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APPEALING AN UNFAVORABLE ADMINISTRATIVE LAW JUDGE DECISION

Only about 55% of cases that come before an administrative law judge (ALJ) are favorable decisions. What can be done?

You may be able to file a new application. However, that means you lose any back benefits on the first application, and may lose a claim for particular benefits.

You can request that the decision be reviewed by the Appeals Council. If it is not a Federal Court remand, you have 60 days to file an appeal. This can be done online or by mail. If you do so, you must wait to file a new application.

How likely is the appeal? For 2019, only about 11% of the cases will be sent back for a new hearing.

Even if you did not have an attorney help you at the hearing, you can retain one for the appeal. It is important that you do so.

The majority of the cases are not reversed because the ALJ was wrong about whether the person was disabled, but for technical reasons: the ALJ failed to show s/he considered particular evidence or medical opinions; made incorrect or conflicting findings regarding the weight given to medical opinions; failed to ask if the vocational expert’s opinions were consistent with the Dictionary of Occupational titles; failed to craft a residual functional capacity assessment (RFC) that included all the documented limitations or that ignored required areas.

These are areas with which most lay people, and even other attorneys, are unfamiliar. An experienced Social Security attorney can perform a critical review of the decision and point out errors to the Appeals Council.

Even after an unfavorable denial from the Appeals Council, a law suit against the Commissioner may be brought in Federal District Court. However, very few attorneys are willing to take a case at this stage if they have not previously worked on it.