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Social Security Disability Appeals Council Procedures

Austin, TX |

When a claim is denied at the ALJ hearing level and a request for review is initiated, what "exactly" happens with that claim. Does the claim get placed in a stack while it waits for review? How many people are involved with the review? Does the AC review ALL the medical records? Do they listen to the hearing audio? If they notice a judicial error of record, will they make note of it even if the representative fails to address certain issues? Will the AC take into consideration a previously filed request for review?

My claim is currently at the AC for the second time, and I believe it's there for the same exact reasons as before. The ALJ and my new representative did NOT address the issues that led to the previous remand. I would like to know just how in depth the AC will review my claim.

Attorney Answers 5

Posted

What exactly happens at the AC - I honestly do not know. I believe however, that a group of judges, assisted by clerks, review the recording and the records. they are not looking to see if they agree with the ALJ. Rather they are looking to see if there is sufficient support for the outcome reached by the ALJ, and to make sure the ALJ followed all the rules and procedures to assure you received a fair hearing.

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Posted

This is the second time my claim has been sent to the AC. After my first ALJ hearing denial, my then lawyer withdrew representation. I submitted my own request for review and my claim was remanded with instructions for the ALJ to correct many of the errors I noted. My then lawyer turned out to be a complete incompetent wreck. Once my second hearing was scheduled, I was able to obtain a new lawyer. He felt my claim was a simple win, so he didn't review the core of my claim even though I tried to explain to him the reason for all the errors in my claim. He didn't feel anything was relevant. He, too turned out to be incompetent to a point because he didn't allow me to speak, and the whole hearing was 15 minutes long and only consisted of the ME speaking. The ME was given very restricted access to my medical record because of an ongoing incorrect onset date issue (part of the incompetence of both lawyers). That part is a long story, but my question is: will the AC review my previous request for review and compare the instructions to find out the ALJ didn't make those corrections for the second hearing? Will the AC go through each page of my record?

Sean Michael Quinn

Sean Michael Quinn

Posted

hard to say. if they issued a remand and if they gave orders for the ALJ to follow, and if the ALJ did not follow, then they will likely order another remand.

Sean Michael Quinn

Sean Michael Quinn

Posted

but, you cannot go by what I say is likely to happen. you have to prove it up to the AC so they know what to look for.

Asker

Posted

Thanks for your answers. My current lawyer submitted a short brief with the appeal, and he pointed to a couple of the previous issues. My concern is he didn't specify any exhibits, so I'm weary of how deep the AC will review the records. I don't know what it is with local lawyers around me, but it seems as if they are becoming very lazy in their job. I'm stuck with a decision of do I fire my lawyer now or wait until the AC makes a decision. I still think there is relevant evidence that was never submitted, but neither lawyer will submit these things. These are records that would directly satisfy listing criteria language, so I don't know why the lawyers feel "it' not necessary". My gut tells me to fire the lawyer and submit the evidence myself.

Sean Michael Quinn

Sean Michael Quinn

Posted

I am always leery of a client going it alone on a SS case. some lawyers do a lousy job of explaining to their clients what exactly they are actually doing and why (as well as why they are not doing something). but usually there is a good reason for the action or inaction. perhaps if you had your lawyer sit down and carefully explain everything he/she is doing and why, then you would feel more comfortable. again, even if the lawyer is doing everything right, you still might lose, as the odds at the AC are still long. but I do not see any reason to go it alone.

Posted

I would not expect nor rely on the Appeals Council combing the case for errors. It is pretty clear that you need to identify the errors from the ALJ hearing and raise those to the Appeals Council (although admittedly the Appeals Council is far less of a true appellate review than federal/state appellate courts). Having said that, I would be surprised if both the ALJ hearing the case on remand and your representative did not address the issue that led the Appeals Council to remand the claim in the first place. Nevertheless if this is the second time around at the Appeals Council for you on the same claim, then I doubt they will view the case in a vacuum and not recognize the issues that originally supported a remand.

