Because only one-quarter to one-third of disability applications are approved at the initial level, a successful disability claim usually requires more than one appeal. While many disability applicants win their cases after a hearing in front of an administrative law judge (ALJ), some are again denied. If you receive an “unfavorable” decision (a denial) or a “partially favorable” decision from the ALJ, you have 60 days from the date of the denial notice to request an appeal from the Appeals Council. (A partially favorable decision grants you disability benefits, but the retroactive payments don’t go back to when you say you first became disabled.)
Before you file an appeal with the Appeals Council, you must carefully examine the ALJ decision and look for errors of fact or law. If you can craft a persuasive argument as to why the ALJ’s decision was not supported by substantial evidence, you’ll have a decent chance at getting the Appeals Council to remand (send back) your case to the ALJ for a new hearing. (While the Appeals Council may reverse the ALJ outright and award benefits itself, this happens so infrequently that it’s barely worth mentioning. In reality, a favorable Appeals Council decision usually involves sending your case back for a new hearing, with special instructions to the ALJ.)
The remand rate at the Appeals Council was as high as 40% just a few years ago, but it has declined recently. As of February 2012, the rate stood at 22%, a number which still indicates that it’s entirely possible to win an Appeals Council case if the facts and law are on your side.
Pointing out mistakes made by the ALJ can increase your chances of getting a remand. What kinds of mistakes should you look for when reading your ALJ decision? Here are some common grounds for remand cited by the Appeals Council having to do with improper consideration of your limitations, although there are many others.
Insufficient Weight Given to the Treating Physician’s Opinion
The most common reason for the Appeals Council to remand a case is that the ALJ failed to give adequate weight to the opinion of the applicant’s treating physician. If the doctor or mental health professional who regularly treats you has completed a Medical Source Statement or Residual Functional Capacity (RFC) form indicating that you have substantial work-related limitations, and the ALJ didn’t give a good deal of consideration to these limitations, you may have solid grounds for appeal.
Under Social Security regulations, ALJs are required to identify and explain what weight they gave all medical source (doctor) opinions. If your ALJ gave your doctor’s opinion something less than “controlling” weight, find out why. If the reasons don’t stand up to scrutiny, you or your lawyer should mention this in your letter to the Appeals Council.
RFC Not Supported By Substantial Evidence
Every ALJ decision contains an assessment of your RFC, or the most you can do despite your impairments. If you’re suffering from depression, anxiety, and knee pain, for example, the ALJ may decide you’re limited to jobs with only occasional interaction with co-workers, no contact with the general public, and only two hours of standing per day.
Your RFC is incredibly important because it helps determine whether there are jobs that exist in the United States that you can perform. The ALJ cannot ignore limitations that are in your medical file and say that you can do more than your doctor’s notes or medical evidence indicates you can do. If the ALJ’s assessment of your RFC is not supported by the medical evidence, you should make that argument to the Appeals Council.
Vocational Expert Testimony Not Based on Correct RFC
Pay attention to the testimony of the Vocational Expert (VE) at your hearing, and particularly note the details of the hypothetical questions that the ALJ asks the VE. Here’s an example of a hypothetical question a judge might ask: “What jobs, if any, could a person of the same age, education, and with the same work history as the claimant be able to do if he or she could lift no more than 10 pounds on a regular basis, could stand no more than two hours per day, and could not have contact with the general public?”
It often happens that the ALJ will fail to include certain elements or limitations of your RFC in her hypothetical questions to the VE about whether a person could work. For example, the ALJ might neglect to ask about a hypothetical person who can have only occasional interaction with co-workers. The unfortunate result is that the VE will identify certain jobs that a hypothetical person could do, but your RFC is more restrictive than the hypothetical individual’s.
You have an absolute right to request a copy of the hearing audio, and you should consider listening to it in the course of preparing your appeal. If no VE testified at your hearing, this may be grounds for appeal itself, if you could show that you suffered from a severe non-exertional (that is, non-strength-related) impairment.
Impairment Erroneously Classified as “Non-Severe”
At Step Two of Social Security’s five-step process for deciding disability cases, Social Security determines which of your impairments are severe and non-severe. As defined by Social Security, a severe impairment is one that “significantly limits an individual’s physical or mental abilities to perform basic work activities.” Non-severe impairments are slight abnormalities causing only a minimal effect on basic work activities. In practice, the bar for what’s considered “severe” is set rather low. If the medical evidence in your case shows that one or more of your impairments is limiting basic work activities (like walking, standing, focusing, following directions), the impairment should be considered severe.
ALJ Didn’t Consider Both Severe and Non-Severe Impairments
Even if one of your impairments was properly labeled non-severe, the ALJ needs to consider its effect on your ability to work. A Social Security regulation requires the ALJ to consider the restrictions and limitations caused by all of your impairments, even those that are non-severe. For example, if the ALJ finds that you suffer from anxiety but that it’s non-severe, you still may be prevented from performing certain types of jobs, such as those that require frequent interaction with the general public. When combined with your other physical or mental limitations, this limitations may prevent you from doing your past job or limit the number of other types of jobs that you could do.
