If the Social Security disability judge denies your case and sends you a decision marked “unfavorable” you will feel angry, offended and frustrated. After all, disability cases can take two to three years from the date of your application to the date you receive the denial.
During that time, you have been unable to work, most likely struggling financially and basically putting your life on hold waiting for a decision in your case.
Now, after talking to you for around 45 minutes (the length of a typical hearing), the judge has decided that he/she just doesn’t believe your testimony about the severity of your symptoms, or how these symptoms would likely impact you at a simple job.
Even worse, under recent Social Security rules, the judge is allowed to discount the opinion evidence from your long time treating doctor(s) in favor of a medical-vocational assessment by a SSA staff doctor who never even met you, or a doctor who met you for an hour as part of a consultative evaluation.
If you should get an unfavorable decision, what should you do?
First, remember that you only have sixty days to appeal – if you miss the sixty day deadline you would have to start over, and, more importantly, you could not argue for an onset date prior to the date of the unfavorable decision. In many cases, you might not have enough work credits to pursue an SSDI case if you refile.
Second, you have to decide whether to appeal to the Appeals Council or to file a new application. You cannot do both at the same time.
Third, if you do appeal to the Appeals Council, you (and your attorney) will need to identify a mistake of analysis in the hearing judge’s decision. It will not be enough that the decision stated you completed three years of college when you only completed two, or that an MRI was performed on August 5, and not September 3. Mistakes like these are rarely material to the judge’s decision and the Appeals Council will not remand a case because the judge made an error that did not factor into the reasoning behind his decision.
I have seen cases where the Appeals Council declined to reverse the judge even when the mistake was, to my eyes, significant. In my experience the Appeals Council is looking for errors in the judge’s analysis.
For example, I recently won a remand in a case where the judge found that my client, age 50, had the residual functional capacity to perform light work, but the hypothetical question the judge posed to the vocational witness asked about an individual who could perform light work with significant modifications. The vocational witness identified several sedentary (sit down) job but none in the light category. If my client was not able to perform light jobs, she would meet one of the grid rules. Since the judge did not consider the impact of additional restrictions on my client’s light capacity, his analysis was faulty. The Appeals Council also noted that the judge did not consider a 3rd party adult function report, completed by a person who knew my client in a professional setting for many years.
Statistically the Appeals Council only remands (sends back) around 10% of appeals filed. This means that 90% of cases appealed to the Appeals Council are rejected. Compared to the approximately 45% national approval rate at the hearing level, you can see that your odds are not great at the Appeals Council. However, before you forego the Appeals Council option, have a disability lawyer review the unfavorable decision (but don’t wait until day 45 after your receipt of the unfavorable to start looking for an Appeals Council lawyer.
If you received an unfavorable hearing decision and would like a case review, you can ask for it here: https://bit.ly/Contact-Jonathan and make note that you were denied at hearing and want to consider appealing to the Appeals Council.
Having been on SSI 8 years, then to have SSA tell me my spouses income went up, her only income is SSDI. Then a letter comes from SSA I get an over payment letter, I owe them $6,750.00, and to pay them back NOW. First SSA knows we don’t have a pot to piss in, or a window to through it out. SSA turns me off December 2019. I was getting about $600.00 a month. SSA stated My spouses income went up starting April 2018 , My son’s 15, and 16 years old and a son in AZ going to the University of Advance Technology, He was 18. My son’s in high school went to work as bag boys, They wanted their own bank accounts to deposit their work checks. My wife brought them to our bank we’ve had for 40 years and opened their own bank accounts. In the SSA notice my three son’s bank accounts were used to put me over the SSA resource limit for SSI. I thought we run out of money by the 25th of any month. on the first we had either 10 bucks or my 600 and 10 bucks. I was told in a SSA decision I was at fault that I should have known of my wife’s bank accounts, thats right my boy’s bank accounts, needed an adult on them. something I should have known. That adult is my wife, When they deposit their checks, it by the magic of SSA becomes mine in full. between april of 2018 to current there were 9 months my resources went over $3000.00, The 600 they paid me was taken back, SSA also reduced the 600 they paid me, to a different amount each month, from 300 to 500 each month instead of the 600 they had paid me. so in total the over payment was 6750.00, SSA said I should have known. I had no idea my 15, and 16 year old’s money was mine once they put it in the bank. SSA claims my wife had assess to their money because her name is on their account. How the heck would a rule like that be written. My senator stated they are looking at accounts that may have 10,000 dollars in them. If there are rules written for the people at SSA, that are there for them to tell us what we are to do in happenstances like this, and they fail to tell us, who is in the wrong? Does anyone know this acronym SSA made, [SEIE] neither did the SSA employee’s , It stands for Student Earned Income Exclusion. An attorney told me kids under 18 have no responsibility to support their family. He could not give me an answer when their money crosses the threshold of the bank tellers, their money becomes a gift to the family, because my wife has assess to it , Here is a law that is made by people with silver spoons stuck in their mouths from the day they were born. What is the difference if my boys keep their money in their dresser or in the bank. If it’s in the bank SSA can cut the SSI of an eligible parent, when their bank accounts all added up go over 3 grand. In my case their money also lowered the amount I was to get and currently get. I went into the local SSA office and wanted to know what lowered my benefit, He could not do it, I went to one month were they reduced the 600 they had paid to the 489 they reduced it to. He could not do it. I then asked him about the SEIE. He had no idea, I told him the Student Earned Income Exclusion, he said it is for disabled children who are in school under the age of 22. { I came across this rule where we can have bank accounts that