The Appeals Council

Welcome to Season 1, Episode 19 of Winning Isn't Easy: Navigating Your Social Security Disability Claim. In this episode, we'll dive into the complicated topic of "The Appeals Council."

Join host Nancy L. Cavey, veteran disability attorney, as she breaks down one of the hardest parts of the Social Security Disability process: being denied by an Administrative Law Judge. You filed your claim, shared your story, went to the hearing - and still, the answer was no. It’s frustrating, even defeating. But it’s not the end of the road. In this episode of Winning Isn’t Easy, Nancy explains what comes next: how to take your case to the Appeals Council, and when it may be time to go all the way to Federal Court. You’ll learn how the Appeals Council actually works - what it can and can’t do - plus what happens if your case is upheld, reversed, or sent back for review. She also covers your legal options if the Council denies your appeal and why experienced representation is critical during this complex, high-stakes process. At this stage, it’s not just about fighting harder - it’s about fighting smarter. If you’re feeling stuck after a denial, don’t give up. Tune in to learn your rights, your options, and how to take back control of your claim. Let’s get into it.

In this episode, we'll cover the following topics:

1 -  What Is the Appeals Council - and Should You Appeal?

2 - The Appeals Council Upheld the Denial - Now What?

3 - Why Legal Strategy Matters at Every Stage of Appeal

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


Listen to Our Sister Podcast:

We have a sister podcast - Winning Isn't Easy: Long-Term Disability ERISA Claims. Give it a listen: https://wiedisabilitypodcast.buzzsprout.com


Resources Mentioned In This Episode:

LINK TO YOUR RIGHTS TO SOCIAL SECURITY DISABILITY: https://mailchi.mp/caveylaw/your-rights-to-social-security-disability-benefits

FREE CONSULT LINK: https://caveylaw.com/contact-us/


Need Help Today?:

Need help with your Social Security Disability claim? Have questions? Please feel welcome to reach out to use for a FREE consultation. Just mention you listened to our podcast.

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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals.

Transcript

Nancy Cavey [00:00:00]:
 Foreign welcome back to Winning Isn't Easy. Social Security Disability Benefits. This is a podcast where we break down everything you need to know about navigating the Social Security disability system. I'm your host, Social Security Disability, and ERISA disability attorney, Nancy Cavey. Now, before we get started, I've got to give you a legal disclaimer. The Florida Bar association says I've got to tell you that this podcast is not legal advice. But now that I've said that, nothing will ever prevent me from giving you an easy to understand overview of the Social Security disability claims process, the games that are played during it, and what you need to know to get the disability benefits you deserve. So off we go.
 
 Nancy Cavey [00:00:54]:
 Now, in our last episode, we talked about the Compassion Allowances program. And today's episode, we're going to switch it up. If you have filed your claim, got denied, filed a request for reconsideration, got denied, had a hearing in front of a judge and got denied, you've been through the ringer. So what do you do now when your claim gets denied by a judge? It really feels personal. I mean, you have been through the ringer, you've been through the process. It's been years. You've been, you've shared your story, you've shared your struggles, you've shared your medical records and still Social Security says no. But I don't want you to give up.
 
 Nancy Cavey [00:01:37]:
 In today's episode, I'm going to talk about what happens next, specifically taking your case to the appeals council and if needed, all the way to federal court. What I'm going to be doing today is to break down some key segments of this process. First, I want you to understand what the appeals counsel is, what it can and cannot do and won't do for you if your case is upheld. In other words, the denial is upheld. What happens next? And in other words, what are your options when the appeals counsel says no and why you really need expert legal help to survive and succeed in the appeals process. Now, I know you've been denied. I know you're wondering if it's worth the fight, whether you should give up. But I want you to stay tuned.
 
 Nancy Cavey [00:02:31]:
 I think you owe it to yourself and your future to hear this. And I'm going to be covering three things. What is the appeals council and should you appeal? Number two, if you lose at the appeals council, you know what happens next, next in the process, and then why Legal strategy matters at every stage, not only of a case, but of an appeal. I want to take a break for a moment. Before we get into this episode, and why don't you come back with pad and a pencil so that you can take notes? I want you to kind of leave your emotions aside for a moment, and I want to talk with you as if you were my client and we had unfortunately lost your case. Okay, let's take a break.
 
