A few weeks after your hearing, the judge in your case will issue a written decision. There are three possibilities:
- fully favorable decision
- partially favorable decision
- unfavorable decision
If you receive either a partially favorable or an unfavorable decision you have the right to appeal to the Appeals Council.
The Appeals Council process can take 12 to 18 months and the possible outcomes are:
- deny your appeal and affirm the decision of the administrative law judge
- remand your case back to the ALJ with instructions about what to do differently
- reverse the ALJ’s decision and award benefits
Statistically, the Appeals Council remands only about 10% of cases it reviews. Outright reversals are even more rare. Generally speaking the Appeals Council will only reverse or remand a case if the hearing judge made a significant error.
Why Appeals Council Remands are Rare
The Appeals Council will not conduct another hearing. Generally speaking it will not consider new evidence and it will not disturb the findings of the hearing judge. For example, if the hearing judge concluded that your treating doctor’s functional capacity assessment was not consistent with the underlying medical record, the Appeals Council will not second guess the judge’s analysis.
When Will the Appeals Council Reverse or Remand?
Generally speaking the Appeals Council will reverse or remand if the hearing judge applies the law incorrectly, or if the judge makes a significant factual error in his decision.
For example, if the judge writes in his decision that there was no MRI test, or that the MRI test in the record shows no impairment, but the MRI test actually shows multiple herniated discs, that would be reversible error.
Another example would be if the judge analyzed your case under the grid rules but used the wrong grid rule to deny your claim.
Should You Appeal a Partially Favorable Decision?
You should be very careful about appealing a partially favorable decision. Firstly, by appealing you will not receive benefits based on the favorable part of the decision. Secondly, if the Appeals Council does remand for a 2nd hearing, all issues would be up for consideration and that partially favorable outcome could become an unfavorable decision.
You and your lawyer need to consider the money involved as well as the risk before appealing a partially favorable decision.
Can You Appeal an Unfavorable Decision and also File a New Application for Benefits?
No, you have to choose one or the other.
What Other Practical Consideration Should You Consider?
If your insurance coverage for SSDI ran out prior to the date on your unfavorable decision, then it most likely makes sense to appeal rather than filing a new application. You cannot re-litigate the question of whether you were disabled through the date of the unfavorable. So your onset date in a new application would be the day after the date on the unfavorable decision.
Like other appeals, the time deadline to file an Appeal to the Appeals Council is short – only 60 days from the date you receive the unfavorable. SSA assumes you received your decision 5 days after the date on the written decision. The wise course of action would be to file your notice of appeal to the Appeals Council as soon as possible and to use the date on the ALJ decision as the starting point for your 60 days.
Generally speaking you should hire a lawyer to represent you when you file an appeal to the Appeals Council. You or your lawyer will need to draft a brief outlining the legal basis for your appeal – this is very difficult to do if you are a non-lawyer. In fact, many lawyers refer their Appeals Council work to a specialist who maintains an appeals practice. I interviewed an appeals specialist named Karl Osterhout on my podcast – you can listen to that episode here.
If the Appeals Council denies your claim you can appeal further – to federal court.