fee agreement:

• Representatives submit a Fee Agreement (Form 1693) to charge and collect a fee.
• The SSA approves or disapproves the fee agreement if submitted before the first favorable decision and it meets specific requirements.
• If the SSA approves the fee agreement, the most your representative can collect is 25% of your past-due benefits or $7,200, whichever is less.
• If the fee agreement is not submitted before the first favorable decision, the SSA assumes your representative will waive the fee or file a fee petition.

Fee petition:

• Under the fee petition process, your representative will submit a signed statement or petition requesting the amount they want to charge for their services. The SSA will allow this amount if they determine it is reasonable.
• The fee petition is typically filed when a representative's services have ended.

Important Deadlines and Considerations

If you're seeking a reconsideration, ALJ hearing, or review by the Appeals Council, strict deadlines apply. In each step of the process, you have 60 days to file for further review. The clock starts the day you receive notice of the SSA's decision. The SSA usually assumes this is five days after the date of the letter. Failure to file within the time frame may result in the inability to appeal.

You may need to work during the lengthy appeals process to support yourself or your family. You can work. But you must not earn at substantial gainful activity levels (SGA). SGA levels are $2,460 a month in 2023. If you make at or over that amount while your appeal is pending, the SSA may presume you can work and find you ineligible for benefits or not disabled.

Reconsideration

The first step in a Social Security Disability appeal is a request for reconsideration. At this level, Disability Determination Services (DDS) is still involved. The DDS is the State agency that decided your initial application. The DDS reevaluates your disability application and your eligibility for SSDI benefits or SSI benefits. The reconsideration is conducted by a person who didn't take part in the original decision.

At this stage, the DDS will review the evidence available during the initial review. The DDS will also consider any medical evidence about your medical condition(s) that you submitted or the SSA obtained after the initial review.

Administrative Law Judge Hearing

Many Social Security disability claims are also denied at the reconsideration level. If that happens to you, you can request a hearing before an Administrative Law Judge (ALJ).

If your hearing is at your local SSA hearing office, showing up and being on time is essential. The SSA may cover your travel costs if you need help. You may also appear at the hearing by telephone or by online video.

During the hearing process, the ALJ may question you and any of your witnesses. Expert witnesses, including medical and vocational experts, may also testify. The medical expert may testify about your medical impairment(s) and medical records. The vocational expert may testify about your work history and any work you may still be able to do.

You can also waive the right to appear at your disability hearing. In that case, the ALJ decides the case based only on the evidence of record.

The ALJ issues a written hearing decision based on the evidence of record, including any new evidence. You and your representative will get the decision by mail. If the decision is unfavorable, you still have two levels of appeal to pursue. Next, you can continue the appeals process by requesting Appeals Council review.

Appeals Council Review

If you disagree with the ALJ's decision, you may file a request for review by the Appeals Council. The Appeals Council considers every request but doesn't always grant review.

If the Appeals Council decides the ALJ made the right decision, it will deny your request for review. If the Appeals Council reviews your case, it will issue a decision or return it to the ALJ for further review.

If the Appeals Council declines to review your claim, or if you disagree with its decision, the next step in the appeals process is federal district court review.

Federal District Court Review

The last level of the appeals process is federal court review. The U.S. District Court Judge will decide whether the SSA judges made any legal errors when they found you not disabled.

There are three typical outcomes at this level. If the federal judge doesn't find any error, the judge will affirm the SSA's decision denying benefits. The judge may also send the case back to the SSA for further review or, in rarer instances, decide in your favor.

You may have had the help of a non-attorney representative at previous levels of appeal. At this stage, you want the help of an experienced attorney to help you navigate this complex process. A disability attorney will file your civil action in United States (U.S.) district court, submit legal briefs, and make arguments in court to help you win your case. A non-attorney representative cannot help you in federal court.

Talk to a Lawyer About Appealing an SSA Decision

Disability benefits are invaluable when injury or illness prevents you from working. That's why it's necessary to file an appeal if you've had a disability claim denied. While the appeals process is complex, a Social Security disability attorney can guide you and advocate on your behalf. Find an SSDI attorney and law office near you today.