 Speaker B [00:03:19]:
 Are you considering filing for Social Security disability, or has your claim been denied already? Either way, you require a copy of your rights to Social Security disability benefits, which will cover everything you need to know about the Social Security disability claims process. Request your free copy of the book@kvlaw.com today.
 
 Nancy Cavey [00:03:42]:
 Welcome back to Winning Isn't Easy. So let's talk about the Appeals Council and what's going to be happening here. All right, so what's the Appeals council, and should you appeal? You've gotten this letter, you opened it up, and you thought you were going to get a fair rule decision, but unfortunately, the judge has ruled against you. And as you read it, you getting angry, you're getting upset. You know, the judge didn't believe you. The judge didn't think your symptoms were severe or that your testimony was not consistent regarding the intensity, duration, and frequency of your symptoms or a myriad of other reasons. When I read these decisions and I've represented my client, I'm not happy either. And I tend to have a little bit of anger, if you will.
 
 Nancy Cavey [00:04:33]:
 But then I say, okay, I've gotten past the anger. Now let us think like a lawyer. So I think that you have options. And to explain those options, I want to talk about what the Appeals council is, how it works, and whether it might be the right move for you to take an appeal to the Appeals Council. So let's understand the pass that you have after a claim is denied. Now, option number one is to just walk away and say, I'm done. Now, that is an option that I don't necessarily encourage unless we have a problem with something called the date last insured. In other words, your insured status has ended and the judge has adjudicated or decided your claim, and they've decided you're not entitled to benefits.
 
 Nancy Cavey [00:05:31]:
 We really can't file a new application because your quarters of coverage have expired. Your insured status has expired, and your only option at that point is to file for SSI if you meet the assets test. So the other option, and the option that I sometimes discuss with my clients, is, okay, you can walk away from the appeal, and because you're still insured, we can file a new application, and that application date is going to be the date after the decision of denying your claim. And what becomes important is developing the appropriate evidence from that date forward through the particular claims process and then through the date last insured. That would be the time frame in which you really have to. You must develop the medical evidence to establish that you meet the five step sequential evaluation. Now, I think there are lessons to be learned in that situation based on the denial. It might be that you didn't really give a good history of symptoms and functionality, or you would say things like, I'm fine, when in fact you really weren't fine.
 
 Nancy Cavey [00:06:44]:
 You were just trying to be Superman or Superwoman. And it might be that you got inconsistent treatment or you weren't compliant with treatment, or you really didn't get treatment by a specialist. There are all sorts of lessons, unfortunately, that can be learned if a claim is denied. That will help when you file a new application. But we're here to talk about filing an appeal with the Social Security Appeals Council. Now here's the catch. You cannot file a new application and at the same time file a appeal. That used to be that way, and I loved it because I was going in both directions.
 
 Nancy Cavey [00:07:27]:
 But for many, many years we've not been allowed to do that. So you have to think this through because if you file a new claim, you're giving up all the back benefits that were lost in the original hearing. Okay. Now with that comes back pay. That can be a significant amount of money and with that can also become your eligibility for Medicare benefits. Remember, you have to be on Medicare. I'm sorry? To qualify for Medicare, you have to meet the five month elimination period for Social Security and Beyond benefits for 24 months. If you get your Social Security benefits Regardless, there's a five month waiting period.
 
 Nancy Cavey [00:08:12]:
 So it's five months plus 24 months and then you become eligible for Medicare. Now, you may have waited forever to get this hearing and lost it. And if you have to start all over again, you're going to lose potentially those back benefits and you're going to lose that eligibility for Medicare that you keep eligible for because of the passage of time. Okay, so there's some money and benefits that have to be thought through in deciding whether or not you are going to take an appeal to the appeals council or to start a new application. So what does the appeals Council do? It's a body within the Social Security Administration that reviews decisions made by administrative law judges, but they don't take every case. And what do I mean by that? We request a review or you request a review and the appeals council is looking for legal error because that's all they can address. Look, I know, as I said, you might be angry about that decision, but being angry isn't the basis for taking an appeal. And so what they're looking for is mistakes that the judge made, like making a mistake in interpreting the Social Security rules or regulations and ignoring important evidence, failing to explain their decision properly, like why they accepted one doctor's opinion over another, why they gave greater weight to another doctor's opinion, and they may have violated your rights during the hearing.
 
