Appealing a Denial of Social Security Benefits

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Jacques Chambers, CLU, Benefits Consultant

Whether applying for Social Security Disability Insurance (SSDI) or for Supplemental Security Income (SSI), many people are denied benefits the first time they apply.

Social Security does offer a formal path of appeals, however, that can frequently get the denial overturned and benefits awarded. The appeal procedures are the same throughout the United States, with the exception of a few areas that are participating in a Disability Redesign Protocol pilot program that is discussed below.

The appeal process starts when you receive the denial letter from Social Security. The letter gives the reason(s) that your benefits are denied and it lists the medical records that they used to deny your benefits. The letter is also dated, and that date starts the clock for the first level of appeal.

Reconsideration
The appeal process starts when you receive the denial letter from Social S

You have sixty-five days from the date of the denial letter to ask Social Security to “reconsider” their decision. They give you sixty days from the time you receive the letter and they assume you receive it five days after the letter is dated.

To have your claim reconsidered, you must submit two forms:

• Reconsideration Disability Report (SSA-3441-F6) – This form consists of a series of questions that allow you to provide any new or additional information about your medical condition and to list any medical providers whose records weren’t used in the initial decision.

• Request for Reconsideration (SSA-561-U2) – This is the actual request for review; however, it can practically guarantee another denial if you aren’t careful. The form gives you three lines on which to explain why you don’t agree with the denial. I have never seen a denial overturned because of three lines of information.

However, I have never seen an approval based on just these two forms. To get your denial changed to an approval you must write “see attached documents” on the request form and:

• Submit medical records that show your symptoms are more severe than the original medical records stated;
• Submit new medical records and test results that provide more objective proof of your condition;
• Submit documentation that shows your condition meets one of the listings of impairments used by Social Security; and,
• Submit any other documentation that supports your claim, such as third party testimony, symptom diaries, etc.

Once you submit your Request for Reconsideration and accompanying documentation, the process is very similar to that used with the initial application. Your claim will be assigned to a claims or disability analyst, and that person will review all the medical information and determine whether or not you are disabled. Just as with the initial application, the analyst may request additional medical records or schedule you to have a consultative examination by one of their doctors.

Sixty-five days is not a lot of time, so it is necessary to work quickly to obtain all the necessary documentation to overturn your denial. Start with examining the denial letter. Although it appears to be a form letter, it really contains information important to the preparation of your appeal.

First, look at the medical records they used in their examination of your claim. What is missing? Did they miss one of the specialists? Your therapist? What is not on their list that would have supported your claim?

Next, look at the reason for the denial. This will give you an idea of just how much is missing to qualify for benefits. Often they will claim they didn’t find evidence that your symptoms are severe enough to prevent you from working. Other times they will claim that while you may be disabled enough to be prevented from doing your old work, there is other work available that you can do. In the former, they believe you can go back to your prior work so they really don’t consider you disabled at all. In the latter, they agree that you are disabled, just not disabled enough to prevent you from doing any other job.

When preparing your reconsideration appeal, start with the listing of impairments and the medical records you will need to show how your symptoms prevent you from doing any kind of work. (See Getting Disability Benefits Under Social Security with HCV in the Benefits Archives of this site.) Assemble your documentation and submit it with the required reconsideration forms.

Once your information is received you need to follow up with the process just as with the initial application since this level of appeal is a replay of the initial application process. (See Helping Your Social Security Claim Through the System in the Benefits Archives of this site.)

Don’t take the denial personally. Social Security is not saying that you are not disabled; they are not saying you are able to work; and they are certainly not saying that your symptoms don’t exist. They are examining medical records, which are not always the most complete or easy to read. The people who review your claim have certain steps they must follow and certain information they must find. If they don’t find it, they have no choice but to deny your claim. If you work with the analyst handling your reconsideration appeal, you can frequently provide her with the information she needs to approve your claim.

