Social Security and SSI Hearings and Appeals
Authored By: Legal Aid Society: Brooklyn Neighborhood Office
Your Right to Question the Decision that the Social Security Administration makes on your Claim for Benefits
Most people who apply for disability benefits are denied the first time. Many of these people eventually win their cases on appeal. For this reason, it is very important to appeal a denial of your claim instead of simply filing a new application.
The appeal steps are:
- Appeals Council
- Federal District Court review
None of these steps can be skipped, and each step must be taken in order. Details about each appeal step are given below.
Requesting a hearing
If your claim for disability benefits is denied, you have 60 days from the date of the decision to request a hearing before an Administrative Law Judge. Your request for a hearing must be in writing. Any Social Security office can help you fill out the special hearing request form, or you can write the Social Security Administration a letter.
If you do not file your request on time, your appeal may be dismissed. This means that you may not be eligible for the next step in the appeal process.
If you are late in filing for a hearing
If you do not receive the notice that your claim is denied until more than 60 days after the date of the decision, you should go to your local office as soon as you learn about the decision and tell them that this is why your appeal is late. You should also tell them why you want to appeal. Your Social Security office can help you file a written request to extend your time to file an appeal.
What happens after you file a request for a hearing?
After you request a hearing, your local Social Security office sends your file to an Administrative Law Judge at the Office of Disability Adjudication and Review (ODAR). There is an ODAR in each borough in NYC.
How long will it take for my hearing to be scheduled?
Currently, it can take as long as a year, or more, from the date you ask for a hearing, until you get your hearing scheduled, so you will need to be patient! Social Security will send you a letter acknowledging your request for a hearing. Some time after this, and at least 20 days before the hearing is scheduled, an Administrative Law Judge will send you a notice telling you the date, time and place of the hearing.
It is a good idea to check in with the Office of Disability Adjudication and Review every couple of months while you are waiting for your hearing to make sure that it has not been scheduled yet. You can find out from you local Social Security office which ODAR has your file.
What will the hearing notice tell me?
The hearing notice will tell you the place, date and time of the hearing. You should make every effort to come to the hearing as scheduled.
If you need to change the date or time of the hearing:
Every effort should be made to come to the hearing as scheduled. However, if you have a very good reason for not being able to attend a scheduled hearing, contact the ALJ as soon as possible before the hearing and tell him or her why you cannot attend. The ALJ may reschedule the hearing for another day if you give a good reason. If you do not go to your hearing and the ALJ decides that you did not have a good reason for not going, your hearing request may be dismissed and you may lose the chance to appeal further.
Very good reasons for needing a different hearing date might include: being hospitalized or just having gotten out of the hospital; the death or serious illness of a very close family member; your representative is unable to appear on the scheduled date; you are still trying to find a representative.
What happens at a hearing?
A hearing is the only chance you have to speak directly to the person who is making a decision on your claim for disability benefits. It is therefore very important that you attend your hearing.
The hearing is presided over by an Administrative Law Judge or "ALJ". The ALJ who is assigned to your case looks into the issues, receives documents, and listens to what you and any witnesses have to say. The ALJ will allow you or your representative to ask witnesses questions and explain why you should get benefits. If the ALJ needs more information, he or she may arrange for you to be examined by a Social Security Administration doctor, may obtain additional information from your doctors, and may subpoena records that are otherwise not available.
If you need an interpreter
If you do not speak English, you can request that an interpreter be present at your hearing. You should make the request for an interpreter when you first file your request for a hearing, and you should also check to see if your hearing notice states that an interpreter will be present. If it does not, you should call the ALJ's office and tell them you need an interpreter and the particular language the interpreter has to speak.
If you want to be represented at your hearing
You may want a lawyer, friend, or other person to represent you. Your Social Security office can help you if you have trouble finding a representative or if you cannot afford one, or go to http://www.lawhelpny.org to find free legal services providers in your area. If you have a representative, you may have to pay him or her a fee. For more information about representation and about the fees a representative may charge, ask your Social Security office for the booklet, Social Security and Your Right to Representation or call 1-800-772-1213 or print the pamphlet off the internet for free at www.ssa.gov/pubs/10075.html.
What happens after the hearing?
After the hearing, the ALJ will mail you and your representative a written decision. The decision will explain why the ALJ ruled in whatever way he or she did. If the ALJ approves your claim, the decision will say so; if you are denied, the ALJ will explain why you lost.
