If you are denied at your Social Security hearing by the Administrative Law Judge (ALJ), you have the right to appeal the judge’s decision to the Social Security Appeals Council.
To do this, you need to file form HA-520-U5 “Request for Review of Hearing Decision/Order.” You only have 60 + 5 days to get the appeal to the Appeals Council from the date stamped on the judge’s decision (5 days to receive the decision and 60 days to deliver the appeal).
Note: The appeal must be delivered by the 65th day! Unlike filing your taxes, postmarking the letter on the 65th day is not enough. The appeal must be in the Appeal Council’s hands no later than the last day.
There is the possibility of filing late with the Appeal Council’s permission, but that is not something you want to count on.
Here are a couple of things to keep in mind about the appeal.
- The Appeals Council will not hold a hearing on the appeal. The Appeals Council only does a “paper review” of the file.
- This means you must provide all your reasons for appealing and everything you disagree about the ALJ’s decision as early as possible; preferably along with the appeal.
- Because the appeal form does not provide a lot of room to explain what you disagree with, attorneys often add a supplemental brief.
- The Appeals Council mostly looks for legal arguments: did the judge misapply the law? While you can argue that the “facts” in the decision were incorrect (in legal terms: that the judge’s findings were not supported by substantial evidence), the Appeals Council is mostly interested in whether the proper process was followed. Because the Appeals Council is much more legalistic than the earlier appeals, you really should have an attorney helping you.
- The Appeals Council usually will not upset a judge’s factual determinations – even if they would have come to different determinations themselves – if there is a basis for the judge’s findings. This is a critical point. The Appeals Council does not want to step into the judge’s shoes about findings of fact if they can help it. However, if there is a significant factual error which is not supported by substantial evidence, I will include it in my arguments.
- If you think the ALJ misquoted the testimony, or if you want to review the hearing tape for other reasons, you can request a copy of the hearing record. I previously wrote about this here.
Practice tip: When I request the hearing tape, I file the appeal form with a cover letter requesting the hearing tape AND 30 days after the recording is sent to me to provide a supplemental argument based on the tape. Note: the Appeals Council usually grants a shorter amount of time, but it is still useful to ask for 30 days.
If possible, do not wait until you are denied at hearing to hire an attorney. Many attorneys will not take a case if they hired after the hearing because there is very little time to review the hearing decision, become familiar with the evidence, and prepare a legal argument for the Appeals Council.
It is much better to get an attorney before the hearing. If the case needs to be appealed to the Appeals Council, that attorney is already up to speed on the case.