Section 1301 - Appeals in General
Social Security regulations establish an appeals process which must be followed if you wish to appeal a decision in your case. Not every administrative action may be appealed (Section1302). The appeals process has different levels; the reconsideration, the hearing, and the Appeals Council review. You must go through this process before a federal court will review your case. You have the right to be represented by an attorney at any stage in your dealings with the Social Security Administration. This is not usually necessary unless you have a problem. You should be represented if you go to the hearing stage of the appeals process. An attorney may charge you a fee, if the amount has been approved by SSA (Section 1310). The legal rules of evidence do not apply in these administrative proceedings. This means you may submit any evidence you wish, even if it is not admissible in a court of law. Go to Contents Section 1302 - What You Can and Cannot Appeal You can appeal only an "initial determination." This is a formal decision affecting benefits, a period of disability, your earnings record, or entitlement to Medicare. Claims for payment under medical insurance (Medicare Part B) are not reviewed by the Social Security Administration. Disputes about such payments are reviewed by the insurance company which administers medical insurance in your state. These cases cannot be reviewed in federal court. Initial determinations include: awards or disallowances of monthly benefit claims; computations and recomputations of monthly benefit amounts; decisions on deductions from benefits and termination of benefits; "representative payee" (Section1414) determinations; overpayment decisions; and determinations about your earnings record. Whenever an initial determination is made concerning your case, you will receive a written notice. This may be an award certificate, a disallowance letter, or a letter explaining the decision. The date of this letter starts the time limit for a request for a reconsideration (Section 1308). Administrative decisions which are not initial determinations include: payment of combined checks (Section 1004); withholding of part of a monthly benefit to recover an overpayment; and authorizing the amount of an attorneys fee. Any administrative action which is not an initial determination cannot be appealed through the normal appeals process, and is not reviewable in court. Go to Contents Section 1303 - The Reconsideration The first step in the administrative appeals process is the reconsideration. You or your representative, such as an attorney, may request it. The request may also be filed by another person whose benefit rights are adversely affected by a determination made in your case. You do not have to fill out the forms yourself. The Claims Representative (Section105) will do this for you, but you or your representative must sign them. If you are appealing a disability denial, you should bring with you the names and addresses of all your treating doctors and hospitals. Be prepared to describe in detail any change in your condition, and how it affects your daily activities. You may submit any evidence you wish. Copies of medical reports and hospital records will be accepted, unless they appear to be altered. Social Security will not request evidence for you. The reconsideration is a review of your record by a member of a different staff from the one that made the initial determination. The request for a reconsideration must be filed within 60 days of the notice of the initial determination (Section 1308). Go to ContentsSection 1304 - The Personal Conference-
Overpayment Cases If your appeal is from a denial of your request for waiver of an overpayment (see Chapter 11), you may have a personal conference instead of a reconsideration. The personal conference is usually conducted by a Claims Representative (Section105) at your local District Office. You may appear (with an attorney if you wish) and explain your case. Any evidence you wish to submit will be considered. The personal conference must be requested within 60 days of the notice of the initial determination (Section 1308). Go to ContentsSection 1305 - The Hearing The hearing is the single most important step in the appeals process. It is conducted by an Administrative Law Judge (ALJ). The ALJ will independently review your case on the basis of the evidence in the file, any evidence you submit, and your sworn testimony. You may appear in person and be represented by an attorney. It is extremely important to do this. The proceedings will be recorded on a tape recorder, not by a stenographer. A hearing assistant may be present to operate the recording system. The administrative law judge may arrange for the testimony of expert witnesses called on behalf of the government. Vocational experts are frequently utilized in disability cases. You may produce your own experts to testify, but you are responsible for any fee. You may also request the ALJ to issue subpoenas requiring the attendance and testimony of witnesses or the production of documents or other evidence. Any such request for subpoenas should be made as far in advance of the hearing as possible (and no less than five days). Notice of the time and place of the hearing is sent to you at least 10 days in advance. If you have a lawyer, call him or her as soon as you receive your notice to make sure he/she has received one. In disability cases it is very important for you to appear in person. The judge will ask you about your limitations, your medical treatments and medications, your work background and your daily activities, among other things. You must be fully prepared to answer these questions. We cannot discuss all the questions you may be asked, but your lawyer will go over them with you before the hearing. Be as specific and complete as possible in your answers, but never exaggerate. The judge will be looking for this. You should be able to describe how much weight, in pounds, you are able to lift and carry, how long you can sit, stand and walk, and whether you have limitations bending, climbing, pushing or pulling. If you suffer from pain, be prepared to describe it as sharp or dull, its frequency and location, what activities produce or aggravate it, and what relieves it. You should describe any side effects from medication, such as drowsiness, nausea, or impaired concentration. The hearing will last about an hour in the usual case. If you wish to submit additional evidence you may request the judge to hold the record open for a week or two. The judge will make a written decision on your case within a month after the hearing. If you win, you will receive benefits about a month later. The request for hearing must be filed within 60 days