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Social Security Appeals

Posted by attorney Thomas Begley

Applicants for Social Security benefits can appeal the denial of their initial benefits. Those receiving Social Security benefits can appeal the reduction or termination of their benefits.

Levels of Decision

There are five levels of decision, four of which are appeals. Appealing is almost always worthwhile because many denials are overturned, especially denials of disability claims.

1.First Level of Decision

After an application for benefits, the Social Security Administration (SSA) makes an initial determination of entitlement and amount of payment. (Note that state agencies make determinations of disability or blindness.)

2.Second Level of Decision

If the initial determination is not satisfactory, the second level is the reconsideration determination of the initial claim. Please note that for each level of appeal the time limit is the same: 60 days from the date of written notice, plus 5 days if the notice is received by mail. For this level of appeal, there is an SSA form, SSA-561-U2, entitled Request for Reconsideration. At this stage, the claimant may appoint a representative, review the case file, and provide additional evidence. However, the claimant has no right to appear in person. The same SSA office reviews the file and any new evidence, but a different officer within that office is the reviewer. There is no deadline for the issuance of a decision, but it usually comes in 30 days. There are special rules to allow the continuation of benefits during the appeal, but only if a request for such continuance is made within 10 days of the SSA’s notice. If the appeal ultimately fails, such benefits may have to be paid back.

There are special procedural rules for SSDI and SSI claims. If SSDI benefits are terminated on a finding of lack of disability, the claimant has the right to meet with a disability office of the state’s Disability Determination Service (DDS) for a reconsideration disability hearing. Alternatively, the claimant can demand a meeting with an SS officer by demanding a disability hearing. For initial SSI claims that are denied for lack of disability, the claimant only has a right to a case review. If the initial claim was denied because the claimant did not meet asset or income limits, the claimant has a right to meet with an SSA representative at an informal conference. If ongoing SSI benefits are terminated, reduced, or suspended, SSA must provide prior written notice, and the claimant can request an informal or formal conference.

3.Third Level of Decision

The third level of decision is an administrative hearing through the SSA Office of Disability Adjudication and Review (ODAR), formerly known as the Office of Hearings and Appeals (OHA). All new evidence must be submitted within ten days of filing the request for a hearing, so a practitioner should delay filing until the new evidence is readily available. The claimant can appear personally and can subpoena and cross-examine witnesses. SSA will reimburse some travel expenses, including witnesses.

4.Fourth Level of Decision

The fourth level of review is the Appeals Council, located in Falls Church, VA. The claimant has no right to be present, but may provide new evidence and file a brief. The success rate at this level is poor. The limited grounds for review include Administrative Law Judge’s (ALJ) abuse of discretion, findings unsupported by the evidence, and an issue affecting the public interest. The Appeals Council can send the case back to the ALJ for further action.

5.Fifth Level of Decision

The fifth level of decision is judicial review in the federal district court. The entire file is reviewed, and an attorney is required. The scope of review at this level is limited to whether the Appeals Council’s decision is supported by the evidence and whether proper legal standards were applied. An additional issue at this level is that while the SSA may implement the court’s decision with regard to the particular claimant, the SSA is not required to extend the ruling to other claimants.

Expedited Appeal

An expedited appeal is available when there are no facts in dispute. In such a case, the claimant can go directly to federal court.

Right to Representation

The claimant has a right to representation by an attorney at every stage of decision-making. However, it is important to note that attorneys’ fee are limited by law. An attorney must file a Form SSA-1696 to be appointed as a representative of a Social Security or SSI client and must disclose his or her fee intentions. All Social Security and SSI fee agreements are subject to SSA approval prior to a favorable decision, regardless of whether the payor is the claimant or a third party. The fee cannot exceed 25% of the past due benefits or $5,300, whichever is less, unless the case is taken to court where there is no $5,300 cap. There is no requirement of proof of the work performed. Additionally, a fee agreement can be written to apply to only a part of the administrative appeal process.

Alternatively, attorneys can petition the SSA for approval of fees after the conclusion of an appeal, even if the appeal does not prevail.

Attorneys’ fees can be withheld from past due Social Security and SSI benefits, but are limited to 25% of the awards and subject to a $75 processing fee.

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