How to Handle a Denial From a Judge

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Before You Read Me: Don’t Read Me

This article is for people who were recently denied at a hearing appeal. That means, they already had a hearing and met a judge. If you did not have a hearing yet, don’t read this article or it will make your head explode for no reason. Instead, read this article about when to appeal a disability case or read this article on a typical timeline for a disability case.


Appeals Council vs. New Application

If your appeal hearing was not successful, please do not give up hope. There have been plenty of people here who were in this situation and went on to get approved. You have two options for next step:

Option One: You can request a new hearing with an Appeals Council

Option Two: You can start a new application

This is (obviously) quite an important decision. There are a lot of little intricate pieces you may want to mull over while making this decision. There is no wrong or right way to do it. I have seen people go both directions and win their cases both ways.

My online browsing uncovered that I cannot find one single article on the entire internet that lists all the factors involved in this decision. I am attempting to put together a list. Input, updates, and suggestions for changes are welcome! Thank you to aqn587 for brilliant research and information.


Success Rate

Appeals Council – Approximately 2% are approved. 22% are remanded. The rest are denied.

New applications – Approximately 33% are approved. The rest are denied.


Timeframe

Appeals Council – Decision in approximately 12 months.

New Application – Decision in approximately 3-6 months


What Happens If You Are Not Approved

Appeals council

  • The appeals council may decide to remand your case (22% chance this will happen). This will be another hearing with your same judge, but this time the judge will have to consider special instructions from the appeals council. The appeals council will tell the judge what they think was done wrong and ask the judge to address these points. Remand hearings are faster than regular hearings. They take approximately 10 months (Plus the 12 months for the appeals council. So, 22 months total).
  • Or the appeals council may decide to deny your case (76% chance this will happen). In this case, you will have the option to appeal again to federal court. You will be required to have a lawyer. Please look online to learn more about federal court.

New Application

  • This is the same as what you did last time. You can request an appeal and go to an appeal hearing. It will be the same kind of hearing, but you will get a new judge and they will be looking at your new medical records. In some states, you can also request reconsideration before the hearing. Wait times for hearings varies by state. Your wait time will probably be similar to what you experienced last time.

Medical Records

Appeals Council – In most cases, they will be looking at your PAST medical records. If your records are already excellent, then you may wish to continue on to appeals council. Also, if you do not have the money, health insurance, or ability to create new good medical records, then you may wish to continue on with your current application. In some cases, they may consider new records but only if they relate to the period of time before the judge’s denial.

New Application – In most cases, they will only be looking at your FUTURE medical records. If your past records are not strong or have some problems, you may wish to start fresh with a new application. If you have health insurance and a supportive doctor right now, that will certainly help.


Strength of Application

Appeals Council – In most cases, they will only be looking at your PAST file. If you are happy with everything in your file, and you feel your application is strong, then you may want to continue forward using this application.

New Application – In most cases, they will only be looking at your FUTURE records, forms and materials you submit.  I have met several people who were denied at a hearing, but then got approved with a new application. This is often because they knew a great deal more then when they first applied and they took their application much more seriously and did a much better job with their new application.


Backpay

Appeals Council – In most cases, you will keep some or all of your backpay. If the decision is fully favorable, you will keep all of it. If the decision is partially favorable, you will keep some of it. There is no way to know how much until the decision is made.

New Application – In most cases, you will lose all your backpay. You will be able to get backpay from this moment forward, but in most cases any backpay accrued up to this point will be lost.


Judges Approval Rating

Appeals Council – You will probably get the same judge! If you go this route, there is a good chance you will eventually be sent back for another hearing with a judge. You will get the same judge you had at your last hearing! This is not always true – sometimes a judge dies, retires or moves – but it is usually true.

New Application – You will probably get a new judge! If you continue to appeal and wind up getting a new hearing, you will be randomly assigned a judge in your area, or you may be given the option for a video conference with a judge in another area.

You may wish to consider how your judge compares to other judges in your area. Would you prefer the same judge or a new one? List of approvals and denials from judges:

2016: https://www.ssa.gov/appeals/DataSets/03_ALJ_Disposition_Data.html

past years: https://www.ssa.gov/appeals/DataSets/archive/archive_data_reports.html


Lawyer

Appeals Council – Yes, you need a lawyer if at all possible. It is difficult to get a successful outcome at an appeals council without a lawyer. If your lawyer wants to continue with your case and take it to appeals council, it is worth considering trying this route. If your lawyer does not wish to continue, you can inquire about finding a new lawyer. However, many lawyers will not take on an appeals council cases.

New Application – No, you do not need a lawyer. This is good because you probably won’t be able to find a lawyer to take your case right now. If your hearing was recent, there is no way for a lawyer to make money right now. However, I can tell you from personal experience, you absolutely do not need a lawyer to be successful with a new application. If you are able to put in a little thought, time and energy, you can do more to help yourself than a lawyer can do to help you at this stage anyway. If you continue on to appeal, you should be able to get a lawyer later on.