 Nancy Cavey [00:09:43]:
 And now that's becoming important these days because the vocational issues in a Social Security case are quite contentious these days. And we Social Security lawyers are objecting to the qualifications of vocational evaluators during the course of the hearing as not being qualified as experts in statistics and therefore not being able to give statistical type testimony regarding job numbers. There are some judges who are blowing off that defense and won't even let us submit a post hearing brief. Blowing off that kind of defense, not allowing us to submit that post hearing brief, vocational brief, is a violation of due process. So I will tell you, in today's current environment, if we are losing and we think that it was because of a vocational decision, and we have properly preserved that objection, we aren't hesitating at all to take an appeal to the appeals council. And they seem to be very interested in these due process violations. Now, they're not deciding whether or not you meet the five step sequential evaluation test. They're looking at whether the judge followed the rules.
 
 Nancy Cavey [00:11:01]:
 Now, many times I tell my clients I'm a bit of a legal bookie. I'm giving them odds on winning. And I will tell you that the odds at the appeals counsel aren't great. They only reverse or remand about 20 to 25% of the cases they review. That means that most appeals are denied. But that doesn't mean that your case shouldn't be appealed. Remember, I just talked about this, the violation of rights during the hearing, that due process violation in the vocational testimony that I think has a significantly higher chance of success. But that doesn't mean if the judge ignored evidence or didn't explain the decision, that you may not have a good case for appeal.
 
 Nancy Cavey [00:11:47]:
 Filing an appeal may be the only way to preserve your rights and back pay. And many times cases that were ultimately one in the federal level are going to start at the appeals council level. So let's talk about what happens if the appeals counsel remands your case. Now, generally, they can do three things the first thing they can do is they can say we agree with the denial. It's right. Benefits are lost. Too bad, so sad. They can also award benefits.
 
 Nancy Cavey [00:12:24]:
 I've never seen that in my lengthy Social Security disability career. But what we do see is that the appeals counsel will remand the case and that means that your case is going to go back to the same judge or sometimes a different one for a second hearing. But the hearing is limited to the issues raised by the court in the remand notice. In other words, if you a second bite at the apple for you, but it's a more focused bite, if you will. For example, if the issue was that the doctor ignored your treating doctor's opinions, then the judge is going to have to address that in the next hearing and in their order there's a chance to fix what went wrong with that evidence. You know, potentially we can contact your doctor, we can get clarification. We can try to address the basis of the doctor's opinion through your testimony. There's all sorts of things we can do.
 
 Nancy Cavey [00:13:18]:
 But you can see and hear that that requires strategy and preparation and we're going to talk about that in our next segment. Let's take a break. Foreign welcome back to Winning Isn't Easy. The appeals council's actions have included a upholding the denial and what happens next. Now, as I told you in our last segment, the appeals council can reverse the decision. They can reverse and remand, which is going to require a new hearing and strategy, which we'll discuss a bit further here. Or they say too bad. So sad.
 
 Nancy Cavey [00:14:09]:
 We think the judge was right, didn't make any legal error and we're going to uphold denial. I know it is frustrating and it's discouraging, but it is not the end. Now option one would be to walk away and say I give up the claim. I am going to walk away from those back benefits and potentially my entitlement to Medicare. Now, unless your medical condition has improved dramatically or you're no longer financially eligible for ssi, it might be worth experiencing exploring your other options in terms of giving up again, I'm looking at whether I think this case is strong enough to take to federal court. Now we don't do federal appeals work. I have a lawyer that I refer the cases to and I ask for a straight up opinion. Is this a case you think is a winner at the federal appeals level? And he gives me his honest opinion.
 
 Nancy Cavey [00:15:06]:
 There are times that he says no. There are times that he says yes. So when I'm Consulting with my client. It's just not my opinion. It's the opinion of a federal court Social Security disability lawyer. Now if the lawyer, my co counsel, says, you know, give up, I don't think I can win this case. There's no harm or foul in getting a second opinion. And there's no foul or harm by talking through the options, including what you're walking away for from and whether it's better to start a new application now.
 
 Nancy Cavey [00:15:46]:
 So that's option number two. I can file a new application based on my current condition and walk away from the benefits, or I can sue in federal court. If your original application was strong and you and your attorney believe that the judge got it wrong, now you can do both. You can start a new application based on your current condition, unlike at the appeals council level, and you can file a lawsuit in federal district court to challenge the decision. Again, which option is appropriate or both options are appropriate really depends on the factual situation. It depends in part on the strength of your claim. What the judge ruled, how the judge ruled, what we think our chances are of winning at the federal level, and whether your condition has changed or improved, whether you still have the support of doctors, those medical issues that will go to that original five step sequential evaluation test. More often than not at this point, a person's insured status has ended.
 