can have both non excluded money and your excluded money, they spell it out using the amounts of money spent on a hotel for a week end } I would bet there is not one SSA person that can explain what is excluded money. Or what happens when excluded money and non excluded money goes over the end of the month into the first of the month. Or what happens to accounts that only have excluded money on the first minute of the new month, when the amount of excluded money goes over the SSA rule of 3k in resources, in their bank accounts for SSI recipients. Is the Student Earned Income Exclusion Excluded money. When children work and are not in school their income reduces the children living allocation, which is the difference between the maximum a couple can get from SSI and what the maximum an individual can get , That is $392.00 in 2020. When your kids do not work SSA reduces the family income by 392 for each kid you have. when the family income goes below 392 in 2020 the SSI recipient can receive the individual maximum, $783.00. There is one caveat I have not had non out of three of SSA employees that knows how to use a simple calculator. Or it could be non out of three knows the SSA laws. I begged the ssa person what were the numbers SSA used to reduce the SSI I had received to the amount they reduced it to. He could not do it. I told him the months that went over 3K in resources, the money my kids made went over 3K. To consider that out of your calculation, Once in the bank the money is a resource, what did SSA use to reduce the amounts they had paid me. after 15 minutes of a deer caught in head lights as he looked at his computer screen he said he would have to calculate the entire page and send me the results. He placed to the months they didn’t reduce to zero, back to what they had paid me. All I wanted were the numbers they used to figure what they paid me. I told him I feel as though I should be getting the personal maximum. They would not give it to me. To add insult to injury They dropped my SSI to 27 dollars, that is the differance between what my wife gets from SSDI and a couples maximum for SSI. They have no idea as to the laws SSA made, They use a few small parts of the law and destroy our lives with what they know. The notice I got from the guy that moved the amounts they reduced to the amounts they had paid me. He stated I should have known when my wife hooked my boys up with bank accounts that their money was now mine. He told me nothing about the POMS SI 01140.205 that shows me how to handle the kids account so their money was never mine and what my wife had to do to Have SSA not use their money as mine. She had to take her name off the account, Then to show all the was never ours they want all the deposits and withdraws from all their accounts. 3 boys 2 savings accounts and 3 checking accounts. Now that could all be a wash if they understood what excluded money is, because excluded money can commingle with non excluded money, in bank accounts. I could not find anything more on the excluded money commingling with non excluded money in our bank accounts. Here is the only place I see where SSA employees need to pull information out of the air. Given they are our representative to the world of SSA, they are called client representative. Let me add one thing they reduced our income, my wifes SSDI 200 dollars the allocation for our children. That allocation should be $782.00 which would give me the maximum for an individual $783.00. They refuse to turn over the numbers they use to give me the now $227.00 of which they are taking $78.33 out for the over payment. What the heck am I suppose to do, Wait the year it will take to see the Administrative Law Judge. Personally I don’t see that going anywhere. If they knew the law they would make the CR’s learn the laws of SSA.
Jonathan:
With the Corona Virus Crisis ongoing, how do you see the Trump’s Administration’s intent to get rid of the SSDI Grids? Also, I am 65 years old, on Disability (won my case with a Legal Asst. based on the Vocational Grids). What are the chances of me getting a CDR at this point? Perhaps the Corona Virus Crisis might make the Trump Administration help people on Disability. Your thoughts?
Steve at age 65 I think it is very unlikely that you will face a CDR or termination action.
Any advice on ALJ Hearing by phone due to Coronavirus pandemic?
Kym, we have to prepare differently because the interpersonal dynamics have changed. I find that I spend a lot more time with my pre-hearing conferences because I have to work with my clients more about being very specific in their verbal testimony. Non-verbal cues are no longer part of the equation.
I received an unfavorable decision, the judge seems to have employment history wrong. The whole decision seems biased as a result. Should I write him and ask him to reconsider?
Mr Ginsberg has not been able to take my case (yet), but I am daily in the process of releasing the (big firm) I once thought of as best representation, to my finding out the hard way…(ive been with this firm well. Over 2 years and have yet to be assigned an attorney. I have a court date for June and havent a clue if they have ordered Drs reports as i have been requesting for the last 2 years. Mr Ginsberg responded himself at my first email, after i watched a few of his videos and asked a couple questions. Dont be like me with the feeling of impending doom when you dont have to have these concerns but feel confident your represented by someone with knowledge and compassion and will get the necessary things to win your case. I can only wish i had done alittle more research . Thank you Mr Ginsberg for all your attention thus far and hopefully i can have you reppresent me going further. Sincerely, Susan Van Kleeck
My first hearing was denied by the Judge. SS disagreed with the decision and they done a full detailed investigation into my case, SS contacted the ALJ and I now have a hearing with the same ALJ September 3rd I believe, I’ll double check that.
My conditions have gotten worse and I am having another back surgery Aug. 10th due to failed back surgery and inserting a Spinal Cord Stimulator.
What do you believe my chances are that I get approved by the same ALJ
Hard to say. I have never understood why the AC sends the claim back to the same judge. I would look at the AC remand carefully – sometimes you get the sense that the AC is sending the judge a message and sometimes the remand issue is more technical in nature. Generally speaking my experience has been that most of the cases that are remanded by the AC end up getting approved but that is not a given by any means.
I am so very Thankful that i landed 0n your website. you are a very smart man, you have really helped me in so many ways. i have a telephone hearing Nov 3 and i only have spoke to my lawyer one time. he walked me through it but you explained it all so well, and exactally what i needed to know to win.. Again, THANK YOU for your help im gonna need it.
Thanks for the comment Brenda – how did the hearing go?