Introduction to Social Security cases

By Eric Buchanan

Levels of Appeal for Social Security Cases

1.  Initial Application:

The claimant must sign a written application (except in very unusual circumstances) and complete paperwork explaining his or her disability and listing medical treatment.  The case is sent to the state DDS (Disability Determination Service) to be evaluated under Social Security's rules.  If a claimant is denied at this step, the claimant usually has 60 days to appeal to the next level.

2.  Reconsideration:

The claimant's case is sent back to DDS to be "reconsidered."  If a claimant is again denied at this step, the claimant has 60 days to appeal to the next level.

3. Hearing level:

The claimant's case is sent to the local Office of Disability Adjudication and Review (formerly the Office of Hearings and Appeals), where the case is assigned to an Administrative Law Judge (ALJ) who will hear the case.  The ALJ has a duty to ensure unrepresented client's cases are fully developed, but ODAR will usually rely on an attorney to provide medical evidence for the file. The ALJ will issue a detailed, written decision.  The ALJ will also close the record, and it is very difficult to get any additional medical evidence in to the record once the ALJ's decision has been issued.   If it is unfavorable, the claimant has 60 days to appeal to the Appeals Council by filing a Request for Review. (If the same case has previously been remanded by the Appeals Council to the ALJ to deadline is only 30 days to file written exceptions to the Appeals Council).

4.  Appeals Council:

This is an administrative appellate level that is made up of "administrative judges" who are not full ALJ's; however, they review the file and any written arguments made.  They may also consider new evidence, but there must be "good cause" for not having submitted it earlier.  This level can take as much as two years, and occasionally more.  The Appeals Council may reverse the ALJ and issue a fully favorable decision, or remand the case to the ALJ for further proceedings.  In most cases, the Appeals Council issues a form letter denying the Request for Review, and the ALJ's decision becomes the final decision of the Commissioner.  If the Request for Review is denied the claimant has 60 days to seek judicial review in Federal Court if the case merits that level of review.

5.  Federal Court review:

The standards for review by a Court are limited. See 42 U.S.C. 405(g).  The Court may only overturn the Commissioner's decision if the Court finds the decision was not based on substantial evidence or that the Commissioner made an error of law.  There is no de novo review.  The Court is empowered to reverse the Commissioner's decision, but in many cases the case is sent back for a new hearing.  The Court will also very often uphold the Commissioner's decision. 

6.  Court of Appeals:

If a case is denied at the District Court level, a claimant may proceed to the Court of Appeals. This is a very rare case, and few cases are won at this level.  Recent statistics have shown an affirmance rate of Social Security denials as high as 98%.

Social Security's five step sequential evaluation process

At each level of the Social Security appeals process, the Administration considers the following steps to determine if a claimant is disabled (See 20 C.F.R. § 404.1520 for Title II cases (i.e. disability insurance benefits) and 20 C.F.R. § 416.920 for Title XVI cases (i.e. SSI cases): 

§ 404.1505 Basic definition of disability. 

1. The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 

1.  Is the claimant working?

This is technically stated as: "Is the claimant engaged in substantial gainful activity (SGA)?" § 404.1520(b) and § 416.920(b).   SGA is in turn defined as earning above the cut-off set out in the regulations, currently approximately $850 per month.

2. Does the claimant have a severe impairment?

Basically, a severe impairment is a medical or physical impairment (or combination of impairments) that is supported by objective evidence that would "significantly limit" a persons ability to do basic work activities.  The threshold for this step is relatively low, as long as there is objective evidence of the impairment. 

3. Does the claimant meet or equal a listing?

20 C.F.R. Pt. 404, Subpt. P, App. 1 is a part of the Social Security Regulations that contains a list of certain medical conditions that result in an "automatic" finding that a claimant is disabled.  These are usually very hard to meet, because even when a claimant is extremely ill or disabled, often their problems have not been documented to the extent that is required by the listing. 

4. Can the claimant perform his or her past work?

A claimant is found to not be disabled in he or she can perform "past relevant work."  This is usually defined as work performed within the last 15 years, and it must have been performed long enough for the claimant to have learned the job.  The tricky part of this step is that a person can be found to be able to do the "kind" of past work  they have done. 20 C.F.R. § 404.1560(b).  The distinction there is that a person's individual job may have had more demanding requirements than that particular job usually has in the economy, so that a claimant can be found "not disabled" if the claimant can't do the same job done in the past, but can do the job as it is usually performed.

5.  Can the claimant perform other work?

If the claimant can't do past work and all the other steps above are satisfied, then the burden shifts to the Social Security Administration to show the claimant can perform other work in the economy.  The majority of cases are decided at this step.  The Commissioner may meet his burden by relying on the testimony of a VE or by relying on the "Grid" regulations. 20 C.F.R. Pt. 404, Subpt. P, App. 2 (the "Grids") are a set of charts found in the regulations that consider a persons age, education, previous work experience, and previously acquired skills and dictate a finding of disabled or not. 

Disability claims administered by the Social Security Administration

SSI (Supplemental Security Income) - For individuals under age 65 who become disabled.  Claimants must meet certain poverty requirements before their claim will be considered (i.e., no more than $2000 in assets for individuals, $3000 for couples, excluding the home where they live and necessary cars, etc.)  Benefits are adjusted for income.  Individuals eligible for SSI also get Medicaid.

Children's SSI - Families with disabled children that meet certain poverty requirements; if they do, a child may receive SSI if he or she is disabled.  The test for whether or not a child is disabled is different, and usually harder to meet, than for adults.

DIWC (Disabled Insured Worker's Claim) - Disability program for adults who have worked enough to have "insured status" under the Social Security System.  For disability, a worker must have worked above a minimum amount 5 out of the last 10 years (as measured in quarters of years).  A person does not have to file before their work credits run out, but he or she must be found disabled before the work credits run out.  Individuals who are eligible for insured disability benefits get Medicare.

DIWW (Disabled Insured Widow's/Widower's Claim) - An individual must be 50 years old, be found disabled, and have been married to a person who was insured when that person died.  The widow/widower must also become disabled within 7 years of their spouses death.  There are special rules when the spouse draws benefits on behalf of children that extends the 7 years, so it does not start until the children are grown.  If a prior divorced spouse dies, the disabled person must have been married to the deceased spouse seven years.  If the Widow/Widower is 60 or over, and meets the other requirements, then he or she does not have to be found disabled.

DAC (Disabled Adult Child) - A child of an insured worker can draw benefits if he or she is found disabled before age 22 (or found to have become disabled before age 22 if the or she applies later).  The child's parent must have died while insured or become disabled and drawing insured status.  A DAC who is drawing benefits will lose them if he or she gets married to someone other than another person drawing insured disability benefits.

SSDC (Supplemental Security Disability Claim) - This is not a separate type of claim, but it is the name of the type of claim for an individual worker who is both insured and meets the poverty requirements for SSI.