How to Appeal a Social Security Disability Denial

The path to monthly checks from Washington is winding and pitted with legal landmines. If you think you can navigate it without a lawyer, think again.

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About Social Security Disability Denial

If you’ve suffered a catastrophic accident, or endured a harrowing diagnosis, you may be eligible for Social Security Disability benefits. Tread carefully. The path to monthly checks from Washington is winding and pitted with legal landmines. If you think you can navigate it without a lawyer, think again.

“The way I look at it,” says Ed Grossman, a Chicago-based Social Security Disability lawyer who’s been winning appeals for clients for 35 years, “it’s a mistake to go it alone.”

Slightly more than two million American workers filed for disability status in 2018, which may sound like a lot, but actually it represents the eighth consecutive year filings fell (from a peak of nearly 3 million applications at the height of the Great Recession in 2010). Nonetheless, SSDI payments to 10 million Americans top $11 billion per month.

A combination of a reviving economy fueling traditional, gig, and work-from-home opportunities, coupled with tough new measures designed to root out fraud — the feds (we are not making this up) want to monitor beneficiaries’ social media posts for signs of non-disabled activity — has encouraged disabled workers to seek jobs. In the summer of 2019, unemployment among the disabled is at a historic low, hovering at 8%.

What has not changed, however, is how tough it is for applicants to get their claims approved. Such a large majority of initial applications is rejected, it’s almost like the Social Security Administration uses the first round to weed out the dodgy, the gamblers, and the unserious.

“The system,” says Grossman, “is not very user-friendly.” Applicants who fly solo trying to save a little money, he says, are asking for rejection and no money whatsoever.

If you’ve already had your application denied, take it seriously, but don’t take it personally. Nationwide, about 67% of first-time disability claims are rejected, so it’s not like they’re picking on you.

Happily, a structured, methodical appeals process exists, and often yields success: Roughly 65 percent of applicants succeed when appealing.

It can take a while — the average is 18 months — and applicants almost certainly need legal counsel or other professional support, but legitimate claims expertly presented and nimbly argued tend, ultimately, to be approved.

Should You Hire a Lawyer for SSDI Appeals?

Let’s return to our source authority.

At 62, Windy City attorney Grossman considers himself an expert in exactly two things: arm wrestling (he’s a world-class over-60 competitor) and winning Social Security Disability appeals.

It’s not a stretch to say the two require a similar skill set: Each involves overpowering an opponent determined to deny your success by outlasting you and wearing you down.

But even Grossman advises against acting hastily.

Having a lawyer for your original filing isn’t necessary. It’s a benefit only if you are interested in getting a head start on your almost inevitable appeal. Your disability attorney will help guide you through what documents to gather and how to make certain your application is complete and accurate.

“Most people are not great historians,” Grossman says. “An attorney will help you assemble the right information and the correct evidence.”

But initiating a claim is not where lawyers earn their keep. “Your chances of succeeding at the first level by hiring an attorney improve only marginally,” Grossman says. “There’s no personal interface. Your application may be filled out more expertly, but he won’t be making a face-to-face argument.”

What Does a Disability Lawyer Do?

If you haven’t retained an attorney from the start, your disability attorney will help get your medical history organized, from diagnosis through course of treatment to prognosis. Your attorney also will make certain your prescription drug regimen is thorough and up to date.

Your attorney will review your work history, your education, your training, and your skill set. He/she will gain a key understanding of how likely it is your background and disability could mesh in the competitive job economy for the purpose of producing what SSA calls “substantial gainful activity,” or SGA. That is, are you able to perform work that would earn at least $1,220 a month ($2,040 for blind people)?

This last is a key component of the argument that draws on a Social Security Disability attorney’s expertise, as we’ll see below.

Left to themselves, disability applications and appeals grind along slowly. Your attorney may be able to increase the speed of your case.

Options for a speedy appeal include:

  • Presenting an argument for Compassionate Allowance. Some conditions are sufficiently severe that individuals cannot endure a lengthy application process. Accordingly, SSA maintains a “Compassionate Allowance List” of conditions that allow benefits to be awarded in mere weeks, instead of months or even years. Sometimes those conditions are missed in the first review; sometimes conditions deteriorate to the point they qualify for CAL.
  • Requesting an on-the-record review of your case. If your medical status is desperate and there’s medical evidence to support it, requesting an OTR can get your case in front of an Administrative Law Judge without the need for a hearing, and your benefits might be granted.
  • Presenting new and compelling medical evidence for review by an Attorney Advisor, SSA lawyers whose primary role is to alleviate ALJ’s caseload. Attorney Advisors have the authority to approve benefits based on fresh, convincing medical facts, where there is gray area in the law, or if there were errors in the processing of your case.
  • Requesting an expedited hearing based on dire need. If you are in financial crisis — you’re facing foreclosure, or eviction; you cannot afford groceries; your utilities are about to be shut off; you’re losing access to medical treatment or prescription drugs — a dire need request can be submitted on your behalf. Your lawyer will include documentation of your financial crisis.
  • Requesting a congressional inquiry. Calls to the office of the ALJ from the local district office of your representative in Washington often get stalled cases to the front of the hearing queue. (Few perks of the office are as satisfying for a member of Congress than rattling stalled bureaucrats.)

