Skip to main content

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

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).

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

Posted

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.

Mark as helpful

1 lawyer agrees

1 comment

Asker

Posted

Thank you for responding. Yes, you are correct in properly reading my question. Sometimes I wonder why others supply certain answers when I have stated otherwise in my details; it makes it difficult to receive proper answers when others misread what I ask, so thank you for properly reading my question. I often wonder how much they are actually reading before they answer. Hopefully the AC will do better than to remand, but to go ahead and make a decision on their own. I have found several federal cases which fit my situation almost perfectly. I submitted reference to SSR 83-20 in addition to http://law.justia.com/cases/federal/district-courts/oregon/ordce/3:2008cv01202/90334/21 to my representative, and he in turn forwarded it along with his appeal brief. The details of this federal case are eerily consistent to mine. As of now, the ALJ made an on the record decision to grant my disability, but because of an ongoing incorrect onset date issue, the medical expert was not given access to 8 years of my medical records. My onset date was one of the things the ALJ did not correct once instructed. I believe once the AC reviews my record in its entirety, they will make a decision on their own (hopefully). The wait time is what's killing me. Thanks again for your response.

Posted

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.

Mark as helpful

2 lawyers agree

3 comments

Asker

Posted

What do you mean my post doesn't pose a question that's answerable? Does the "additional information" section of my question not appear on your side?

Paula Brown Sinclair

Paula Brown Sinclair

Posted

The Avvo Q&A is an excellent resource for accurate information about the law and legal procedure. It is ill-suited to advising strategy in specific cases or predicting how a tribunal will rule. Expecting that of Avvo is unreasonable. You have asked a series of questions, and have reached the limits of what this public forum can do for you.

Asker

Posted

I don't know where you are coming from or what you are reading. I am not asking for any "strategy" - where are you extracting that nonsense? If you don't like what I'm asking, simply don't respond. I don't need you trying to instruct me on how to use a public forum or that I may be "asking too many questions". I am also NOT asking how a tribunal will rule. I don't think you are properly reading my questions in the first place. I simply asked if the AC would review a claim for the second time (considering a request was submitted in both circumstances) or if (considering a request was submitted), would they randomly just not review it. Who are you to determine what "this public forum" can do for me? If you don't feel you can add anything to my question, then you are more then welcome to just not respond. I would rather you not respond than to constantly question my reasoning for asking for help or to question the validity or necessity of my questions. That offers nothing positive and only invites additional frustration. You are the only one who questions my presence here. Just stop responding to my posts if you have such issue with me asking for opinions. I thought that's what this forum was about, no?

Posted

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!
------------------------------------------
Please remember to designate a best answer to your question.

The exact answers to questions like this require more information than presented. The answer(s) provided should be considered general information. The information provided by this is general advice, and is not legal advice. Viewing this information is not intended to create, and does not constitute, an attorney-client relationship. It is intended to educate the reader and a more definite answer should be based on a consultation with a lawyer. You should not take any action that might affect your claim without first seeking the professional opinion of an attorney. You should consult an attorney who can can ask all the appropriate questions and give legal advice based on the exact facts of your situation. The general information provided here does not create an attorney-client relationship.

Mark as helpful

1 found this helpful

3 lawyers agree

2 comments

Asker

Posted

Thanks for replying. Did you happen to miss the "additional information" section of my question? Based upon your reply, it appears as if you did not realize I had already submitted a request for review to the AC (this is the second request for review I mentioned). This is not a case where I would be relying on the AC to chose my claim at random for review - I submitted a request for review - actually my new representative submitted a short brief and included some emails I wrote him which explained the errors in detail - since he was new to my claim, he probably didn't review my claim enough to go back that far). So, the situation is that my claim is currently at the AC for the second time. This leads back to my question: since my claim was already remanded by the AC, will they take any special note when the claim is sent back to them for another review? Keep in mind a second ALJ hearing happened in between the first and second request for review. When one submits a request for review, does the AC actually review the claim, or is this where one's chances are (as I said before) a roll of the dice type of thing?

Clifford Michael Farrell

Clifford Michael Farrell

Posted

My experience is no, I do not believe they will not take any special note. However, perhaps your attorney has a good argument that will draw their attention to why the case is out of the usual run of the mill - and if so, that should be presented. Good luck to you.

Posted

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.com DISCLAIMER: This post is intended as general information applicable only to the state of Pennsylvania and is personal in nature, not professional in nature. The information given is based strictly upon the facts provided. This post is not intended to create an attorney client relationship, or to provide any specific guarantee of confidentiality

Mark as helpful

1 found this helpful

3 lawyers agree

1 comment

Asker

Posted

Thank you for replying. I often wonder how the information I type in my original question visually appears online. Sometimes I notice when I write further details in the "additional information" section, it seems as if that information either isn't being read by some, or it doesn't appear at the same time as my original question. The reason I wonder is because some responses often suggest things I have already covered in my question, but were only covered in the additional details section. As you were replying to my question, did you see the section titled "additional information"? The way this website works is the user is allowed to type their initial question, then submit it, then they are allowed to add "addition information". I wonder if when people read the question, they are only able to see the initial question and not the addition information. In case that information wasn't visible as you replied, I mentioned a new request for review was submitted by my new representative (he wrote a small brief and included a couple of emails I sent to him where I laid out the errors in detail). I assume he included those emails because he couldn't have been as detailed as I was since he just came on board with my claim. So, our current action is that my claim is at the AC for the second time. So with all that, going back to my original question: since my claim was remanded before, will the AC take special note when they receive a new request for review - as if there is any "flag" placed on my claim because of the initial remand?

Social security topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics