Social Security Disability Denials and Appeals Process
What Is To Be Expected Of The Appeals Council?
The appeals council is where you appeal from an unfavorable decision given by the Administrative Law Judge or an ALJ, and that process currently takes about two years. This is done with a paper record without an appearance by the claimant themselves or their attorney. The appeals council will either agree with the ALJ’s decision or disagree in whole or in part. If they disagree in whole or in part, they will remand it for whatever parts they disagree with, generally giving specific instructions on what the judge should consider in the rehearing process. There is always a chance that they could just outright reverse it, but that does not happen very often at all.
What Happens At The Fourth And Final Appeal? Does Florida Have That?
Yes. If the appeals council denial can be appealed, it can be appealed in federal court. This is also a lengthy process, but like the appeals council, it is a paper review for which the claimant does not appear for a hearing.
How Long Does One Have To File The Appeal After The Initial Denial?
You have sixty days from the date of the denial, which is at the top right hand corner of that denial on the first page, plus five days for mailing from the day of the denial letter itself.
How Long Does It Take To Get An Answer Between Each Level? Is It The Same At Each Level?
No. When you file the initial application and the reconsideration level, which is the second level, those are both usually three to five months. Then after you file the request for hearing, it generally is up to twelve to eighteen months, at least in the Tampa area. It varies from area to area, but in the Tempe area, it is usually that long to get a hearing. It generally takes a few weeks to a few months to obtain the judge’s decision after a hearing and around two years for the appeals council.
What Are Some Things That Someone Should Do Or Could Do To Prepare For An Appeal’s Hearing?
The only level that you really have a hearing at is the request for hearing level after the reconsideration level. If you have an attorney, they should meet with you before the hearing to prepare you for this. Attorneys generally meet with their clients about two weeks before the hearing to go over the types of questions that will be asked and what the environment will be like. They will answer any questions that the clients may have about the process, as well as discus appropriate dress and courtroom etiquette.
If You Have Missed The Appeal Deadline, Is There Anything That You Can Do?
Sometimes, yes you can. Depending on the reason that you have missed a deadline, you can file a request for extension of time for good cause to file. This will generally be granted if the reason that you failed to file the appeal in a timely manner was not within your control. Some reasons or examples of that would be mental illness, which does not allow you to understand your right to appeal. It could also be hospitalization which delays your receipt of the denial; moving which delayed the receipt of the denial, or any other catastrophe, such as a house fire.
If you can show that it was not within your power to appeal, they will generally grant that. If it is just because you didn’t feel like it, then you are most likely not going to be granted an extension. However, you can do a new application if it is within a certain period of time, it is two years for SSI and DIB is four years. If you are filing it within that time period, you can ask for reopening of the prior application. You still have to start the application process over again, but you can at least get a protective filing date.
Are You Able To Work While You Appeal The Social Security Disability Decision?
Any work you may do while your case is being appealed, will be scrutinized to determine how much work you really are capable of performing. There is an amount that social security looks at to determine if you are what they call substantially gainfully employed and that amount changes yearly. In 2016, it was $1,130, in 2015, it was $1,090, in 2014, it was $1,070 and in 2013, it was $940. If you earn that amount of money or more in any given month that is considered to be Substantial Gainful Activity, meaning you are able to work.
If you do this any one month within the first twelve months after your alleged onset date of disability, you will have to begin that twelve month elimination period all over again. Once you pass the twelve month elimination point, then they look for that same Substantial Gainful Activity or SGA, but they will also look at a lower amount to determine if it is a trial work period. So, there are many rules that we follow, we do take in to consideration self-employed individuals versus regularly employed individuals. On the whole, the case is definitely more closely scrutinized if there is income earned during the period that you are claiming disability.
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