It is impossible to give specific answers to questions without meeting and fully discussing all of the potential issues that may not be addressed by your question. The answer(s) provided should be considered general information and are not legal advice. Viewing this information is not intended to create, and does not constitute, an attorney-client relationship. The answer provided is intended to educate you and point to issues for you to raise in a consultation with a lawyer. You should not take any action that might affect your claim(s) without first seeking the professional opinion of a licensed attorney.

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Posted

I think one of the problems I am having with my claim is the simple fact there are so many errors (mostly clerical) in my claim (between the different SSA departments), no one seems to be taking ownership of their part. One of the main errors was made on day one of my application. The local SSA employee entered my AOD incorrectly. I submitted September 2001, she entered November 2009 (which is my protective filing date). To make a long story short, my AOD was one of the things the AC instructed the ALJ to correct (there is a trail of documents to show the AOD I submitted is the correct one). Even though the AC instructed the ALJ to correct my AOD, he never did. The problem with this is my first 2 denials were solely based on this incorrect AOD. With my DLI of December 2006 and with them entering my AOD as November 2009, that automatically places me in a bad corner. They kept denying me claiming I didn't have enough work credits, but this should have never been the case. Because of this incorrect AOD, the ALJ instructed the ME that his testimony would only cover November 2009 to present (this was written on his notice of hearing). I sent yet another complaint about this AOD issue - my complaint was turned into an exhibit. Even at the beginning of the second hearing, the ALJ STILL referenced my AOD as November 2009. My lawyer at least spoke up about this, but he failed to mention how this error has affected me since day one. This ongoing issue blocked over 8 years of medical evidence from the ME's eyes. According to his testimony, it's very clear he never saw/reviewed ANY record before November 2009. His whole 10 minute testimony only referenced 3 documents which were dated 2010. Before the hearing, I tried to show my lawyer all the errors I found, but I guess some lawyers feel as if claimants aren't smart enough to have a valid concern. The ME testified by telephone - I didn't know this until I walked into the hearing. My lawyer didn't object to this. The ME is only certified as a child psychiatrist, yet my impairment is Ankylosing Spondylitis (arthritis family) - my lawyer didn't even challenge the ME's qualifications. It's all just a big mess, so I'm questioning whether I can even rely on my lawyer at this point forward. I was at least able to talk him into submitting an appeal, but even then, the content he submitted with the appeal were emails I sent to him when I complained about all the things he didn't address. I just wish I could sit down with a judge or someone that I could actually show all the errors that have plagued my claim.

Vance Tate Davis

Vance Tate Davis

Posted

This really does sound like a mess. Unfortunately, about the only thing I can tell you at this point is that hopefully your emails that were submitted with the second request for an Appeals Council review is as clear as your comment here. If so, then I am hopeful that you might win a second remand and get a different ALJ for the hearing. While I know this is not what you would want to hear, there is also the possibility of appealing to U.S. District Court, which normally doesn't have a good likelihood of success for the "average" SSDI claim but if the facts are as you have stated here, then I think you have a strong basis for the appeal. But in any event, I hope that you have already had a very frank discussion with your attorney and I am wondering how that went as far as what that attorney's explanation was to you on your concerns. I would recommend that you consult an experienced disability lawyer in your local area and look for one who handles federal appeals to get a second opinion as well. You MIGHT want to consider firing your attorney if you truly feel that the errors and omissions here warrant that, but I would not do so unless and until you have retained a new attorney to take over. If you cannot find an attorney like I am recommending for that second opinion, you ought to contact Nosscr (National Organization of Social Security Claimants Representatives) for help finding a federal appeals lawyer nearby.

