Losing Your Disability Case - 4 Reasons Why You Should Consider Appealing to the Federal Court

How old are you?

You lost your case before the Administrative Law Judge (ALJ) and the Appeals Council. Should you give up now?

Absolutely not.

While it may feel devastating to receive a letter that the Appeals Council has declined your request to review or appeal your disability case, you should view the denial as an opportunity to get the case moving into the federal court system, if it so merits. SSA has been understaffed and overworked for some time now; it is very possible that your case has merit and was not evaluated properly by SSA and the Administrative Law Judge.

Many believe the Appeals Council is a rubberstamp for the administrative law judge's adverse decision. In truth, a small fraction of the claims appealed to the Appeals Council are reversed or remanded (sent back to the judge for a new hearing). You should first seek an attorney qualified to appeal your case to the federal court. If you were represented by an attorney for your hearing and on appeal to the Appeals Council, your attorney may wish to continue the case to the federal court or refer the case to another attorney.

The federal court will review your case to determine whether the ALJ committed any legal errors and to determine whether the ALJ's decision is supported by substantial evidence based on the record. The "record" essentially consists of all the evidence that was in your case file for the ALJ hearing and Appeals Council's determination. Generally, you cannot add evidence that was not before the ALJ unless it is new and material evidence that relates back to the period of disability you are seeking. The federal court will probably want to know why the evidence was not produced earlier.

Your attorney will devise a legal strategy for winning your case. The attorney's argue your case through written briefs, and, unlike the ALJ hearing, you do not need to appear and testify in the federal district court. Your attorney should be doing all the work at this point. The whole process can take anywhere from 9-18 months. If you win the case, your attorney may be eligible to have part of his/her attorney fees paid by the Social Security Administration under the Equal Access to Justice Act (EAJA). Even if your attorney is eligible for up to 25% of the past due benefits in your case, the federal judge will usually give you credit for fees under the EAJA, making the amount taken from your past due benefits much less. Make sure you discuss fees and costs with your attorney and ask about EAJA, as it may help offset the cost of appealing to federal court.

So, here are the 4 Reasons Why You Should Appeal Your Case to the Federal Court:

1. You protect your right to your past due benefits. Those benefits that you are seeking from the past continue to accumulate as you continue to appeal your case. This could amount to tens of thousands of dollars depending upon the length of time your case has been on appeal. If you reapply (which might be the best option under some circumstances) you will lose those past due benefits. There are cases where it makes sense to both appeal to the federal court and reapply for benefits.

2. Those EAJA fees. The ability of your attorney to be paid by SSA if you prevail cannot be understated. This puts you in the drivers seat, with little to lose in continuing your appeal from a financial perspective.

3. If you are indigent--too financially strapped to afford the filing fee for federal court--you may be able to file "in forma pauperis", which is Latin for "I'm too poor to pay the filing fee and other costs associated with this case".

4. You get to prove you were right all along. Winning a case on appeal can be very empowering, and you get the satisfaction of knowing you were able to stand up to the government and prevail.

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