Fees for a Social Security Disability Attorney

Attorneys work Social Security Disability cases on a contingency basis. That is, they get paid only if they win, and their fee comes from the backpay they earn for their clients. Except in rare cases, Social Security law limits the size of a lawyer’s payout to $6,000 or 25%, whichever is less.

Win or lose, you also may be obligated to pay your attorney for costs incurred — primarily for mailing and/or copying, generally amounting to less than $200. Some lawyers will ask for a small advance to draw against as the case proceeds, but that is not customary.

This assumes your case does not proceed beyond the ALJ hearing level. Further appeals, which can extend into the federal courts, trigger substantially higher fees, including a $400 filing fee — which can be waived if you’re able to persuade the court you are unable to pay.

As for the attorney’s higher fees, there’s other good news: Under the Equal Access to Justice Act, your attorney’s fees can be picked up by the U.S. government.

Of course, there’s always the IRS to keep in mind. Most recipients of SSA disability benefits lack sufficient income to have to worry about the income tax man. (If they had substantial income, they wouldn’t qualify for disability checks.)

In the rare cases that payments, along with other family income, rise to the level of taxability, attorney’s fees can be deducted, on a pro-rata basis. That is, if only 40% of your benefits are taxable, only an equal portion of the attorney’s fee can be deducted.

Social Security Disability Criteria

The Social Security Administration doesn’t just make up its disability criteria as it goes along. Instead, it compares diagnoses, courses of treatment, and prognoses against its listing of impairments for adults aged 18 and over. Often described as the “blue book,” the list lays out the criteria for disabling conditions.

Criteria for Social Security Disability Conditions:

  • Musculoskeletal, including: loss of function as a result of a major dysfunction of joints; disorders of the spine; amputation; reconstructive surgery of a major weight-bearing joint; certain fractures; burns.
  • Cardiovascular system, including: chronic heart failure; recurrent arrhythmias; symptomatic congenital heart disease; heart transplant; ischemic heart disease; aneurysm of aorta or major branches; peripheral arterial disease.
  • Neurological, including: epilepsy; benign brain tumors; cerebral palsy; multiple sclerosis; post-polio syndrome; amyotrophic lateral sclerosis (Lou Gehrig’s Disease, or ALS); Parkinsonian syndrome; traumatic brain injury.
  • Mental disorders, including: neurocognitive disorders; schizophrenia and similar psychotic disorders; depressive, bipolar, and related disorders; personality and impulse-control disorders; autism spectrum disorders; eating disorders; trauma- and stressor-related disorders.

In all, SSA tracks 14 varieties of disorders that can sideline workers for a year or more. Length of time is a key decider of whether a claimant will be eligible for SSDI.

Some conditions — a broken wrist, pneumonia, a torn Achilles tendon, depression — though serious, are, with proper treatment,  relatively temporary. For these, short-term disability and, oftentimes, major medical coverage through your employer will have to see you through.

It’s only if you’re going to be unable to work — or perform “substantial gainful activity” — for at least 12 months that SSDI becomes available. That much time requires a seriously debilitating condition. And convincing a judge isn’t always easy.

“Cases,” says attorney Grossman, “turn on medical documentation more than anything else. You have go get that right.”

Social Security Disability Appeal Time Frame

Among the key mistakes go-it-alone claimants make is resubmitting their applications after they’ve been denied at the initial review stage. OK, appeals take substantially longer than originating an application, but you’re still running up against odds that are at least two-to-one, where more than half those who appeal wind up getting SSDI benefits.

Better to get the appeals process rolling, even if it winds up taking a full two years. If — when — you finally prevail, you’re most likely going to receive a lump sum dating to when you began the process.

We mentioned two years. Some cases do drag on that long, and longer. But in Grossman’s experience, the average time to get to a hearing and — with the right counsel — win your appeal is about 18 months.

“It’s discouraging to get turned down,” Grossman says, “but that’s only the beginning.”

But you have to get busy. Social Security gives you 60 days from the date you receive the agency’s decision to present your request for an appeal in writing.

SSDI Appeals Process

Some of the hurry-up methods mentioned above notwithstanding, there are essentially four steps to the SSA’s disability appeals process: Reconsideration, Hearing, Appeals Council, Federal Court.

Request for Reconsideration

To get your appeal rolling, you first must ask your application to be reconsidered. As it did before, your application will be reviewed at the Disability Determination Services, or DDS, level, but by a medical consultant and examiner who were not part of the original decision.

You can deliver exactly the same information you did to initiate your claim and hope the new team spots an error by their colleagues, or you can repackage your claim and add fresh information. Here is where an attorney can begin to be of service, helping you identify useful information, or supporting documentation you previously missed.

Don’t get your hopes up. Nationwide, no more than 10% of Reconsideration appeals result in approval.

Hearing Before an Administrative Law Judge

Here, if you have the determination to continue, is where things get interesting and the playing field begins to level out. It’s also here, where actual human beings go eyeball-to-eyeball, that professional counsel becomes pivotal.

“There are several ways to win at a hearing,” Grossman says, “but you need someone who is an expert at making the right arguments. You also need someone who knows how to cross-examine an expert witness.”

Typically, the ALJ will hear from a medical expert and a vocational expert, both of whom will be charged with presenting arguments about just how disabled and employable the claimant is.

“If they make the case that my client is disabled, I keep my mouth shut,” Grossman says. Usually, however, the attorney has to pierce the veneer of the experts’ presentations, drilling down to practical matters that reveal his client’s disability.

An applicant may be theoretically employable, but needs to miss work regularly for treatment or rehabilitation. Who’s going to hire someone who has to leave every Wednesday at noon and every other Friday morning?

Maybe the client is reasonably mobile, but can’t lift anything. Or the client seems physically capable, but, because of PTSD, is unable to manage stress.

“There are lots of things that can make a person unable to sustain competitive employment in the USA,” Grossman says. A capable lawyer will know how, through exhibits and revealing cross examination, to make that argument.

It’s also important for the attorney to keep the client’s particular circumstances in front of the judge. Given precisely the same diagnosis, course of treatment, and prognosis, a 56-year-old factory floor worker with a high school education and a limited skill set is far more likely to qualify as disabled than a 33-year-old with a masters degree in computer programing.

Overall, about half the claimants who get their appeal in front of an ALJ win their appeal and begin collecting disability benefits.

Appeals Council

If you’re one of the 50% rejected by an ALJ, your claim still has life: You can ask the Appeals Council to give your case a fresh look.

Appeals Councils have the authority to accept whichever appeals they choose.

Your case can be dismissed without consideration unless it finds one of these:

  • An abuse of discretion. Perhaps your hearing was cut short. Or the ALJ committed an error of law.
  • The ALJ’s decision cut against the preponderance of evidence.
  • Your case raised a broad policy or procedural issue (such as the ALJ allowing a surprise witness).

In truth, this is a shot in the dark. Appeals Councils reverse ALJs only about 3% of the time. The best reason to try is when you and your counsel already have determined you’re going to take your appeal to federal district court, and you want to show you’ve exhausted every administrative opportunity.

Federal District Court Appeal

Your last option is attempting to get your case in front of a federal district court judge, but the process can be expensive and time-consuming. (Yes, as mentioned above, your legal fees might be footed by Washington, but because of the time and effort involved, your lawyer is going to have to be as committed to the appeal as you are.)

You’ll be looking for errors in the ALJ’s conduct of your hearing, or errors in judgment. Few ALJ’s decisions get reversed outright, but district court judges remand, or send back for reconsideration, roughly half the disability cases they hear.

“You’re a lot less likely to succeed in federal court,” Grossman says. “Most of the time you’re barking up the wrong tree.”

It’s useful then, too, to have an expert — an experienced warrior such as Grossman — willing to tell you the hard truth.

About The Author

Max Fay

Max Fay is an entrepreneurial Millennial whose thoughtful writing shows he has a keen eye on both. Max has a genetic predisposition to being tight with his money and free with financial advice. At 25, he not only knows what an “emergency fund” is, he already has one. He wrote high school and college sports for every major newspaper in Florida while working his way through Florida State University. That experience was motivation to find another way to succeed financially and he has at Debt.org. Max can be reached at mfay@debt.org.

Sources:

  1. Editorial Board, Wall Street Journal (2019, April 28) The Falling Disability Rolls. Retrieved from: https://www.wsj.com/articles/the-falling-disability-rolls-11556485240
  2. Schwartz, N.D. (2018, June 19) Disability Applications Plunge as the Economy Strengthens. Retrieved from: https://www.nytimes.com/2018/06/19/business/economy/social-security-applications.html
  3. Romig, K. (2018, June 21) Social Security Disability Insurance Shrinking Even Faster Than Expected. Retrieved from: https://www.cbpp.org/blog/social-security-disability-insurance-shrinking-even-faster-than-expected
  4. Pear, R. (2019, March 10) On Disability and on Facebook? Uncle Sam Wants to Watch What You Post. Retrieved from: https://www.nytimes.com/2019/03/10/us/politics/social-security-disability-trump-facebook.html
  5. NA (ND) Disability Evaluation Under Social Security. Retrieved from: https://www.ssa.gov/disability/professionals/bluebook/AdultListings.htm
  6. NA (ND) The Appeals Process. Retrieved from: https://www.ssa.gov/pubs/EN-05-10041.pdf