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 How to Get Ready for Your Disability Hearing 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. We have seen people go both directions and win their cases both ways.
Our online browsing uncovered that we cannot find one single article on the entire internet that lists all the factors involved in this decision. We are attempting to put together a list. Input, updates, and suggestions for changes are welcome!
- Approximately 2% are approved.
- 22% are remanded (sent back for another hearing with special instructions).
- The rest are denied.
- Approximately 33% are approved.
- The rest are denied.
- Decision in approximately 12 months.
- Decision in approximately 3-6 months
What Happens If You Are Denied
- 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.
- Of course, at any time you will also have the option to give up appealing and start a new application. Please see notes below about Date Last Insured – in some situations starting a new application won’t be possible.
- This is the same as what you did last time. If you are not approved, you can request an appeal and go to an appeal hearing.
- Some states have an extra step before the hearing. It is called “reconsideration.” So, it is possible your case will get approved a that point.
- You new hearing will be the same kind of hearing as last time, but you will get a new judge and they will be looking at your new medical records.
- Wait times for hearings varies by state. Your wait time will probably be similar to what you experienced last time.
Check Your Date Last Insured
Before reading a lot more, you may wish to check your Date Last Insured. If your Date Last Insured is in the past, you are probably want to continue appealing, if at all possible. More information on this topic is at the bottom of this page.
- In most cases, they will be looking at your PAST medical records. These are any records that were created before your hearing date.
- 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 instead of starting from scratch.
- In some cases, they may consider new records but only if they relate to the period of time before the judge’s denial.
- So, if you ask your doctor to write a letter or complete a new form for you, make sure to request that they specifically note what time period this pertains to. If your case is remanded back to a judge, then the judge can consider both old and new records.
- In most cases, they will primarily be looking at your CURRENT and FUTURE medical records. These are any records created after your hearing date.
- They may also be willing to look at previous records (particularly if you collect and submit them yourself), but the current and future records are most significant to the decision.
- 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
- 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.
- As mentioned above, if you have new evidence to submit (for example, if some records were missing from your file), they will consider new materials if they pertain to the time period before the hearing.
- In most cases, they will be looking at your FUTURE records, forms and materials you submit.
- We 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 preparing the new application.
- Here are a bunch of steps you can take before submitting a new application that can make a big difference.
“If I Appeal, Can I Send Any New Information?”
The Appeals Council will generally be considering your previous records (anything already submitted before your hearing). There are a few exceptions:
- For the appeals council, you are also able to submit documents that pertain to the time period from before the hearing.
- If you discover that any or your previous medical records were missing at your original hearing, you can submit those now.
- If there is any unresolved issue and you want your doctor to write a letter about it (about the past), you can submit that now as well.
- If the appeals council decides to remand your case (send it back for a new hearing) then this rule no longer applies. Before your new hearing, you can submit all new medical records, RFC forms, letters, etc, from any time period.
- 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.
- 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.
If You Get LTD
- This works a bit differently if have been getting Long Term Disability (disability through your employer)
- All or most of your backpay will go to the LTD company no matter what. In this situation, continuing to appeal is not that exciting, since the money is not yours anyway.
Judges Approval Rating
- 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.
- Unless you are terribly unlucky…. 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.
Food For Thought
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:
- Yes, you would like a lawyer if possible. A lawyer can write a brief to the appeals council explaining any mistakes the judge made.
- 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.
- No, you do not need a lawyer.
- This is good because you may not 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, as you can tell from many of the stories on this site, 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.
- Here’s a few happy stories who got approved quickly without using lawyers: How I Got Approved for Disability QUICKLY.
- If your previous lawyer feels bad that you lost, she may decide to be your lawyer again for the new application. This is fine, but you still need to DO AS MUCH AS YOU POSSIBLY CAN YOURSELF. This is the best way to increase your chases of winning a new application.
How to Get Approved
- 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 you probably need a lawyer to help you here.
- 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.
- You can also contact Social Security and request your case file on CD, including a transcript from the hearing
- 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?
- There are a bunch of things you can do to help this decision:
- You have 60 days to file your request for appeal
- No Deadline. You can apply any time, but you may want to consider your Date Last Insured. (see below)
It’s a good idea to request your case file, including all medical records and documents related to your hearing. You can also request an audio transcript of the hearing.
You may be able to get this through your lawyer. Important: you don’t want copies of the medical records your lawyer has, you want copies of your Social Security file. Just because your lawyer has something, does not guarantee it is in your file.
You can also request your file from the judge’s office (ODAR). You can also try your local Social Security office. You can make the request over the phone to have it mailed to you.
If you discover that any important medical records are missing, you may wish to collect those records yourself now. You can submit them to Social Security along with a note that these records were missing from your file when the decision was made.
Figure Out the Difference Between SSI and SSDI
Now, as promised, here is the information on Date Last Insured and why it may be important to your decision. In order to understand why this matters, you will want to know a little about SSI and 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!
It is helpful to find out if you were applying for SSI or SSDI. If you were applying for both, but your SSDI was going to be more than $735 per month, you can consider that you were just applying for SSDI, since you would receive little or no SSI on an ongoing basis.
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.
Or you can learn more about: What Will I Qualify for? SSI? SSDI? Both? Neither?
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 – Yes! You want to know: How to Check 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 it may be more difficult to start 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:
- 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 and your medical records prove you were disabled before the Date passed.
- 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. SSI is not as good as SSDI because, if you are approved, your monthly check will probably be lower than it would have been on SSDI. Plus, SSI has a lot more financial rules and restrictions than SSDI so it is more difficult to live on.
- 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. While not impossible, we don’t know how likely this is to actually happen.
Some people have no choice. They MUST go to appeals council, because they cannot file a new application.
From what we 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 appeals council is your only option, please make sure not to miss the deadline for returning your appeal form.