Can you still Appeal if the Judge denies your Disability Claim?

approved for disability benefits after filing a disability application, or the claimant will be denied and will then face the decision of A) giving up on their claim, B) filing a new claim, or C) or filing an appeal.

The first disability appeal is the request for reconsideration, a step that is practically identical to the initial claim (i.e. the disability claim). Most claims that are reviewed at the reconsideration level are denied, just as with the initial claim.

The second appeal is the hearing which is held at a federal hearing office (formerly known as the office of hearings and appeals and now known as the office of disability adjudication and review). Primarily, the disability hearing involves the claimant, a disability attorney, and an administrative law judge. In cases where claimants are represented, the majority of claims are won.

However, claimants who do not have a disability representative are denied at up to a sixty percent rate, and even claimants who have representation are sometimes denied as well (the denial rate for represented claimants is lower, roughly 40 percent).

If you are denied by a disability judge, can you still appeal? Yes, in fact there are two levels of appeal beyond the hearing level. The first level of appeal after the hearing level is conducted at the appeals council. The appeals council is located in Falls Church, Virginia and one of its primary purposes is to evaluate decisions made by administrative law judges. When a case is sent to the appeals council, there are three separate outcomes.

1. The case can be overturned and approved. This rarely happens.

2. The appeals council can respond by stating that the request to review the decision of the administrative law judge has been denied. In other words, the appeals council is notifying the claimant (and/or their attorney) that they will do nothing.

3. The appeals council may send a notice stating that the case will be remanded. When a case is remanded, it is sent back for a second hearing. Unfortunately, this second hearing tends to be with the same disability judge who denied the case in the first place. Despite this fact, however, many remand hearings do result in approvals, particularly if the appeals council has notified the adminstrative law judge that they failed to consider a key piece of medical evidence in the disability claimant's file.

The next appeal level that exists beyond the disability hearing level is federal district court. Relatively few cases proceed to this appeal level. Also, district court is the only level in the disability appeal system where the claimant's chosen representative must be a disability lawyer versus being a non-attorney claimant's representative (though, oddly enough, a claimant can proceed pro se, meaning unrepresented).

If the judge denies your claim, is it better to appeal or to start over with a new claim? Very often, a claimant's attorney will advise them to do both. This is because cases that are sent to the appeals council can stay there for well over a year and, very often, a claimant will receive an answer on their new disability claim before they receive a decision from the appeals council on their old claim.

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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