Appealing A Social Security Disability Denial in New York

If your initial disability claim, i.e. application for disability, in New York is denied and you wish to pursue Social Security or SSI disability, you must begin the Social Security appeal process. You have sixty-five days to appeal your denial from the date of your denial letter. This includes the sixty day appeal period and five days for the mailing of your denial notice.

The first disability appeal level is the reconsideration appeal. Reconsideration appeals are sent back to the state disability agency responsible for the initial disability claim decision. It is not sent to the same disability specialist or examiner who made the initial disability decision; however, the reconsideration disability examiner is still bound by the same guidelines as the first.

Logically, there is very little turnover at the reconsideration appeal level. The approval rate for reconsideration appeals is about ten to fifteen percent. As with your initial disability claim denial, you have sixty-five days to get your appeal to your local Social Security office. The second appeal level is an administrative law judge (ALJ) hearing (a.k.a. a request for hearing before an administrative law judge).

The ALJ disability hearing appeal level is the level of the disability process that produces the highest rate of approvals. The national average approval rate for ALJ disability hearings is about sixty-five percent; this is especially good since another ten percent are dismissed or denied for other reasons. Meaning, only twenty-five percent of all disability applicants who file for ALJ hearings are denied.

If your disability hearing review is denied, you can still appeal the administrative judge's decision. Like other appeals, you again have a sixty-five day total appeal period. The third disability appeal level is an Appeals Council Review request.

The Appeals Council Review appeal is not likely to result in an approval. The Appeals Council looks for a flaw or mistake in the ALJ's hearing decision before even reviewing the case. Only about two or three percent of cases are approved for disability benefits through the Appeals Council Review. Most disability claims sent to the Appeals Council are dismissed.

The only course of action available to a disability applicant once the Appeals Council denies or dismisses their disability claim is Federal Court Review. While disability applicants have an adequate chance of winning in federal court, it is time consuming and expensive.

Also, it could take years to win your disability case by suing Social Security. In fact, most disability lawyers do not file disability cases in federal court because of the expense and time. Only about one percent of all disability cases make it to federal court.

Note: The request for reconsideration appeal step is currently suspended in the state of New York as New York is one of 10 prototype states testing a system in which denied claims move immediately to the hearing level upon appeal. Reconsideration may be reinstated at some point and many consider this likely.

In the meantime, a claimant who is denied on a disability application should request, and prepare, for a hearing before a federal administrative law judge. Hearing preparation should include gathering updated medical records (SSA does not conduct case development once a case is poised to go to a hearing).

It should also include gathering statements from a claimant's treating physician, or physcians.

Finally, it should include crafting a case theory that draws upon Social Security rules, regulations, and prior court rulings in order to provide a compelling argument for approval.

About the Author: Tim Moore is a former Social Security Disability Examiner in North Carolina, has been interviewed by the NY Times and the LA Times on the disability system, and is an Accredited Disability Representative (ADR) in North Carolina. For assistance on a disability application or Appeal in NC, click here.

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