 Nancy Cavey [00:16:55]:
 Remember, you have to generally work 20 out of the last 40 quarters, five out of the last 10 years to be insured for Social Security disability purposes. And what can happen is during this lengthy process, you can lose your insured status. So the options are, okay, I'm going to appeal to the federal court, I am going to start a new application. But if your insured status has ended, this application is only going to cover the period of time through your insured status ending. So that might be a year ago or two years ago, or you might be eligible to file an SSI application, but that's based on the assets that you and your spouse have. So sometimes even though the insured status has ended, we're not qualified for SSI and we have to make a decision to file a new application for Social Security disability benefits through the date last insured. Now, you can hear that this is a complicated legal process and decisions that have to be made based on your financial situation and the strength of your medical documentation. Remember, there's a lot at stake here and that has got to be sorted out.
 
 Nancy Cavey [00:18:15]:
 You can see why it's absolutely crucial you have an attorney at this stage. A federal appeal is not the same as Filing a Social Security claim, it's an actual lawsuit in federal court. And the process is completely different. Your attorney has to write a detailed legal brief, often over 30 pages. They're going to cite federal law, Social Security regulations, they're going to cite case law and the judge is going to be a federal district judge who is not affiliated with the Social Security Administration. I will tell you that it can take 40 hours of work just to do a federal brief. And this isn't something that a general practitioner would will handle. And obviously you need an experienced Social Security appellate lawyer.
 
 Nancy Cavey [00:19:01]:
 So what happens if you win? If you win at this level, it doesn't necessarily mean you're going to start getting checks. Often the federal court will remand it back to the Social Security Administration for another hearing and generally with a new alj. But here's the key. If you win, you have preserved your original claim back to the date that you filed and that could be years of benefits and that could be thousands or tens of thousands of dollars of benefits and your Medicare eligibility. So I want you to understand that sometimes a loss at the ALJ level can turn into a long term win if you fight the right way and if you have patience. I'm a big Winston Churchill person and you know, one of his most famous sayings was, you know where they were going to fight? They were going to, they were going to fight on the beaches, they were going to fight on the land and they were going to fight and fight and fight. They weren't going to give up, they weren't going to surrender. And I know I didn't do a good job with that quote, but that's our philosophy here at KV Law.
 
 Nancy Cavey [00:20:04]:
 We fight until we can't fight anymore. And you should be thinking about that as your mantra as you consult your Social Security disability lawyer. Got it. Let's take a break. Foreign welcome back to Winning Isn't Easy. Why legal strategy matters at every stage of the appeal. Now, in the course of this episode, I've talked a lot about strategy. Strategy that can make a difference.
 
 Nancy Cavey [00:20:45]:
 I think that you need to understand that the whole process is slow. It's complex and one mishap can cost you years of benefits. So I want to wrap this up by talking about why having a legal team behind you can be the difference between losing your benefits and finally getting what you deserve. As we all know, the system is not set up to help you win. It's designed to weed people out. Denials are common you even for legitimate claims. And the Social Security Administration isn't trying to hurt people, but it certainly is weeding people out, and it often results in unfair outcomes. When we end up in front of a judge, an administrative law judge, our strategy really goes into high gear.
 
 Nancy Cavey [00:21:33]:
 Not that it hasn't been in high gear before then, but you need to understand, at least at our law firm, we are busy preparing you for the hearing. We do a direct exam video, which is an hour long, in which we explain the generic questions that are asked and how to answer those questions. But we also have a prep session with our client where we review the direct exam questions and their answers. But more importantly, during the life of this case, we have been asking our client to give a consistent history of their symptoms and functionality, why they can't do their past work, why or why they couldn't do a job sitting down all day, meeting the pace production and attendance requirements. So we want to make sure that the medical history is full of symptoms and an explanation of the problems that our client is having both physically, cognitively and psychiatrically. But we also are a big user of and believers in residual functional capacity forms. In these forms, doctors will quantify your restrictions and limitations. How long you can sit, stand, stoop, walk, bend.
 
