Losing Your Hearing – Appeals Council and Federal District Court Review

I am Sara L. Gabin, a Social Security Disability attorney who has been representing residents of Portland and nearby communities over 30 years. If you have lost your hearing, and if you are unrepresented or if your representative does not go to the Appeals Council or federal district court, have an experienced lawyer look at the record and explain your best options going forward.

If you lose your hearing, know that you might still have a very good case. I have observed that many cases that are lost can still be won after losing.

There is little question that since approximately 2012 there has been a sharp decline in the number of claims won at hearing. More cases are now lost than are won at hearing. Most often the problem, in my view, has more to do with a change in Social Security Administration culture with a corresponding change in the attitude of the hearing judges than with the actual merits of a claim. So it is always worthwhile to go over what happened with a lawyer experienced with Appeals Council and federal district court work.

Continuing to appeal is always a test of emotional stamina, but often this is the path winning requires a claimant to follow. You will continue to wait another two to three years during post hearing appeals to the Appeals Council and federal court. Depending on the facts of your case, it may serve you better to reapply, especially if the medical evidence is flimsy or if you have complied poorly with treatment.

If you lose your hearing, Appeals Council Review is the next level of appeal. It would be nice to say something good usually happens at the Appeals Council, but that is not possible. Appeals Council Review is a mandatory but mostly useless process that a claimant must go through to get to federal court. The Appeals Council affirms approximately 83 percent of all unfavorable hearing decisions. And, the Appeals Council can take over a year before it acts, even if only to affirm the unfavorable decision. But, you may still add to the record if you have good evidence that relates to your condition before you lost your hearing. I re view the record meticulously to discern whether outstanding evidence exits or whether new but relevant opinions can still be acquired.

If you continue to lose at the Appeals Council the next level of appeal is federal district court review. The Appeals Council is part of the Social Security Administration (SSA) and the SSA is a part of the executive branch of government. Federal court, on the other hand, is an entirely separate branch of government, known as the judicial branch. This gives the court an independent perspective on whether the Social Security Administration in your case has applied properly its own rules and regulations. This separation of government also allows the court to take an objective look at whether the SSA found a claimant not credible for specific, clear and convincing reasons, and whether it discounted treating doctor opinion for specific, legitimate, clear and convincing reasons.

In my experience, if the evidence is good, especially the medical evidence, and if the claimant has been a good claimant who has complied very well with treatment and has described symptoms and activity levels consistently, the chances of getting a good outcome in federal court are greater than at hearing or Appeals Council review. However, it takes at least year to complete this process. And, if you have been treatment non- complaint, your chances of winning in federal court are slim. Treatment non-compliance means not following medical advice, missing appointments, running out of medications early, stopping medications without a doctor’s permission, using street drugs or other drugs you doctor has not prescribed, and using alcohol when you have a history of alcoholism.

Strict deadlines also apply to your appealing to the Appeals Council and Federal District Court. So call a lawyer right away to avoid missing a deadline and losing a winnable case. The “Unfavorable Decision” from your hearing contains a 60-day deadline from the day you received the notice. You are presumed to have received the notice five (5) days from the mailing date. The same deadline applies to the notice from the Appeals Council.

As a Social Security Disability lawyer practicing since 1981, I have represented disabled persons in Portland and elsewhere in Multnomah, Clackamas, Washington and Yamhill Counties at all phases of the appeals process. I am dedicated to helping you win the benefits the medical evidence and your personal credibility show that you are entitled to receive. Contact Sara L. Gabin at (503) 620-3171 or online to discuss your case. Free consultation.