The “First” Appeal
If your application for disability benefits has been denied, you must file a “Request For Reconsideration” within 60 days of the date on the denial. This level is typically referred to as “Recon” and takes you to the second level of administrative review.
Unfortunately, the chances of winning at the reconsideration stage are very low. In Florida, statistics show that only about 10% of Requests for Reconsideration are approved for benefits. That means nine out of ten claims continue to be denied. Thus, you can generally expect that if you are denied on your initial claim for disability benefits, you will probably be denied on your first appeal for reconsideration as well.
If your initial claim is denied, expect to file at least two appeals (except in those states that have eliminated the reconsideration stage of appeal).
Do I Have To Go Through Reconsideration?
Most states in the United States do have the reconsideration stage as part of the application process. In the majority of states, you do have to go through reconsideration. There are a few states however, where you do not have to go through reconsideration, you go right from the initial application to a hearing before a judge. You can either file a reconsideration appeal on your own or find an attorney to represent you and file the appeal.
You Are Likely to be Denied Again After Your Request for Reconsideration
If your initial application is denied, then it is very likely that your reconsideration appeal will be denied as well. A lawyer may be able to help you turn things aground if you left out important information in your application; however, there is no guarantee.
Reconsideration requests are rarely approved because they are handled by the very same agency that reviews initial claims. In Florida, the state agency is called Disability Determination Services (DDS). DDS is responsible for deciding which cases win and which cases lose.
If you think about it, it isn’t very likely for the same state agency to deny an application for benefits and then approve it just a few weeks later. Logically, for DDS to deny an initial claim and then, just weeks later, to review the paperwork and approve the claim upon a request for reconsideration would be admitting to decisional errors on the initial claim.
In other words, it is practically an admission that a denied claim should have won and been awarded benefits in the first place. For this reason, DDS very seldom approves a Social Security Disability or SSI case at the reconsideration level and the denial rate on reconsiderations is even higher than the denial rate for initial claims.
However, some reconsideration requests are approved. There are two primary reasons that some claims are approved at this level. First, the claim is reassigned to a new claims examiner at the reconsideration stage. So someone new is looking at the claim with a fresh set of eyes. The claim may be approved because of this new perspective. Second, some claims are approved because new and material evidence is submitted during the appeal that bolsters the strength of the claim.
For these reasons, you can expect a virtual automatic denial of the reconsideration because it happens roughly 90% of the time. Thus, the general “rule of thumb” regarding approvals and denials is that, unless you are approved on your initial application, you will likely need to have your case heard by a judge at a hearing before your case can be won and benefits can be approved.
Be Aware of the Deadline
Anyone can file their own appeal online or at their local Social Security District office. However, many of those who choose to file reconsideration appeals on their own have a tendency to procrastinate, sometimes to the point of missing the appeal deadline. Always remember that Social Security only allows 60 days from the date of denial (plus 5 additional “grace” days to allow for mailing time) for an appeal to be filed at the Social Security office.
A surprising number of disability claimants who fully intended to file an appeal miss this deadline. Most of these make the mistake of thinking that the deadline only means that their request for reconsideration has to be postmarked within 60 days from when they received their notice of denial. But tt actually has to be in the Social Security office, not just postmarked, within 65 days of the date stamped on the denial letter. This is one reason why it is a good idea to get a lawyer before you file an appeal. A good disability lawyer will file all appeal paperwork for you on time.
If You Want Help, Seek it Early On In the Process
If you do decide to hire a disability attorney for your reconsideration appeal, do not put this task off until it is too late for the lawyer to be of any real help to you. In order to act on your behalf in proceedings before the Social Security Administration, your lawyer must have certain forms signed, such as an Appointment of Representative, an attorney fee agreement, and permission to get your medical records (Form SSA-827, which is a medical record release form). If you wait too long to hire an attorney, you may not allow enough time to complete the forms, and you may end up having to request an appeal on your own so that you do not miss the 60-day deadline.
The “Second” Appeal
If your Request for Reconsideration has also been denied, you must file a “Request For Hearing Before an Administrative Law Judge”. As is the case for the previous appeal, you must appeal to this level within 60 days of Reconsideration denial.
Numerous studies have shown that ALJs are significantly more likely to approve disability benefits to those who are represented than to those who represent themselves. Statistically, less than 40% of unrepresented individuals who apply for SSI or SSDI and have their case heard before an administrative law judge (ALJ) will end up winning disability benefits. About 70% of individuals who are represented by an attorney will end up winning disability benefits. Before your hearing, you should have legal counsel.
The “Third” Appeal
If the Judge denies your claim, you have the right to file an appeal with the Appeals Council. Any appeal should be filed immediately following the denial by the Administrative Law Judge as you only have 60 days from the date on the decision to file your appeal.
- In counting the 60 days, the Appeals Council presumes that you received the Administrative Law Judge’s unfavorable Notice of Decision five days after Social Security mailed it unless you can show that you received it later.
- If you do not appeal on time, the Appeals Council may dismiss your appeal. This means that you may not be eligible for the next step in the appeal process and that you may also lose your right to any further review.
- You must have a good reason if you wait more than 60 days to request an appeal. If you file an appeal after the deadline, you must explain the reason you are late and request that Social Security extend the time limit. The people in the Social Security office can explain further and help you file a written request to extend the time limit. The Appeals Council will consider your request and decide whether to extend the time limit.
In the alternative, you have the right to reapply and start a new Social Security claim. Unfortunately, you can no longer file an appeal and file a new application at the same time anymore.
What Happens When You Disagree With The Appeals Council’s Decision?
If you disagree with the Appeals Council’s decision, or if the Appeals Council decides not to review your case, you would then have to go to the last level of the appeals process which would be to file a civil suit in a federal district court. If you bring a civil action seeking judicial review of the Social Security Administration’s (SSA’s) final decision, our staff will prepare the record of the claim for filing with the Court. This includes all the documents and evidence SSA relied upon in making the decision or determination. There is a fee for filing a civil action in Federal court.
Work with an Experienced Florida Social Security Disability Lawyer
Every case is unique, so I encourage you to give us a call to discuss your individual case. The Ortiz Law Firm represents Social Security Disability claimants in Northwest Florida and Southwest Alabama. If you’d like to speak to an experienced Social Security Disability attorney contact us at (866) 853-7703 to schedule a consultation. We can help you evaluate your claim to determine if you will be able to access Social Security Disability benefits and how to move forward with the process.