Many people, especially attorneys, will advise you to not waste time on the reconsideration step, but just file the necessary forms and wait for the denial. They will caution that about 80% of all reconsiderations are denied. However, I personally believe that very advice is what has created these distorted statistics. If you follow the advice in the columns on this website and study some of the many sites dedicated to Social Security disability, including Social Security’s own site at www.ssa.gov, you have a good chance of being one of the 20% that gets approved and of avoiding the necessity of waiting the many months it takes to get to the next level of appeal as well as having to share your benefits with an advocate.

Disability Redesign Prototype
In an effort to reduce the amount of time it takes to appeal denials, Social Security launched a pilot program in certain parts of the country. While the results of this program have been mixed, it is still followed in those areas where it was first launched, which includes the states of Alabama, Alaska, Colorado, Louisiana, Michigan, Missouri, New Hampshire, Pennsylvania as well as Albany and Brooklyn in New York, and certain Social Security offices in the Los Angeles area: Metro (Alhambra, Burbank, Chatsworth, Glendale, Glendora, Tujunga, University Village, Watts), Sierra West (Crenshaw, Culver City, Inglewood, Torrance), and South Coast (Compton, Huntington Park, Norwalk, Whittier).

Under this prototype program, the reconsideration stage of appeals is eliminated. Instead, the Social Security representative is to contact you, inform you that the medical record as examined does not support a claim for disability, and give you the opportunity to add additional documentation and medical evidence to the file before it is officially denied. Unfortunately, the letter being used to notify you does not clearly spell out that your claim will be denied unless you either submit more documentation or request an interview with the representative.

If your claim is filed in one of these areas, you should carefully read every piece of correspondence from Social Security and call if you are not clear about what they are telling you. (Of course, you should do that anyway, regardless of where your claim is filed.)

The ALJ Hearing
If your reconsideration appeal is denied, the next level of appeal is a hearing before an Administrative Law Judge (ALJ). This is a somewhat informal version of a trial, except there is no opposing counsel. You are given an opportunity to present to the judge and for the record additional documentation and to explain how the documentation they already have should be sufficient to allow your claim. The judge then decides whether your claim should be approved or denied. Many claims are approved at this level.

While you may appear on your own behalf without an advocate, virtually everyone who knows the system including me, strongly recommends that you obtain an advocate to help you argue your case at this level. The advocate may or may not be an attorney, but it should be someone who specializes in Social Security appeals.

Social Security requires that these advocates only charge you a fee if they are successful in obtaining your benefits. That contingency fee is limited by Social Security to 25% of any retrospective payment you receive from Social Security to cover the months in the past for which you should have received benefits. Be aware, however, that the advocate may charge for “expenses” in addition to the fee and may charge for them whether or not your claim is approved. Before signing up with an advocate, make sure you know just how these expenses will be determined. You also need to have a clear understanding of your involvement in the process. Many excellent advocates are so involved in their cases that they neglect to keep their clients informed of the process and their progress, creating unnecessary stress and worry for you.

The Appeals Council
If your case is denied at the ALJ level, you may appeal to an Appeals Council, which will decide, not if you are disabled or not, but rather, if the ALJ hearing was conducted appropriately and the evidence examined correctly. If not, they will return it for another ALJ hearing.

At this level an advocate is practically a requirement, and, because there is only one Appeals Council, it may take one, two, or more years for it to review your case. You do not appear before the Council; it reviews your file and the transcript of the ALJ hearing in order to make a decision.

Suit in Federal Court
Your final level of appeal is to file suit in federal court against Social Security for your benefits. Clearly, this requires an attorney and years before a decision is finally made. Instead of going to this level, many claimants will abandon their old claim and file a new one, although approval of the new claim will result in loss of all the past benefits under the old claim.

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[Jacques Chambers, CLU, and his company, Chambers Benefits Consulting, have over 35 years of experience in health, life and disability insurance and Social Security disability benefits. For the past twelve years, he has been assisting people with their rights, problems, and other issues concerning benefits and disability. He can be reached at jacques@helpwithbenefits.com or through his website at: http://www.helpwithbenefits.com.]

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