The decision will include an explanation of your right to appeal the decision if you are not satisfied with it. To appeal, you must file a "Request for Review of an ALJ decision"with the Appeals Council. See below for details.
Appeals Council Review
You may request the Appeals Council to review your claim if you disagree with the Administrative Law Judge's decision. Your request for review must be in writing, and filed within 60 days of the date of the decision. Any Social Security office can help you fill out the special form to request Appeals Council review. Or you may write directly to the Appeals Council.
Things to know about Appeals Council review:
First, The Appeals Council is located in Falls Church, Virginia. Communication with the Appeals Council will be by letter. Letters to the Appeals Council should be sent by certified mail "return receipt requested." This will help you to prove that you appealed on time.
Second, keep a copy of any letter or document you send to the Appeals Council. If you don't keep a copy and Social Security loses the copy you sent in, you are the loser.
Third, if you had a representative at your hearing, your representative can file your appeal to the Appeals Council. However, you should discuss this with your representative; don't assume they will automatically do it for you.
Time limit for filing for Appeals Council review
As with all appeals, you have 60 days (plus 5 days for mailing) to file your appeal. If you do not appeal on time, the Appeals Council may dismiss your appeal. This also means that you may not be able to file a further appeal in federal court.
If you file an appeal after the deadline, you must explain why you are late and request that the Appeals Council give you more time. Your Social Security office can help you file a written request for more time. You must have a very good reason for filing late.
What can the Appeals Council do?
The Appeals Council might be described as the Supreme Court of the Social Security Administration. The Appeals Council considers the evidence that was before the Administrative Law Judge and any additional evidence you send it.
The Appeals Council will send you a written decision. If you are not satisfied with the decision, you may file a lawsuit in federal court. Any lawsuit must be filed within 65 days of the Appeals Council's decision.
The Appeals Council on its own sometimes reviews Administrative Law Judge decisions granting benefits. If the Appeals Council decides to review your claim on its own, it will notify you and let you reply.
The Appeals Council can either:
- refuse to review the Administrative Law Judge's decision,
- review the Administrative Law Judge's decision and reverse it and grant you benefits, or
- return your claim to an Administrative Law Judge to hold another hearing and issue a new decision.
How long will it take the Appeals Council to act on my claim?
Unfortunately, it can take a very long time for the Appeals Council to rule on a claim. Currently, it is often taking 2 years or more. During most of this time you will hear nothing about your pending appeal.
What if my condition gets worse while I am waiting?
If your condition gets worse while you wait for the Appeals Council review, you can file another claim. You can always do this with an SSI claim. However, a claim for Social Security disability will only be allowed if your period of disability coverage did not expired before the ALJ decision was made.
Federal District Court Review
You may appeal to federal court if you disagree with the Appeals Council's decision, or if it denies your request to review the Administrative Law Judge's decision. Your lawsuit must be filed within 65 days of the Appeals Council's decision.
You do not need an attorney to file the court appeal. There is a special court office called the Pro Se Clerk's office which will help you start the lawsuit. Make sure you do not miss the deadline just because you do not have lawyer.
Your Right to Question the Decision of the Social Security Administration to Reduce or Discontinue your Disability Benefits
If you are already receiving disability benefits and Social Security decides to reduce or stop your benefits, you have the right to appeal this decision also.
This may happen if Social Security decides that it paid you too much money in the past, for example, because you received income that you did not report to Social Security. If this happens, Social Security may send you a Notice of Change of Benefits that states that your benefits will be reduced or discontinued altogether. They may also send you a separate Notice of Overpayment.
The process for appealing a decision to change the amount of your benefits is the same as that described above, except for two very important differences.
- If you want your current benefits to remain the same while you are appealing Social Security's decision, you must file your appeal within ten days of the date on the notice.
Although you still have 60 plus 5 days to appeal Social Security's decision, Social Security may go ahead and reduce or stop your payments during the appeal process unless you file your appeal within 10 days of the date you receive notice of their decision.
- You must request a Reconsideration of the decision before you request a hearing.
The "Reconsideration Request" is an extra step that you must go through when you are appealing Social Security's decision to reduce or stop your benefits. Making this request is exactly the same as requesting a hearing. You should just take the notice of the decision you disagree with into your local Social Security Office and tell them that you want to appeal it. They will give you the correct form to fill out.
A person who did not make the first decision will decide your claim again. If you disagree with this decision, then you must file a second appeal within 60 days in order to get a hearing before an Administrative Law Judge.