How to Get Approved

Appeals Council – In most cases, the appeals council does not consider if you are sick or disabled or unable to work. The council cares the most about ONE THING: Did the judge make any policy or procedure mistakes in your case? The best approach is to look through all the documentation and come up with one or more specific mistakes the judge made and write down what the mistake was and which policy they did not follow correctly. Now you can see why I said you probably need a lawyer to help you here J  Here is an excellent article on common mistakes a judge can make. If you can prove that your judge made one of more of these mistakes, you may have a good case for appeals council.

New Application – They are deciding if you are disabled and unable to work or unable to work full time. The look at a number of factors, but ONE THING they care about the most: Do your medical records prove that you are disabled? They will also consider other evidence you send them.


Deadline

Appeals Council – You have 60 days to file your request for appeal

New Application – No Deadline. You can apply any time, but you may want to consider your Date Last Insured. (see below)


The Missing Records Loophole

If any of your medical records were missing from your file, you are in luck. This is GOOD.

If you decide to go to appeals council it is good. And if you decide to start a new application it is good. It is good no matter what you do.

Here’s the trick: You must discover the missing records. Then you will need to get copies of those files and send them in. Then (this is the really important part) you want to clearly mark these records as missing and submit a written statement to SSA that these records were missing from your disability file during the hearing.

If you are working with a lawyer, your lawyer may be able to help you with this… just keep in mind that this is the same lawyer who allowed your case to go forward with missing records last time. Confirming everything yourself is always a good plan.

There are all kinds of reasons why records go missing and it happens a lot. They can be lost at your doctor’s office, your lawyer’s office, or the SSA office. They can be eaten by a fax machine or put in someone else’s file. Or someone else’s records can be put in your file. Or the record can be there, but just the last few pages are missing and no one noticed. Or the judge’s file clerk could receive the records but never add them to your file. I have seen every one of these things happen in people’s cases.

You can start by making a list of every test, exam, and procedure you have had. Every emergency room visit, every blood test, every exam. Also list your RFC form and any other forms you’ve collected from your doctor. Please make sure to include dates.

Then you can contact SSA and request a copy of your case file. It is a good idea to check it very carefully. Sometimes half of a record or report will be there, but the second half will be missing. Sometimes they will have old records from your doctor, but not the records from the past few months. Sometimes they will have records from a hospital but one of your tests or procedures will be left out.

Please make sure absolutely everything is there, and if anything is missing, that is good. You can collect it and submit it now. For appeals council, they will likely consider these records and it will increase your chances of a remand or approval. For new applications, you may get lucky and get your old case reopened (means a lot more backpay).


Figure Out If You are Applying for SSI or SSDI

SSI and SSDI are two different programs. Just to confuse you, they sound the same and you apply for them the exact same way!

If you don’t know what you are applying for, you really want to find out or this next section won’t make sense.

You may be able to find out by asking your lawyer, or calling Social Security and seeing if they can tell you which program you are eligible for.  You can also learn more about the difference here.


Figure Out Your Date Last Insured

Now that you know what you are applying for, there is one last important thing to check. It is called your “Date Last Insured.”

If You Are Applying for SSI – Goods News! You do not have to worry about this AT ALL. You can relax and ignore the rest of this page.

If You Are Applying for SSDI – Social Security has a special policy called “Date Last Insured”. It is a deadline for applying for SSDI. The date is based on how much you worked, how long you worked, and how much time has passed. Your Date Last Insured can expire. If this happens, you may hear the words “Your Date Last Insured has expired” or “Your work credits have expired.” If you don’t know your Date Last Insured, you can call Social Security and ask or you may be able to log into at your online social security account and figure out what is your “Date Last Insured”.


Now That You Know Your Date Last Insured

If Your Date Last Insured Is Far in the Future

You are safe. You are free to start a new application, or you are free to go to Appeals Council. No problems either way.

If Your Date Last Insured Is Coming Up In the Next Year or Two

Your Date Last Insured may expire while you are waiting for the Appeals Council process. Once this happens, you may lose the option of starting a new application. Keep an eye on your Date Last Insured and make sure to make a good decision for yourself before it passes.

If Your Date Last Insured Has Already Past

Your Date Last Insured has expired. You have a few options:

  1.  Option One: Do not start a new application. Request an appeal instead. You have a 60 day deadline to make the request. It does not matter if your date has expired, as long as you continue appealing your case.
  2.  Option two: Start a new application, but forget about SSDI. Apply for SSI instead. You can only do this if you are poor. If you are married, your spouse must also be poor. If you are approved, your monthly check will probably be lower than it would have been on SSDI.
  3. Option three: This is a bit of a long shot: Start a new application. Then get denied. Then go to an appeal hearing. Then convince the judge to reopen your old case from before your Date Last Insured expired. I have only met one person who has done this.

Bottom Line

Some people have no choice. They MUST go to appeals council, because they cannot file a new application.

From what I have seen, this most often happens to people that are married. If your spouse works and makes too much income, then you cannot apply for SSI. If your date last insured has expired, then you cannot apply for SSDI either. Unless you get divorced or live separately, you can’t apply for anything!

If appeal is your only option, please make sure not to miss the deadline for returning your appeal form.

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