If a medical or mental condition keeps you from working, applying for Social Security Disability benefits ought to be fairly straightforward. You have worked and paid Social Security taxes for years, you can no longer work, and you apply for the disability insurance benefits you earned.
Unfortunately, the Social Security Disability process is rarely that simple.
Most disability claims are not approved at the initial application level. If your claim is denied, that does not necessarily mean that your case is over or that Social Security has made the correct decision. You have the right to appeal.
One of the biggest mistakes Social Security disability applicants make is receiving a denial and determining ” well the government must be right” and failing to appeal. In fact, having to appeal an initial denial—and often a reconsideration denial—is unfortunately par for the course.
For most disability claims, there are four possible levels of appeal after the initial decision:
- Reconsideration
- A hearing before an Administrative Law Judge (ALJ)
- Appeals Council review
- Federal court review
You generally have 60 days after receiving a denial to appeal to the next level. Missing an appeal deadline can have serious consequences: don’t simply put a Social Security denial letter aside and assume you will deal with it later. If you have even the slightest inclination to appeal the denial do it or contact a Social Security disability attorney immediately. One can always drop an appeal in the future if you feel strongly about not following that course.
Do You Need a Lawyer for a Social Security Disability Claim?
You are not required to have a lawyer to apply for Social Security Disability or to appeal a denial. Many people file their own initial applications.
The more important question is not whether you can handle the case yourself. It is whether having an experienced Social Security Disability attorney can improve the development and presentation of your claim.
Social Security Disability law has become surprisingly complicated. Winning a case involves medical records, medical opinions, residual functional capacity, past relevant work, transferable skills, and vocational evidence. Social Security law includes complex medical-vocational rules, and detailed regulations governing how medical evidence is evaluated.
A disability attorney can help identify what medical evidence is needed and develop a theory explaining why your medical limitations prevent you from performing work on a sustained basis.
The importance of representation is not just confined to the Administrative Law Judge hearing. Many key strategies recommended by an experienced Social Security disability attorney require time to develop and cannot be implemented effectively at the last minute.
Step 1: The Initial Social Security Disability Application
A disability claim can generally be filed online, by telephone, or by appointment with the local Social Security Administration District Office.
The Social Security Administration first determines whether you meet the non-medical requirements for the benefit you are claiming.
For an SSDI claim, for example, Social Security determines whether you have sufficient recent work credits and remain insured for disability benefits. SSI has different non-medical eligibility requirements.
If the non-medical requirements are satisfied, the medical portion of the claim is generally sent to the state Disability Determination Services (DDS). In Texas, the DDS in Austin develops the medical evidence and makes the initial medical disability determination.
DDS will attempt to obtain records from your doctors, hospitals, clinics and other medical providers. If the existing evidence is insufficient, DDS may arrange for a consultative examination.
Do You Need a Lawyer at the Initial Application Stage?
Not necessarily. Many people are capable of filing the initial application themselves. But your ability to file your own social security application should not be the sole factor in determining whether to hire a social security disability attorney.
I know that I am capable of changing my car’s oil and oil filter. But I choose not to do so. It would likely require hours of watching Youtube videos and mapping out the precise procedure I need to follow. Also:
- Do I have the tools necessary?
- How do I dispose of the old oil properly?
- As I drive down the road will I feel confident that I’ve done a good job, as loss of engine oil can be catastrophic.
One additional and important fact: You will pay the attorney the lesser of i) 25% of your social security disability back benefits or ii) $9200 whichever is less, regardless of what point in the process you hire them.
Let’s contrast two different situations: i) You hire the attorney from the “get go” or ii) You hire the attorney the day before your ALJ hearing. Because the social security disability appeal process is so lengthy you would likely owe the attorney $9200 in either situation. Keep this important fact in mind: by hiring an attorney early in the appeals process you would not in most instances have to pay your disability lawyer more than you would if you waited until the hearing stage. So if you believe you will eventually need to hire an attorney in your social security disability case you will in essence get more “value for your money” by hiring an attorney early in the process.
Here are just a few ways the Denman Law Office helps in filing an initial application:
- Assures that your application is accurate and complete
- Anticipates documents that are typically requested in the process and supplies them early thereby reducing the waiting time
- Helps set your expectations as far as how long the process will take
- Periodically checks status to ensure that a claim has not been misrouted or is not stuck at the district office without a reason
- Lowers your stress level knowing you have an experienced Social Security disability attorney handling the case
Step 2: Reconsideration
If your initial disability application is denied, the first appeal is called a Request for Reconsideration. Several key points about the reconsideration appeal level:
- You are in essence saying to the Social Security Administration: ” Please take a look at this case again. I think you were wrong”.
- The same decision-makers that denied your claim at the initial stage are unlikely to be involved in the reconsideration appeal stage on your case.
- The emphasis at the reconsideration level is on new medical evidence not seen at the initial application. A key duty for the social security disability attorney is to provide updated medical records. The basis for a reconsideration level win is usually the presence of new significant medical evidence. It is extremely rare for the Social Security Administration to look at medical evidence they’ve already seen and say “Gee I guess we were wrong about this in the first place”.
- At reconsideration the DDS will follow an identical development path as that performed at the initial level. Medical records will be ordered based upon the claimant’s statements about medical treatment sources. The DDS may order consultative examinations either conducted by video or in person at a location near the claimant.
