You were denied social security disability at the hearing level or were granted only a partially favorable decision. Although disappointing, it’s not the end of the world. You have options. The next step in the appeals process is requesting the Appeals Council to review the ALJ decision. Considering whether to request review depends on a variety of factors such as time, expertise, and why the ALJ denied the claim. Determining which issue to base the appeal on is an important decision. The Appeals Council has limited time and resources and must determine where to spend that time and valuable resources. Data shows the Appeals Council remands most often on 10 particular issues. It is worth your time to focus your appeal on these issues.
Recently, the Appeals Council remanded most ALJ decisions on 10 issues:
1) Treating source opinion rejected without adequate rationale;
2) Inadequate rationale for symptom evaluation;
3) Consultative examiner’s opinion given inadequate rationale;
4) Mental limitations inadequately reflected in the RFC;
5) Incomplete and/or inadequate record developed;
6) Nonexamining opinions such as DDS determinations given inadequate rationale;
7) VE testimony and DOT not reconciled;
8) Exertional functional limitations not accurately reflected in the RFC;
9) RFC-Other; and
10) Nonexamining source opinion accepted without adequate rationale.
Notably, since 2015, rejecting a treating source opinion without adequate rationale has been the number one (1) issue for Appeal Council remands. This is an issue worth fighting for.
We have successfully argued Appeals Council remands on a variety of issues. Sometimes, an ALJ and/or the decision writer makes it easy for us to argue a legal error was made when evidence is ignored or minimized in the decision. Even better, ALJs will acknowledge evidence in the decision; however, they apply SSA law and policy incorrectly making it a legally indefensible decision. Recently, we won Appeals Council remands on the following issues:
The ALJ did not properly apply listing-level symptoms at Step 3 despite bringing it to the ALJ’s attention in a prehearing brief.
An ALJ found Claimant’s mental impairments were not severe at Step 2 despite an SSA consultative examiner finding the impairment(s) severe. ALJs are legal finders, not medical experts.
The ALJ denied a claim at Step 2 but did not proceed with the 5-Step sequential evaluation, easy remand!
The ALJ found Claimant could perform jobs at Step 5 that were beyond the ALJ’s own RFC and DOT. That was a fun Appeals Council brief to draft!
The audio of the hearing was inaudible. How often is a hearing recording inaudible with telephone and video hearings? For some offices, a lot. Keep this issue in mind, it’s an efficient appeal issue. SSA must provide a full and fair hearing.
Although it is a gamble when requesting an Appeals Council review, focusing on the right issues and legal errors increases your chances of winning a remand. Drafting a focused Appeals Council brief increases the chance of a remand even more.