The hearing before an Administrative Law Judge (“ALJ”) in a Texas social security disability case is usually the most important event in the course of seeking social security disability benefits. Unlike the prior rejections at the initial and reconsideration stages by the Disability Determinations Services for the state of Texas, the Department of Assistive and Rehabilitative Services (“DARS”), the administrative hearing before an ALJ is the first opportunity for a Texas disability claimant to meet face-to-face with the disability decision maker. Statistically the ALJ hearing represents the best chances for a disability claim approval.

Most administrative law judges do not announce their decision at the hearing, so opening that ALJ decision in the mail weeks later is indeed an important “moment of truth”. ALJ decisions come in three “flavors” based upon the language in bold at the top center of the first page of the decision:

  1. Notice of Decision-Fully Favorable
  2. Notice of Decision-Unfavorable
  3. Notice of Decision-Partially Favorable

A partially favorable decision simply means the judge has not found you disabled for all of the period of time you alleged. Number #2, of course, is the heart-breaker. So what do you do if that decision says “Unfavorable”?

As the ALJ decision will set out on the first page, you have the right to appeal the denial and ask the “Appeals Council” to review the decision. There are several very important facts you need to know about requesting Appeals Council review of an unfavorable ALJ decision.

The Appeals Council will not hold another hearing; rather, it will limit the inquiry to whether the ALJ made legal errors in how she analyzed the facts and medical evidence and provided clear support for the denial. Claimants need to understand this is different than the issue of whether they are in fact disabled. In other words, the Appeals Council will not determine whether the ALJ was right or wrong, but consider only whether the ALJ followed the rules and regulations in coming to the disability determination.

In considering whether to seek Appeals Council review, a claimant must weigh the inordinate delays at the Appeals Council: it generally takes 8 to 10 months for the Appeals Council to make a decision. There are only 3 possible decisions to be expected from the Appeals Council on an initial request for review of an ALJ decision:

  1. Decline Review. This is simply a decision by the Appeals Council that the ALJ committed no legal error, and the decision of the judge stands. Statistically, this is the decision by the Appeals Council in the majority of cases.
  2. Reverse the ALJ decision and rule in favor of the Claimant. This is unfortunately quite rare. This is complete victory: the social security administration rules in your favor. In handling only social security disability cases in North Texas for the last 23 years, I have only seen only two or three reversals and award decisions from the Appeals Council.
  3. Reverse and Remand the case to the ALJ for another hearing. Since an Appeals Council issuance of a fully favorable decision is rare, this is usually what an experienced social security disability attorney considers a victory. The case is being sent back to the ALJ for a new hearing. But claimants are often troubled to know that the case will be sent back to the very same ALJ.

Remand to the same judge does not, however, guarantee the same unfavorable result. Most ALJs are motivated by a strong sense of fairness, and will not be angered by their decision being reversed or seek to “get even” with the claimant and her lawyer. In my experience, a winning strategy on remand is to seek and secure new evidence. This allows the ALJ a kind of “face saving” path to approval, in essence allowing the ALJ to reverse a denial, rationalizing that had that evidence been present the first go around the judge would have paid the claim.

There are, however, a very small minority of ALJs who seem committed to denying claims. An experienced local Texas social security disability attorney can greatly help the claimant in determining whether a trip back to the same judge will be an exercise in futility.

So if you receive an unfavorable ALJ decision, what are your options and what factors should I consider? You have three options:

  1. File a request for Appeals Council review;
  2. File a new claim for social security disability;
  3. Give up.

You need the advice of an experienced Texas social security disability attorney to protect your rights and to help you understand the consequences of your choose when confronted with an unfavorable ALJ decision.

Claimants need to understand that once a claim is abandoned, the right to receive some of the retroactive benefits sought is forever lost. Once an ALJ decision is not appealed, social security rules provide that you cannot be found disabled prior to the date of the ALJ decision.  The unappealed ALJ decision, in essence, “seals off” the period of time considered by the ALJ, which is assumed to be through the date of the decision.

This fact can also foreclose the right to receive any social security disability insurance benefits if the claimant’s date last insured is prior to the date of the decision. For example, let’s assume that a claimant has a date last insured of 12/31/13, and the ALJ’s denial is dated 1/1/14. If the denial is not appealed, then social security regulations provide the ALJ’s decision that the claimant was not disabled through 1/1/14 is “chiseled in stone”. Since social security disability insurance requires a finding of disability prior to 12/31/13, the claimant has forever lost her right to social security disability insurance benefits.

I encourage all social security disability applicants who have received an unfavorable ALJ decision in Texas to seek legal counsel immediately. I consult with claimant’s who are not represented by an attorney and who have received a recent unfavorable social security disability insurance decision to contact me for a free consultation.