There are many other grounds for appealing your decision to the Appeals Council. To find remandable issues in your case, check with an experienced disability attorney in your area, and read on to the next page to find out about errors judges make concerning credibility, summarizing your testimony, not developing the evidence in your case, and more.
If you’ve received an unfavorable or partially favorable decision after your disability hearing, you should examine the Administrative Law Judge’s decision for factual or legal errors. If you find a significant mistake that could change the outcome of your case, you should appeal your case to the next step, the Appeals Council.
Some of the most common errors made by Social Security include failing to afford proper weight to your treating doctor’s opinion, assigning you an incorrect Residual Functional Capacity (RFC), or asking incomplete questions of the Vocational Expert (VE). (Read about those errors in the first page of this article, on common mistakes made by Social Security judges.)
Here are several more mistakes ALJs make in their decisions that you can appeal to the Appeals Council, all having to do with when the judge improperly ignores or discounts available evidence.
ALJ Didn’t Give Specific Reasons for Not Finding You Believable
The ALJ is required to make a determination (“finding”) of your credibility and to use specific reasons in explaining that finding in his or her decision. For instance, if an ALJ finds that an applicant’s testimony is not believable, a conclusory statement such as “the claimant’s allegations are not credible” or “the claimant’s allegations are unsupported by objective medical evidence” is insufficient. The ALJ needs to be more specific; for example, “The claimant repeatedly made inconsistent statements about his use of alcohol.” The Appeals Council generally gives wide latitude to ALJs in determining whether an applicant is credible, but only when ALJs provide reasoned explanations of their findings.
ALJ’s Discussion of Your Testimony Left Out Important Information
The ALJ is not permitted to mischaracterize or inaccurately summarize your hearing testimony in his or her decision, although this happens with surprising regularity. For example, if you state at the hearing that your friend takes you grocery shopping once per month, but you need to use a motorized cart while at the store and can’t unload your groceries due to pain, the ALJ should not summarize your testimony by saying, “The claimant stated she is able to go grocery shopping.” Request the audio recording of your hearing to compare what you actually said with what the ALJ claims you said.
ALJ’s Decision Didn’t Discuss Serious Side Effects of Your Medication
Social Security regulations require the ALJ to consider the type, dosage, effectiveness, and side effects of all of a claimant’s medications. If, for example, you take pain medication that causes you nausea and fatigue, the ALJ should discuss these side effects and how they would affect your ability to work. The limitations caused by these side effects should be a part of your RFC and should at least be mentioned in the judge’s decision.
ALJ Discounted Observations of Non-Physician Medical Professionals
Social Security splits medical professionals into two categories: “acceptable” medical sources (physicians, psychologists) and “other” medical sources, which include therapists, counselors, chiropractors, and nurses. While these “other” sources may not establish the existence of a medically determinable impairment (this basically means they can’t provide a diagnosis of the condition that could be causing your symptoms), these other sources may provide information and opinions about the severity of your impairment. The ALJ cannot improperly discount the opinions or observations of these non-physician medical sources and is required to explain the weight given to them. Failure to do so can result in the Appeals Council sending your case back to the ALJ for a new decision.
ALJ Did Not Develop Your Medical Record
ALJs are required to make sure there is enough evidence in your record to fairly decide the case. Unlike a regular court case, where each side is responsible for finding their own evidence and presenting it, the U.S. Supreme Court has held that Social Security proceedings are not “adversarial,” but “inquisitorial,” meaning that the ALJ has a duty to investigate the facts and develop the evidence supporting and opposing your case. If the medical evidence in your case is unclear or insufficient to allow the judge to make a fully informed decision, the ALJ may need to re-contact your physician or send you for a consultative examination with one of Social Security’s doctors.
For instance, there is often some indication in an applicant’s file of a low IQ (such as past special education classes or reported difficulty reading and writing), but no recent IQ test results. Because a low IQ can extremely important in a disability case, the ALJ may be required to send you for an intelligence test before deciding your case. Failure to do so can be “reversible error.”
Sorting Through Errors
Remember that ALJ decisions almost always contain some error of fact or law that can be argued to the Appeals Council. Social Security regulations and the reviewing federal courts require a great deal of specificity and accuracy in ALJ decisions, and it’s a good bet that if an error can be made, it has been made by an ALJ at some point in time. Your chances at the Appeals Council will be improved substantially if you focus on specific, non-trivial mistakes of law and fact, especially those related to your doctor’s opinions, your RFC, and the VE’s testimony.
Before trying to handle an appeal to the Appeals Council or federal court on your own, consult with an experienced disability attorney to get advice on what mistakes the ALJ might have made in your case.
Source of article: by: Aaron Hotfelder