- The reconsideration approval rate in Texas is only 16.5%.
Do You Need a Lawyer at Reconsideration?
This is often a good time to consider obtaining representation.
An attorney who becomes involved at reconsideration has an opportunity to review the case before it reaches the Administrative Law Judge hearing level and begin correcting weaknesses in the evidence.
And remember the deadline: in most cases, you have 60 days after receiving the initial denial to request reconsideration.
Step 3: The Administrative Law Judge Hearing
If your reconsideration appeal is denied, you can request a hearing before an Administrative Law Judge (ALJ).
For many disability claimants, this is the most important stage of the entire appeal process.
Unlike the initial and reconsideration stages, an ALJ hearing ordinarily gives you an opportunity to explain your limitations directly to the person deciding your case.
The ALJ will review the medical and vocational evidence, question you about your impairments and limitations, and may hear testimony from a vocational expert or other expert witness.
The hearing is not a traditional courtroom trial. Social Security Disability hearings are generally non-adversarial. There normally is not a government lawyer sitting across the room trying to defeat your claim.
But that does not mean the hearing is informal in the sense that preparation does not matter.
The judge may ask detailed questions about your symptoms, medical treatment, medications, daily activities, previous employment and why you believe you cannot work.
Your representative may also question you, question a vocational expert, submit evidence and make legal arguments concerning why your claim should be approved.
Do You Need a Lawyer for the ALJ Hearing?
You are still legally permitted to represent yourself.
But this is the point at which I believe the value of experienced representation becomes particularly significant.
Preparing an ALJ disability case involves much more than simply accompanying someone to a hearing. The representative should know the medical record, identify the important evidence, determine whether the record needs additional development, understand the vocational issues, prepare the claimant for testimony, and be ready to address the legal issues that may determine the outcome.
The day of the hearing is not the time to discover the weaknesses in your disability case.
[Learn more about Social Security Disability ALJ hearings.]
Step 4: Appeals Council Review
If the Administrative Law Judge issues an unfavorable decision, you can request review by Social Security’s Appeals Council.
This is a fundamentally different stage from the ALJ hearing.
The question is no longer simply:
“Am I disabled?”
The Appeals Council examines the ALJ decision and the record to determine whether there is a basis for reviewing the decision.
The Appeals Council is looking for legal errors committed by the ALJ, not whether the decision was “right or wrong”.
Depending upon the circumstances, the Appeals Council may deny the request for review, grant review and take action itself, or send the case back to an Administrative Law Judge for further proceedings.
This is why an Appeals Council appeal should ordinarily focus on identifiable problems with the ALJ’s decision rather than simply repeating that the claimant is disabled.
Do You Need a Lawyer at the Appeals Council?
This is a stage at which knowledge of Social Security Disability law becomes particularly important.
A useful Appeals Council argument requires identifying errors of law involving the evaluation of medical evidence, residual functional capacity, vocational evidence, hearing procedure, or application of Social Security regulations and rulings. Non-social security disability lawyers often have a hard time understanding the difference between errors that are not of legal import and true errors “as a matter of law”. Because the workload at the Appeals Council is heavy, it can be costly to waste the time of the reviewing Appeals Council analyst with arguments that are inconsequential.
Step 5: Federal Court
If the Appeals Council denies review or issues an unfavorable decision, the next level is no longer within the Social Security Administration.
A claimant may file a civil action in United States District Court.
Federal court is very different from an ALJ hearing. The federal judge does not conduct another disability hearing or simply decide from scratch whether you are disabled. The court reviews the agency’s final decision under the applicable standards of judicial review.
Depending upon the case, the court may affirm the Social Security decision, reverse it, or remand the case to Social Security for additional proceedings.
A federal court action generally must be filed within 60 days after receiving notice of the Appeals Council’s action.
At this point, representation by an attorney experienced in Social Security federal court litigation becomes particularly important.
Should You Appeal or File a New Disability Application?
After an unfavorable decision, some claimants immediately think:
“I’ll just start over and file another application.”
That is seldom the best strategy, and the rules governing subsequent applications while another claim is pending can be complicated.
The better question is why the previous claim was denied and whether the appropriate response is to appeal, file a new application when permitted, or consider some other strategy.
This decision can affect the period for which benefits might ultimately be payable and should be considered carefully. Please see our detailed article about how to decide to appeal to the federal court or start over: https://www.disabilityapproved.com/federal-district-court-disability-claim-last-stop-end-line-disability-case/
The Most Important Rule After a Social Security Disability Denial: Don’t Ignore It
A denial is not necessarily the end of your Social Security Disability claim.
But deadlines matter.
In general, you have 60 days to move from one appeal level to the next:
Initial denial → Reconsideration → ALJ hearing → Appeals Council → Federal Court
If you receive a denial, read the notice carefully and determine the deadline for the next step.
And don’t wait until the Administrative Law Judge hearing is approaching to start thinking about the strength of your evidence. A strong disability case is developed throughout the process.
Talk With a Social Security Disability Lawyer
Attorney Stanley Denman has represented Social Security Disability claimants in North Texas since 1991. His practice is devoted to Social Security Disability law.
If your disability application has been denied—or you are trying to determine where you are in the Social Security Disability appeals process—you can contact Denman Law Office for a free consultation.
There is no attorney fee unless we win your disability case.