HOW TO APPEAL A DISABILITY DENIAL

Unfortunately, denials are very common in Social Security disability. In the state of Alabama, Social Security will deny 71 percent of disability applications--just over 7 out 10. Many of these decisions are certainly incorrect and the denied claimant is entitled to benefits. So, what should you do if you get denied?

The answer: Appeal within 60 days of the denial. The law provides a 60 day window to file and appeal--plus an additional 5 days for mailing. If you wait longer than the 65 days, no appeal is available and you have to start over.

Who should file your appeal. You are not required to have an attorney/representative to file an appeal with Social Security. However, longstanding research shows that you are more than twice as likely to win your appeal with a lawyer than if you represent yourself. The most recent statistics I have seen say this:

31 percent win without a lawyer or advocate.

60 percent who have a lawyer/advocate win.

What Are the Steps and Time Frames of an Appeal?

Appeals now have 2 stages:

1. The first step is called "Reconsideration." The same agency which denied the claim gets to reconsider or review their decision. This takes a few months. Very few claims get approved at this step.

2. The second step is a Hearing before an Administrative Law Judge (ALJ). You and your legal counsel appear before the ALJ to present the facts of your case, make legal arguments favoring your case and present any witnesses you want to testify. You may also submit new evidence for the ALJ to consider. This is the step with the highest approval numbers--your best chance to win and get paid.

WHAT CAN YOUR LEGAL COUNSEL DO FOR YOU AT A HEARING?

Your attorney/representative will decide the best way to approach the hearing: Can you win using a Listing argument, a Grid argument, or a Step 5 argument--proving that there is no job in the US economy that you can perform? Your representative will gather additional evidence to support your argument. He/she will also obtain written opinions from your doctor(s) to satisfy Social Security's burden of proof (which is very high). Your counselor will also prepare you for the hearing: What questions will you have to answer? What points you should make? Traps you should avoid. You will go into the hearing well prepared because your attorney has taken time to prepare your case--but also to prepare you for what lies ahead!

Hearings use a language all too unfamiliar to claimants: When was your DLI? How did you arrive at your AOD (Alleged Onset Date)? What medical exhibits support Listing 2.06 (or other Listing)? Which Medical-Vocational Guideline (grid) directs a finding of disability? If there is any drug or alcohol abuse in your background, is such abuse material to the claim? Or should it be ignored as "immaterial." Why?

Your representative will probably know the judge hearing your case. Thus, he/she will know the judge's demeanor, tactics, likely questions--and most importantly--what the judge wants in order to approve the claim and the back payments.

Finally, don't miss the deadline! If Social Security has given you an unfavorable decision, you have 65 days to file the appeal. This deadline usually cannot be extended. If you miss the deadline, your case will be dismissed.

WHAT TO LOOK FOR IN AN ATTORNEY/REPRESENTATIVE

1. Look for someone with years of experience representing Social Security claimants.

2. Seek out someone who won't charge you any fee unless you win your case and receive back payments. (This called a "Contingency Fee Agreement").

3. Find a representative who is accessible: Can you visit the local office and meet the attorney before you hire him/her? Does he/she return phone calls? How does the attorney score when it comes to answering your questions and explaining the process? You wouldn't believe how many people call me to say, "I have a lawyer but they won't return my calls."

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Sponsored by the advocates at

THE FORSYTHE FIRM

7027 Old Madison Pike NW

Huntsville, AL 35806

(Across from Bridge Street)

PHONE (256) 799-0297