Should you receive an Unfavorable Decision from the ALJ, the next step in the review process os to file an appeal to the Appeals Council. Outline of Process
What to Do
Should you receive an Unfavorable Decision from the ALJ, the next step in the review process os to file an appeal to the Appeals Council. This is not a court, but rather a divi-sion of Social Security located in Falls Church, Va. All materials are submitted on paper and reviewed. No appearance is required or even provided for.
Generally, you have 60 days after you receive the notice of our decision to ask for any type of appeal In counting the 60 days, we assume that you receive the notice five days after we mail it unless you can show that you received it later. If you do not appeal on time, the Appeals Council may dismiss your appeal. This means that you may not be eligible for the next step in the appeal process and that you may also lose your right to any further review. You must have a good reason if you wait more than 60 days to request an appeal. If you file an appeal after the deadline, you must explain the reason you are late and ask us to extend the time limit. The people in the Social Security office can explain further and help you file a written request to extend the time limit. The Appeals Council will consider your request and decide whether to extend the time limit.
Standard of Review
The Appeals Council looks at all requests for review, but it may deny a request if it be-lieves the hearing decision was correct. If the Appeals Council decides to review your case, it will either decide your case itself or return it to an administrative law judge for further review. When the Appeals Council reviews your case it may consider any of the issues considered by the administrative law judge, including those issues that were favorably decided in your case. You will receive a copy of the Appeals Council's final action on your case.
The Appeals Council will review the ALJ's decision along with your entire case file, and any additional evidence that you submit. The Council will look to see if the ALJ committed any legal or procedural errors and whether all of the evidence was properly considered.
The basis and standards of review will focus on if: (1) There appears to be an abuse of discretion by the administrative law judge; (2) There is an error of law; (3) The action, findings or conclusions of the administrative law judge are not supported by substantial evidence; or (4) There is a broad policy or procedural issue that may affect the general public interest. It's important to understand that "substantial evidence" does not mean necessarily the preponderance of the evidence. Only that there is a reasonable basis for the conclusion
Upon review, the Appeals Council can perform one of three options:
* deny the Request for Review (take no action on your case). If this happens, then you will have 60 days to file an appeal in federal district court.
* remand the case to the ALJ (return the case back to the ALJ for a new decision). This will usually mean you will have another hearing with the ALJ, or
* issue a new decision and award disability benefits on your case.
It usually takes a long period of time for the Appeals Council to evaluate your case. The most recent figures show that the average review time was almost one year, or 345 days.
There are two areas that generally are non starters. Credibility. Social Security regula-tions state that the ALJ is entitled to a lot of leeway in evaluating the credibility of the claimant and any witnesses. Thus, the Appeals Council is virtually guaranteed to ignore arguments that the ALJ incorrectly assessed someone's credibility. However, if the ALJ doesn't find certain testimony or evidence credible, he or she still must provide specific reasons for this, and failure to do so may be "reversible error."
Minor mistakes. Disability claimants sometimes devote too much attention to pointing out relatively minor errors and trivial arguments that, even if accepted, wouldn't affect the outcome of the case. Better to focus your attention on the two or three most critical mistakes and ignore the rest.
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