What Happens if I’m Denied at the Hearing Level?
Assuming you’ve been denied at your hearing before the Administrative Law Judge (ALJ), it is not always clear what the best avenue to pursue is at that point. A number of options may be available to you, depending on the facts and circumstances of your particular claim, and discussing these options with your Social Security lawyer is important prior to making a decision. If you did not have the benefit of a lawyer at the time you applied, speaking with one after the fact may cause you to learn why in fact you were denied and what might be done to rectify matters going forward.
Your decision letter from the ALJ will explain that you have a right to proceed with an additional appeal called a Request for Review of the ALJ Decision, which is through the Appeals Council (and whose main office is located in Falls Church, VA). As with all appeals processes through the Social Security Administration (SSA), there is a deadline of filing such an appeal within sixty (60) days of receipt of the ALJ decision (with an additional 5 days allocated for mailing and ultimate receipt of the decision). However, it’s important to understand that by filing an appeal of the unfavorable decision one cannot, in the interim, file a new application for disability benefits with SSA except under the very rare circumstances where one can establish that there is a “new critical or disabling condition.”
The Appeals Council is presently dealing with a large backlog of pending cases (which is over 100,000 such appeals), with typical processing times in the past taking what could be 2 years (although at present it would appear to be a fair statement to say it’s taking slightly over a year to 18 months). This then creates a dilemma for many as to whether they choose to file a new claim or appeal the judge decision. Failing to appeal the judge decision further, will end up causing what is called “administrative finality” to the claim, the legal term for which is: “Res Judicata,” which stands for the matter has been decided. Assuming the judge decision becomes final, it becomes very difficult to seek benefits going backwards in time to the point a judge has found one “not disabled.” While there are what are called “reopening” rules that might allow for the reopening of that prior decision for “new and material evidence” that applies to that prior time period, this may prove to be a very difficult prospect. Assuming one went to hearing and provided the medical records up through that point in time and the disability claimant testified at hearing, it may be difficult to find additional evidence that would be pertinent to the prior time period that 1) had not been provided at the time of the hearing, 2) is pertinent to the prior time period and 3) is so significant as to now call for a new, favorable decision.
In the circumstance where one is debating whether to appeal the judge decision or file a new claim, it is likewise critical that one understand whether one is going to have an issue collecting on a new claim given one’s “date last insured.” The Social Security disability insurance (SSD) program requires that one remain insured at the time they are found disabled in order to collect a benefit check under the SSDI program. If one’s “date last insured” is prior to the date of the judge’s decision, and the presiding ALJ has found one “not disabled” through the time they remained insured, this will leave you out of luck in terms of trying to get SSDI benefits on a new application. For example,, if one’s date last insured is December 31, 2016, and the ALJ has issued an unfavorable decision dated January 15, 2017, this is a problem: SSA, on a new application, would only be able to find one disabled as of the date after the ALJ denial (that is, as of January 16, 2017 or after), and thus one would no longer qualify for an SSDI check as they were being found disabled at a point when they no longer were “insured.” Not to mention the fact that all of the retroactive benefits would have been lost with the filing of a new application (and the foregoing of an Appeals Council remand).
In order to protect oneself, it’s important you secure the advice of an experienced Social Security attorney well prior to letting your appeal period expire.