 Nancy Cavey [00:22:35]:
 Do you need to take breaks? Do you have problem with fatigue or following instructions? Do you have problems staying on track? Would you be missing time from work? Do you have problems using your hands together? All of the functional problems that you have that would prevent you from doing your past work or other work? Why? Because when we get in front of the judge, we want to create a fantastic record that establishes why you're entitled to your benefits. Now, we know the judges are over overworked and they don't always reach the right decision. I just got a decision. I'm scratching my head about where the judge found that my client didn't have a medically determinable impairment. Even though I spent two pages of a memorandum of law explaining page and verse why they met a medically determinable impairment. And obviously we're going to take an appeal to the appeals council. But the appeals council is also inconsistent. And even though they are looking for legal error, they don't always, in my view, recognize the legal error.
 
 Nancy Cavey [00:23:41]:
 And so if we have to make a decision to take an appeal to the appeals council, we're trying to formulate in our appeal strategy not only to get the decision reversed, but strategy that would help us if we have to take an appeal at the federal level. So what a good Social Security disability lawyer is doing from the very beginning is Thinking about having to take an appeal. Now, that doesn't mean I don't think we can't win. That means we're trying to set up the record so that if. Well, so that we win. But if an appeal has to be taken to the appeals council or the federal court, that the basis for that appeal is there. So an experienced Social Security disability attorney is going to gather the right kind of medical evidence. RFC forms, is going to make sure that you are framing your story in terms the Social Security will understand it.
 
 Nancy Cavey [00:24:35]:
 And we are framing your story in a way that the Social Security administration will understand it based on your history, based on the residual functional capacity form and having testimony if needed that will show that you meet the five step sequential evaluation. We write legal briefs to make your case, one that should grab their attention. And we obviously are strategizing and making sure that we're presenting this in a case in a manner that is consistent with the case law and the regulations, but one that is compelling. Now, obviously, we just don't fill out forms. We strategize. We position your claim to stand out as a winning claim. I want you to also understand that time and deadlines are not on your side, even though you've waited forever. If your claim has been denied at the initial application stage, you have 60 days in which to file a request for reconsideration.
 
 Nancy Cavey [00:25:30]:
 If your claim is denied again at the request for reconsideration stage, you have 60 days in which to file an appeal called a request for hearing. And if it gets denied again, then you have to fill file an appeal to the appeals council. So initial app. 60 days, request for recon, 60 days. Request for hearing, 60 days. And if you blow any of that, you have to start all over again. 60 days to file an appeal. Council review.
 
 Nancy Cavey [00:25:57]:
 If the appeals council upholds the denial, 60 days to file a federal lawsuit. And if you miss those deadlines, as I've said, you've got to start all over or I'm going to use a legal term, you're screwed. You can lose your benefits by missing these deadlines. So a good attorney knows the calendar, knows the courts, and is supposed to be keeping your case moving in conjunction with you. Why did I say supposed? I will tell you that there are times when clients disappear on us, and that makes it really difficult for us to continue to do our job. I understand you might become homeless. I understand that completely. But keeping in touch with your lawyer is really crucial because strategy continues through the whole process.
 
 Nancy Cavey [00:26:46]:
 So winning isn't easy, but it's possible. And that's why we've named this podcast Winning Isn't Easy. We know the reality. Even strong claims get denied. Even obvious disabilities are questioned. But with the right team, the right documents, and the right legal approach, you can push back against the system and win. So that's it for today's episode of Winning Isn't Easy. If you are thinking about applying for benefits.
 
 Nancy Cavey [00:27:09]:
 And if you've been denied benefits, don't lose hope. The road may be long, it may be rocky, but there are still options. So today we talked about the Appeals Council and how it deals with a ALJ denials, what your options are if the Appeals Council upholds the denial, and and why you need specialized legal help to take your case further. You have deserved, and you deserve the benefits you've earned. You deserve the healthcare and financial stability that comes with getting your Social Security disability benefits. And most of all, you deserve a fair shot. So if you're ready to take the next step, you should be talking to a qualified Social Security Disability attorney. If you found this episode helpful, please take a moment to like this episode, share it with family and friends, and subscribe.
 
 Nancy Cavey [00:27:57]:
 Share to this podcast. Join us next week for another insightful discussion and episode of Winning Isn't Easy. And we're going to talk about termination of benefits you've won, but how you can lose your benefits. And I think that's important, unfortunately, in today's political environment. Thanks for listening.