| Natalia Jofre: | Hello and welcome to Hill & Ponton Social Security Disability Blog, I’m Natalia Jofre. I’m the director for our Social Security section. |
| Shelly Mark: | And I am Shelly Mark, I am the senior Social Security attorney. |
| Natalia Jofre: | So in our last blog we talked about when you get an unfavorable decision, what that means, and now we’re going to talk about, okay, so you’ve been denied, what can you do next? |
| Shelly Mark: | Right. |
| Natalia Jofre: | So I would say the first option would probably be to file an appeal to the Appeal’s Council. |
| Shelly Mark: | That’s correct. |
| Natalia Jofre: | So first of all, you have 60 days to file an appeal, plus five mailing days. We strongly encourage you not to rely on that. |
| Shelly Mark: | Yeah, don’t wait until the 60th day. |
| Natalia Jofre: | Don’t do that. The sooner you file your appeal the better because then that also means the sooner you’re going to get a decision. |
| Shelly Mark: | That’s right. |
| Natalia Jofre: | And by the way, it takes a ridiculously long amount of time to get a decision, so you want to really submit that appeal as soon as possible. Now of course, if … and we see this happen all the time, people say, “Social Security sent me my decision, and it got lost, and they mailed it on April 1st, and now it’s May 25th. And it’s not my fault.” Well, that’s why they give you the five mailing days. |
| Shelly Mark: | Right. |
| Natalia Jofre: | Do we recommend that you still wait and be like, “Oh well, I’m going to only take 60 days from this date.” No, always get your appeal in within the 60 day deadline if you can. |
| Shelly Mark: | Yeah. |
| Natalia Jofre: | Because if not, it makes them look at everything closer. |
| Shelly Mark: | Yeah. |
| Natalia Jofre: | So if you file an appeal to the Appeal’s Council, do you want to explain what the Appeal’s Council is? |
| Shelly Mark: | Sure, the Appeal’s Council is basically the oversight for all of our judges at the hearing offices. Their job is to review judges’ decisions, both favorable and unfavorable, and deny, or award, or remand any. 95% of the time I would say if we’re getting a favorable decision from the Appeal’s Council, it’s a remand. And what that means is that they’ve decided that the judge did commit error, and that they are going to remand the case back down to the judge with very specific instructions. So it may be to take further vocational expert testimony, or it may be to address the client’s anxiety disorder that wasn’t addressed. That is … remand just basically means send back down. So the case is sent back down to that judge for another hearing, where the client will then go with their attorney to the judge for a remand hearing. |
| Natalia Jofre: | Now here’s the kicker, and this is the question we always get, “Am I going to see a different judge?” And the million dollar is no. |
| Shelly Mark: | No. |
| Natalia Jofre: | You’re going back to the same judge that denied you the first time around. |
| Shelly Mark: | Right. |
| Natalia Jofre: | So people get used to … you know, when you file an application, you get denied, it goes to the examiner, if you get denied it goes to a different examiner, and so people are accustomed to a different person is going to review your case and your decision and see if you … if a different decision should’ve been made. |
| Unfortunately, when the Appeal’s Council remands the case, it’s going back to the same exact judge. Sometimes variances can happen, so like if your judge- | |
| Shelly Mark: | Right. |
| Natalia Jofre: | Retired, or was transferred, or if now you’re in a different state, okay, then yes, you’re probably going to go to a different judge. But 99% of the time you’re going back to the same judge who’s going to have another hearing, and try to make themselves the decision that they made a mistake. |
| Shelly Mark: | Right. |
| Natalia Jofre: | And reverse their own decision. |
| Shelly Mark: | Right. |
| Natalia Jofre: | So … |
| Shelly Mark: | It’s a … the way … if the decision is just something that maybe the judge overlooked, or maybe the judge was having a bad day, and we all do, I don’t mean that lightly- |
| Natalia Jofre: | Right. |
| Shelly Mark: | I know that people wait years for this, but it does happen, mistakes are made. I’ve had remand hearings with judges that are just as kind as they can be, and they’re like, “This wasn’t addressed in our first hearing, I’m going to apologize about that, we’re going to do that today,” and the claims are awarded. |
| And sometimes, unfortunately, you do have other judges that are … frustrated that they’re having a remand hearing, and they may not- | |
| Natalia Jofre: | You did a good job saying that nicely. |
| Shelly Mark: | They may not be as willing to correct errors. They may be willing to un-accept that it was actually an error. So it is a risk- |
| Natalia Jofre: | Yeah. |
