We’ve now reviewed the initial application and the appeal to reconsideration, both of which frankly deny most claimants, and come to the stage of the process where the largest proportion of claimants are approved: The hearing.
It may not actually be the case that more people are approved at hearings than initial applications (in raw numbers), since many people who are denied initially don’t exercise their right to an appeal. Some give up, some just file another new application, and some actually experience medical improvement or improved vocational conditions and return to the work force. But most people who are represented by an attorney proceed from a reconsideration denial to a hearing request.
Starting a hearing appeal is very simple. Once you have applied and been through the reconsideration process without being approved, you file an appeal online, which takes just a few minutes, and begin the waiting game of getting a hearing scheduled and heard. There is a lot to this part of the process, and it’s how attorneys earn most of our fees.
Filing the actual appeal is easy. You file the request on the SSA web site. Here’s the link: Appeal A Decision | Social Security Administration
Click on “Hearing by an Administrative Law Judge” and follow the instructions. You just need to enter your personal information and the date of the denial letter. It asks you to say why you are appealing, and you can type whatever you want, I usually just say something like “The denial was incorrect.” Sometimes I get fancy and say “The claimant is more limited than was found” or “the medical evidence was not properly considered. Oddly, I can’t really tell at this stage of the process what is wrong with the denial, because I don’t get to see the “Explanation of determination” until after filing the appeal. Regardless, it doesn’t really matter what you say here.
The form will ask you for some initial information, namely if anything has changed with your treatment or work circumstances since the application. Usually this is a bunch of “no” answers, but I usually do a quick review before filing the appeal to be accurate if necessary. This information doesn’t really go anywhere – it just gets added to the file for possible review months or years down the line, but the regulations don’t give these statements any weight as evidence. It may be good to list medical information here for considerations of the five-day rule (see later article), but it is unlikely to become relevant if the attorney does their job and gathers your medical evidence before the hearing. In theory entering the information here might be helpful in an appeal, but generally it will not.
You are allowed to submit additional medical evidence and documents with the appeal. If you have new compelling medical evidence, such as a surgical report or a medical opinion, you can submit it now. I often use this form to submit my representation documents so that I am on notice from the beginning, unless I was already representing the claimant before the appeal. After submitting your documents just click through a few confirmation pages and you are done. Save a copy of the appeal receipt in case you ever need to prove you filed it, such as if your appeal is lost and a deadline has passed to file again. It doesn’t happen often, but I have seen it happen. It’s less common now that appeals are online, but glitches can happen.
After the appeal is filed, for a while, there’s little to do but wait. The hearing office will mail an acknowledgment of the appeal and some questionnaires to fill out with updated information; you should fill these out and send them back. Your claim is now entered into a waiting list for hearings to be scheduled, and your attorney will gain electronic access to the file. The attorney may review the file for an early update at this stage, but it is very uncommon for claims to be reviewed before being scheduled. There are a few circumstances in which it becomes possible to jump the line for a hearing, and I’ll write a future post about that. But mostly, now we wait for a hearing to be scheduled, which often takes a couple of years, depending on your specific hearing office. If you consent to a video hearing, you may get a hearing scheduled sooner than waiting for a live judge; and nowadays everyone is automatically considered for a video hearing. Some attorneys don’t like video hearings, but the reasoning for that might be the subject of another post.
Eventually, you will get a hearing notice. The hearing notice must be sent at least 75 days in advance of the hearing, and is often further out than that. The government will not consult claimants to coordinate scheduling the hearing, and it is difficult to change the date without potentially setting it back months again. For that reason, claimants and attorneys alike need to be ready to cancel or reschedule other appointments around the hearing date. This is when the work of the hearing stage appeal really begins.
Your representative will get a copy of the hearing notice as well as seeing a change on a status report indicating that your hearing is scheduled. Depending on the jurisdiction, your rep may receive a phone call about scheduling the hearing. Your rep may or may not know about the hearing before you, so feel free to give them a call to talk about it. We will want to have a conversation and get updated about your medical treatment. We will need to request copies of all of your medical records covering the relevant period, from all sources. We generally only need to reach back to the date when you became disabled, but the government can consider additional records up to just a year back from then. In some rare occasions, we may be interested in reports from old surgeries or older diagnostic findings, but usually we don’t need that. But we want to know about every single medical source you’ve seen since becoming disabled, even sources you only saw once. We will then reach our to each of those sources to request copies of your records. We will also reach our for opinions from your treating providers.
Why do we request the records directly from the sources, instead of just taking your copies? Often, medical sources don’t give patients copies of their actual records. Usually, the papers that you are given at the end of an appointment are what’s called “discharge instructions” and are just generic informational documents to give you as the patient guidance on home care. Discharge papers have no value as evidence in a disability claim – they don’t even prove the fact that you saw the doctor that day, and they don’t tell us any of the key findings of the visit. Providers will sometimes provide the actual records on request, but they usually aren’t even available immediately after an appointment – the doctor may have used a tape recorder to record the notes for later transcription, or there may be paper notes that need to be transcribed or scanned, and there may be lab studies that need to be completed. So we need to request them directly.
When we receive the evidence, we will submit it to the government. (See separate post on the five day rule.) There is a deadline of a week before the hearing to submit all received evidence and put the government on notice about any remaining evidence known of but not yet received. Once that submission is completed, the government will compile the final case file and the attorney may download a copy of it. At this point the attorney will review the full file and may prepare a written summary and legal argument in a brief to the judge. The attorney will discuss your proposed testimony for the hearing with you in advance of the hearing, and then you will appear before an Administrative Law Judge for a medical hearing. Click the next article for an overview of the hearing itself.