Asker

Posted

Thanks... I really think after all this is over and done, I'm going to write a detailed history of all the events that have happened and submit my story to a few organizations. I really feel I have some ethical things going on not to mention a total disconnect in the system (I mean, I caught my first lawyer "photoshopping" the fee agreement and appointment of representative - another long story). I also think a lot of people (especially on this web forum) seem to doubt my claims because "they seem so unrealistic" as if I am making them up. I can understand some stories may seem so far-fetched that people will side with "the system" and not some lay disability claimant, but I have it all in black and white. Little do they know how much one can learn about this whole process when placed into the corner I am in now. In case you are intrigued, here are a few more bits about my claim. Even considering the ME only had limited access to my record, he STILL recommended my disability, BUT as of 2010 (since that was the first record he was able to review). Even though I have totally favorable RFC's from a 20+ year relationship with my PCP and rheumatologist (including two additional source statements from her), x-rays showing my fusion and "hyper kyphosis" of my spine dating all the way back to 2003 (including 2 source statements from my chiropractor - which none of my lawyers would submit), etc... The ME even said I met listing 14.09C1 (with his limited access to my records) - and the ALJ agreed. Somehow the ALJ changed my AOD to 2010 in order for me to get a SSI award and then dismissed my SSDI claim (because with him changing my AOD to 2010, I definitely would no longer have the credits). This little switcher-roo happened under my nose as I was in a complete daze of "what the hell is going on". But even the SSI award isn't worth anything because I had like $200 over the limit in assets (which my lawyer claims he was unaware of my finances - then why was he the first one to agree with changing my AOD in order for me to get a SSI award)??? There is more, but I don't think it will ever end. So for now, I'm waiting for the AC to do their thing. I will contact NOSSCR and see if they can suggest something for my predicament. Thanks again.

Posted

Our practice has had some experience with the AC and it's been fairly negative, to be honest. For example, one recent case's opinion had numerous errors in it. Evidence was cited that didn't exist, there were inconsistencies between statements of the facts, and it was pretty clear the judge or clerk who wrote the opinion did a sloppy job. In the end the ALJ's decision was not overturned.

The point is that regardless of what happens behind the closed doors of the AC, don't get your hopes up.

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Posted

Well thanks for bringing your negativity to my question. Thanks exactly what I was looking for. I imagine people ask questions in here for advice, not to be deflated just because you had a bad experience with details that have absolutely nothing to do with my claim.

Posted

For specifics on what happens when your case is being reviewed by the Appeals Council, you may go online at ssa.gov rules and regulations and look under HALLEX. The better answer may be to have a meeting with your current representative to address your concerns. Since the ALJ must address the order of the appeals council, his/her failure to do so could be a basis of having your case remanded for a second time.

Good luck.

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Posted

The HALLEX (or any other online resource) does not give any specific details about how the actual process works (at least that I have found). All these resources give very broad generalizations. What I would like to know is the specific steps taken, how many people are involved, etc. Actually, opposed to what you said, my lawyer would the worst person to address my concerns because his inept representation is the main reason I am at the AC for the second time. With him being my second lawyer and the fact I brought my whole claim to him already wrapped up in a pretty little bow shows that he didn't really have much work to begin with. With that in mind, he really didn't do anything additional. He apparently didn't review my whole claim because (and as I pointed out to him), there are so many errors in my claim that even the AC instructed to be corrected, yet my lawyer still didn't address those things during the hearing. I don't know why he even bothered because he barely argued one single issue and then literally say "that's all I have". There is no other scenario that would make sense other than the fact he simply did not review my claim enough to know what issues needed argument. I need to speak to someone in person to see if my lawyers committed any ethical violations which could very well have negatively affected my outcome. THIS is the reason I can no longer ask my representative anything (because he is part of the problem).

Posted

I would like to address what I believe as a social security disability attorney of 20+ experience is the critical issue, rather than your laundry list of what would otherwise be very valid questions. The critical issue is the lack of confidence you have in your "new representative". By inference you have had at least 2 attorney/representatives that you are unhappy with. This fact creates, for me, three possibilities: (i) you have been unlucky/unwise in your choice of representatives, (ii) you have a weak claim for disability and you are taking it out on your representative(s), or (iii) you have had hearings before an ALJ who tends to deny claims and you are taking it out on your representative(s). You will have to look at the situation, and yourself, and clearly determine which is correct. As a social security attorney of many years I believe the level of quality for disability attorneys is quite high, so possibility (i) is IMO the least likely. Good people with good claims get turned down: it doesn't mean it is the representative's fault.

Your moving forward with an appeal, with a representative you claim is not addressing the issues, is a very bad situation. I am more concerned about that than anything else you bring up.

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