| Shelly Mark: | As to whether or not you’re going to go back before a judge that has the … that will have the ability to objectively look at their decision. Again, I think that’s why it’s really important to be working with counsel that knows these judges, and works with them. Because we know if it’s a judge, and the decision is kind of out in left field compared to where- |
| Natalia Jofre: | Yeah. |
| Shelly Mark: | They would normally be, we think, “Well, let’s appeal this, because I think if we get this back before this judge, they’re going to grant it.” |
| Natalia Jofre: | Right. |
| Shelly Mark: | And then there are others that we would be, “We’re not going to appeal this, because there’s no way they’re going to change their mind.” |
| Natalia Jofre: | Yeah. So two other options, if you do get denied by the Appeal’s Council, you can then go to federal court. |
| Shelly Mark: | That’s correct. |
| Natalia Jofre: | Very difficult, very, very difficult to win in federal court. |
| Shelly Mark: | It’s difficult to win in federal court, it’s not impossible. It is expensive, and it takes a lot of time. |
| Natalia Jofre: | Yeah. So, that’s … |
| Shelly Mark: | And the new claim. There’s a lot of different reasons- |
| Natalia Jofre: | That’s the other option, and that’s a good one. |
| Shelly Mark: | Why we would or wouldn’t file a new claim. In a lot of cases, like you were saying, circumstances change. The severity of the condition may be changing, or the person’s age may be changing. In situations like that, it may make more sense just to file a new claim. |
| Natalia Jofre: | You know what I’ve had happen in several cases, is they’ll go the hearing, and they’ll get denied, and they were disabled, but for whatever reason the judge didn’t feel it was severe enough, and then I’ve had a lot of cases where after the hearing, they either had a car accident, I’ve had several where that’s happened, a really bad car accident, or they’ve had a catastrophic diagnosis of like stage three or stage four cancer, or something like that. Or like being diagnosed with Parkinson’s Disease- |
| Shelly Mark: | Right. |
| Natalia Jofre: | Or some other neurologic disorder, where now it’s like you can’t submit that evidence, because it’s not supportive of the claim they’ve had up until now, it’s already after the hearing, it’s already gone to the Appeal’s Council, blah, blah, blah- |
| Shelly Mark: | Right. |
| Natalia Jofre: | But now with this added event and all of the problems it’s caused and the symptomology and the disease, now for sure it should be enough for them- |
| Shelly Mark: | Right. |
| Natalia Jofre: | To be found disabled. And a lot of those cases do get approved- |
| Shelly Mark: | Right. |
| Natalia Jofre: | With a new claim. |
| Shelly Mark: | That’s exactly right, and we’ve just filed a few recently to where the age group … you know, you may be 54 on the day of your hearing, and you’re still in that age category to where your file can only be reviewed based on those statutes from 50 to 54, and our counsel clients, we can appeal it, but the reality is the judge didn’t really make an error- |
| Natalia Jofre: | Yeah. |
| Shelly Mark: | He applied the right statutes, but if we refile it, you’re going to turn 55 and we have very good luck with having those approved early on. |
| Natalia Jofre: | Yeah. |
| Shelly Mark: | When they’re switching into those age groups. So it’s always important to really look at whether you want to file an appeal. A lot of people always want to file an appeal, just because they’re frustrated, they’ve waited two, three years and they don’t like the idea of losing the entitlement to their past due benefits. |
| Natalia Jofre: | Yeah. That’s the biggie. But if it means you’re going to wait another two years, and you’re also going to end up again empty handed- |
| Shelly Mark: | Right. |
| Natalia Jofre: | Then perhaps filing a new claim is the better way to go, especially if you have an increased chance of being approved. |
| Shelly Mark: | Right. And one other thing you have to be really careful about when you’re deciding to appeal, is whether you have a DLI issue. We’ve talked about date last insured some. I’ll just say that we’ll probably discuss that in a future video blog, but you’re only eligible for disability benefits so long after you stopped working, and if that time period is going to expire while you’re waiting for an appeal, you have to realize that if that’s denied, you cannot file a new claim. |
| Natalia Jofre: | Okay. |
| Shelly Mark: | So any time we have a client that’s really close on a DLI, my advice would definitely be the new claim. |
| Natalia Jofre: | To file and … yeah. So we’ll talk about date of last insured next time. |
| Shelly Mark: | That’s a good idea. |
| Natalia Jofre: | Okay, great. Well for now, thanks for joining us. If you have any questions feel free to visit our website or call our office. |
| Shelly Mark: | Thank you. |
Video Blog – Appeals Council and Federal Court