of the reconsideration denial (Section1308). Your hearing will be scheduled within two or three months. Go to ContentsSection 1306 - Appeals Council Review You may request review of the administrative law judges decision within 60 days. The Appeals Council may also review the decision of its own initiative within the same time. The Appeals Council may deny your request for review, which it does in most cases. If so, the decision of the administrative law judge is the final decision of SSA. If the Appeals Council believes that a significant question of law or policy is involved in your case, it may grant review. In some cases it may allow you or your lawyer to appear before it in Washington, D.C., and present oral arguments. The Appeals Council then will make its decision, which is final. Sometimes cases are referred back to the administrative law judge to obtain additional evidence. This is called a remand. The ALJ will make another decision which again may be reviewed by the Appeals Council. Go to Contents Section 1307 - Court Review The Social Security Act provides that a federal district court has the authority to review any final decision of the Social Security Administration if it was rendered after a hearing. This means you must go through the administrative appeals process before going to court. After the district court reviews your case, it can affirm, reverse or send it back to Social Security for further proceedings (remand). The courts review is limited to determining if the decision is supported by substantial evidence or contains an error of law. If there is any evidence to support the decision, you will lose, unless there is a legal error. For example, if the administrative law judge chose to give more weight to one doctors report (saying you are not disabled) than to another doctors report (saying you are disabled), the court likely will uphold him/her. He/she is considered the "fact-finder," and his/her conclusions will not be disturbed if supported by more than a "scintilla of evidence;" i.e., such evidence as a reasonable mind might accept as adequate to support a conclusion. If there is error in his application of the law to the facts of your case, the court may overturn his decision. Such cases may result in a remand to the administrative law judge to determine additional facts in light of the correct rule of law. A legal action seeking review of a final decision must be filed in federal district court within 60 days. Any legal fees must be approved by the court. Go to ContentsSection 1308 - Time Limits A request for a reconsideration, hearing or Appeals Council review must be filed within 60 days of the prior decision. The time limit for filing a civil action in federal court is the same. The time starts running from the date you receive the notice of the decision. This is presumed to be five days after the notice was mailed. A protective filing statement (Section 402) will stop the running of the time limit for administrative appeals, but not for the civil action. It must indicate clearly an intent to appeal. No formal words are required, simply "I wish to appeal the decision in my case." The time limit for requesting an administrative review may be extended if you had "good cause" for late filing, for example, if you were hospitalized or if you never received the notice of the decision. The time limit for filing a civil action may be extended by the Appeals Council. A request for extension should be filed before the time limit expires. If not, the request may be granted if you had good cause for being late. If a time limit expires on a Saturday, Sunday, legal holiday or a Federal non-work day, the time limit is extended to the next following work day. Go to Contents
Section 1309 - Reopening Closed Cases
A decision which has become final may be reopened and revised for any reason within 12 months of the notice of the initial determination. A decision may be reopened within four years: if new evidence is found after the initial determination; if a clerical error was made in figuring a benefit amount; if the initial determination was clearly wrong based on the evidence in file; if there is good cause. Good cause does not exist where the only basis for reopening is a change of legal interpretation. A determination may be reopened at any time: if fraud or similar fault was involved; if someone else makes a conflicting claim on the same earnings record; for survivor benefits if the worker was presumed dead and is found alive, or is now presumed dead because of unexplained absence for 7 years; if a workers earnings record now shows that a previous denial for insufficient earnings was wrong; if an unfavorable decision was based on a clerical error apparent on the face of the evidence in file; if errors were made involving railroad employment or military wage credits causing duplicate payments or the failure to give proper credit. Go to ContentsSection 1310 - Attorneys Usually you do not require an attorney to handle your Social Security affairs, although you have the right to be represented at any time. You may require an attorney if your claim has been denied or you have incurred a substantial overpayment. Business owners who plan to claim retirement benefits should consult an attorney before they give any statements to Social Security (Section 809). If you wish to consult or retain a lawyer, it is important to find one well versed in the area of Social Security. Few lawyers practice in this field, although the number is growing. The Bar Association in your county may be able to refer you to a suitable lawyer. Many lawyers who practice Workers Compensation law also handle Social Security, especially disability cases. You are responsible for the payment of your attorney's fee. Any fee for services rendered representing you must be approved by the Social Security Administration. If you win your case, SSA will withhold 25% of any past due benefits until an approved fee has been established. Most lawyers will accept a disability case on a contingent basis. This means that no fee will be charged if the case is unsuccessful. When a fee has been approved, SSA will pay the attorney directly out of the withheld benefits. If there is any unused balance, it will be sent to you. If the approved fee is greater than the amount withheld, the lawyer will bill you. Sometimes an attorney may require you to pay him a retainer in advance. If so, he must hold this in escrow (set apart from his own funds) until a fee has been approved. If the approved fee is less, he must return the difference to you. Go to Contents | | | | | | | | | | | | | | | | | | | Copyright © 2006 Stanley A. Tomkiel, III. All Rights Reserved.GoDaddy.comGoDaddy.com is the world's #1 ICANN-accredited domain name registrar! 