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Syracuse, NY Disability Law Firm

So your client received a DENIAL at their social security disability hearing, what’s next? Maybe another Appeal!

Before evaluating whether a case should be taken to the Appeals Council, representatives should know a Request for Review must be filed within 60 days of the date you receive the Administrative Law Judge’s decision. Social Security assumes that you receive the decision within 5 days of the date on the decision, so you have exactly 65 days to file your Request for Review.  The Appeals Council will not accept late filings absent good cause.

Procedural status

The claimants last date insured for disability benefits should always be considered in deciding whether to appeal. Before deciding that a new application is be best course, be sure that the Claimant is eligible to reapply. Specifically, if the claim was Title II Disability Insurance Benefits, eligibility depends on insurance status. Therefore, if the claimant’s insured status expired prior to the ALJ’s hearing decision, the only way to preserve the claim and pursue benefits is with an appeal. If the claimant filed a Title XVI Supplemental Security Income claim and remains financially eligible for benefits, a consideration of other factors may reveal she has a better chance of obtaining disability benefits through a subsequent application rather than an appeal.  Therefore, representatives must carefully review numerous factors including the medical evidence and the type of claim in deciding whether a hearing loss should be appealed.

Medical Evidence

The next step after a hearing denial is often to appeal. This is especially true in cases with a fully-developed medical record containing evidence favorable to a finding of disability, and also true when the ALJ jumped the gun and issued a decision despite outstanding material evidence. The ALJ’s errors in weighing the evidence or deciding the case without a fully developed record are strong arguments that the case should be remanded for further proceedings.

Some errors the ALJ commits are more likely than others to result in remand. For the year 2015, the most common reasons the Appeals Council remanded cases included the following: The ALJ failed to properly evaluate mental limitations; new and material evidence was presented upon appeal; a treating source opinion was not identified or discussed; exertional limitations were inadequately evaluated; the ALJ failed to provide an adequate rationale for the weight accorded to opinions from consultative examiners; the ALJ failed to adequately consider a mental disorder; an opinion from a non-examining source was not identified or discussed, or there was an inadequate explanation for the weight accorded; or, a treating source opinion was rejected without adequate articulation.

The Appeals Council denies a substantial majority of the Requests for Review it receives; in the year 2015, only 13.6% of appeals were remanded to a judge for further review.  During this time, a claimant is prevented from filing a new application for disability benefits, because an individual may only have one claim pending with the Administration at a time. The Appeals Council rarely considers any evidence dated after the ALJ decision, because it is outside the time period relevant to the appeal.  This means that even if a claimant’s medical conditions worsen while the case is pending at the Appeals Council, that evidence will not be considered relevant to the claim. Therefore, in cases where the strongest evidence may be dated after the ALJ decision, a claimant may be better served by filing a new application to consider their more severe medical conditions. The latest statistics released by the Administration state that the average processing time for a Request for Review was 374 days. [1] However, this is an average, and many cases may be pending longer. Given the low percentage of favorable outcomes at the Appeals Council Level, many claimants who develop new medical impairments may find a quicker resolution to their case through a new application.


A claim need not end with an Unfavorable Decision following a hearing, but there are important factors to consider in determining whether a claimant should appeal the hearing denial or file a new application. Often, even the Appeals Council denial may not be the end of the claim, and representatives should seek a Social Security Federal Court Attorney to evaluate the claim for Federal Court.

[1]Appeals Council Request for Review Statistics. (Last visited August 30, 2016.)