By James Pavisian, Attorney
Parmele Law Firm, P.C.
The disability adjudication process is lengthy. In Topeka, it typically takes two years from filing an application before a hearing with an administrative law judge. There is no guarantee that an individual will win their claim at hearing. In fact, statistically speaking, the chances are around 65% that they will lose. The adjudication process does not end with an administrative hearing. Claimants have the right to appeal an administrative law judge denial to a board of administrative appeals judges. This level of review is the Appeals Council.
The Appeals Council consists of a group of administrative appeals judges (AAJ). AAJs differ from administrative law judges in that AAJs do not fall under the Administrative Procedure Act (APA). This is a critical distinction. The Social Security Administration cannot manage administrative law judges because the APA requires administrative law judges to be independent. AAJs, on the other hand, are not. The Social Security Administration can manage them, unlike administrative law judges.
The purpose of the Appeals Council is to review decisions and determine if the administrative law judges followed agency policy. For the most part, this entails reviewing requests for review of unfavorable decisions. When reviewing a decision, the Appeals Council can affirm the decision. This means it finds that the administrative law judge did not commit legal error. It can also remand the claim. A remand is where the Appeals Council identifies a procedural error and awards the claimant a new hearing to fix it. Finally, the Appeals Council can reverse the decision and pay it.
Of its three powers, the Appeals Council most often affirms decisions. In fact, the most recent published statistics reveal that the Appeals Council remands 13% of claims, pays 1% of claims, and affirms 86% of claims. Just four years ago, the Appeals Council remanded closer to 20% of claims. It has, therefore, become increasingly more difficult to secure a remand.
The amount of time to get a decision is not quick. In my office, it is most common to receive a decision from the Appeals Council a year to a year and a half after filing the appeal. In the past, this was not a significant problem because the claimant could file a new application while the appeal was processed. A few years back, the Social Security Administration amended that process. Now, an individual can either appeal or file a new application but not both. This means claimants are waiting a year to a year and a half for a 14% chance of getting a new hearing.
Appeals to the Appeals Council are risky and require a lot of patience. In my practice, I do not generally recommend an appeal unless there is a significant legal error or if I want to take the claim to federal court. The wait time and low probability of success do not make it an attractive option. That said, every claim is different. It is critical to discuss your options with an experienced attorney. He or she will be able to review the decision and help you figure out if an appeal is appropriate. More often than not, an attorney may tell you it isn’t for many of the reasons explained above.