Request For Review - A Second Time At The Appeals Council For Disability

Asked over 1 year ago - Amarillo, TX

Here is the scenario: I was denied after my first ALJ hearing. My representative withdrew his representation (mainly because he made a mess and didn't want to clean it up). I had a hard time finding replacement counsel because the first representative didn't waive his fees (even though he did nothing to advance my claim). I ended up writing and submitting an appeal. I was granted a remanded hearing and the AC instructed the ALJ to correct several major mistakes (one being an incorrect onset date). I obtained new representation right before the second hearing. By the time of the second hearing, the ALJ did not correct ANY of the mistakes the AC instructed. The ALJ denied me again based solely by the combination of those mistakes he did not correct (these are clerical errors).

Additional information

A new request for review was submitted claiming the ALJ continued to adjudicate my claim based off errors. Additional evidence was submitted to show the ALJ's errors and how they affected my claim negatively.

My question: since the AC instructed the ALJ to correct issues, since he didn't correct them, would that automatically gain another review from the AC, or do they randomly chose which claims to even review? I've read some federal cases where the AC apparently randomly did not review a claim which was ultimately awarded benefits. Will the AC more than likely take another look at my claim since they have already remanded it once, or is this a roll of the dice type of thing?

Attorney answers (4)

  1. Stanley F. Denman

    Contributor Level 9

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    Answered . Attorney Farrell's comment seems to imply that the question related to Appeals Council review of the claim on its own, not in response to a claimant request for Appeals Council review. My understanding of the question is that the claimant did in fact appeal the 2nd denial to the Appeals Council. Therefore, IMO the negative prediction of Appeals Council action does not apply to the question.

    If the Appeals Council sent a case back to an ALJ with specific instructions, and the ALJ in fact failed to follow those instructions, and the claimant timely requested AC review - pointing out specifically what the AC instructed the ALJ to do and the fact that she did not do it - then there is a very high probably that the AC will remand the case again for another hearing.

  2. Clifford Michael Farrell

    Contributor Level 19

    3

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    Answered . Under the best circumstances, the AC only grants review in less than 20% of all cases (currently 18-19%). For a second go round, my experience is it is rare that the AC will re-review this on their own.

    I would suggest that if you have an attorney, you talk to that attorney about filing legal agruments with the Appeals Council. And if you do not have an attorney, you may contact your local city, county or state bar association to see if they have a lawyer referral program, or you may contact your local legal aid office if you cannot afford an attorney.

    You may also contact the National Organization of Social Security Claimants' Representatives (NOSSCR) for the name and email address or telephone number of attorneys in your area. The telephone number for the lawyer referral service of NOSSCR is 1-800-431-2804. NOSSCR's website is www.nosscr.org.

    In addition, you can find a Board certified specialist in Social Security by contacting the National Board of Trial Advocacy. They evaluate lawyers (independently) in many types of claims and require extensive experience and testing before a lawyer is certified. They have a section specifically for Social Security: The National Board of Social Security Disability Advocacy, Divisions of the National Board of Legal Specialty Certification.

    Their link is: http://www.nblsc.us/

    I hope this information helps. Good luck to you!
    ------------------------------------------
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  3. Andrew W. Norfleet

    Pro

    Contributor Level 12

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    Answered . Attorney Sinclair and Attorney Farrell are correct. The AC maintains a very low rate for cases that are reviewed and further action ordered,

    It appears that you have done an excellent job in maintaining the record and I congratulate you on your successful appeal to AC. That said, you should discuss this matter with your attorney as soon as possible to determine what your next course of action should be.

    I wish you well.

    Andrew W. Norfleet, Esquire Helping disabled individuals throughout Pennsylvania. awn@norlaflaw.com www.norlaflaw.... more
  4. Paula Brown Sinclair

    Contributor Level 20

    2

    Lawyers agree

    Answered . The Appeals Council claims to review every appeal on the merits, but sometimes it seems the review is cursory. Your post does not pose a question amenable to comment in a public forum like this.

    This answer is offered as a public service for general information only and may not be relied upon as legal advice.

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