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WHEN TO APPEAL IN SOCIAL SECURITY DISABILITY CLAIMS

By: Pitt Dickey - Attorney

Preface
: Since Social Security Disability is directed under Federal law, the information in this column will apply anywhere in the United States.  However each Office of Hearings and Appeals and District Office have their own ways of doing things as does the various Federal District and Circuit Courts.   I have kept this column primarily dealing the the mechanics of how the Social Security District Offices and Office of Hearings and Appeals evaluates disability claims. 
- Pitt Dickey


This column will examine the time limits in processing Social Security Disability claims. Most of the time limits are imposed upon the person who is filing for Disability Insurance Benefits and not on the Social Security Administration. In many cases the Social Security Administration (SSA) will deny the persons claim at some level and then the burden shifts to the applicant for the benefits to file a written appeal of that denial. 

If the person does not file his appeal within the allotted time frame then his case can be closed or dismissed by the SSA. There is no corresponding requirement on the SSA to either approve or deny a disability application within a certain time frame. The SSA moves as efficiently as it can but there are thousands of new cases filed each year. The decision making process by the SSA can be very lengthy and frustrating to the person seeking the benefits.

A relatively easy way to visualize the SSA Disability Insurance Benefits process is to think of it as a ladder. There are two rungs on the ladder leading up to a hearing before an Administrative Law Judge. The first rung is called the initial decision, the second rung is called the reconsideration decision and the third rung is the actual hearing before an Administrative Law Judge. There are specific time limits in which to appeal which must be met after each denial if the applicant wishes to keep his claim alive.

An applicant for Disability Insurance Benefits begins the process of climbing the ladder by filing an application for Disability Insurance Benefits. People in the Fayetteville area can contact the local District Office of the SSA located at 111 Lamon Street and which has the telephone number of 910-486-4325. 

The SSA also has a toll free number of 800-772-1213. The applicant can call the local office and request the application package of documents be mailed to them. The applicant can also go personally to the local District Office and obtain assistance there in completing the application materials.

The application materials will include a statement as to the type of health problems the person has, the limitations it places on their activities of daily living and the names and addresses of the health care providers who are treating or who have treated the applicantís health problems. 

Once this material is gathered together then the application is sent to Raleigh, N.C. to the Disability Determination Section which is actually a North Carolina agency which reviews, analyzes and obtains additional information about the applicantís health problems. This Agency then issues a decision after gathering all of the medical information that it thinks is necessary.

The first determination is called the initial decision. If the Agency recommends approval of the applicantís claim then the SSA will review the recommendation. The SSA can decide to either approve the applicantís claim or decide to deny the applicantís claim despite the Agencyís recommendation to approve the claim. If the claim is approved by the SSA then the decision making process stops and the claimant will begin to receive monthly disability benefits.

If the SSA decides at the first level to deny the claim, then the SSA will issue the initial decision that advises the claimant that his claim has been denied. The applicant then has 60 days from the date of the decision to file his next appeal. 

The SSA assumes that the applicant has received the decision within 5 days of the date of the denial letter, which in effect gives the applicant a total of 65 days to appeal by requesting a reconsideration of this decision. The applicant can call the SSA to have appeal documents sent to him to complete. It is not enough to just verbally request the reconsideration decision. The applicant must actually file the written request for the review.

The SSA will not follow up with the claimant to determine if they got the mailing with the reconsideration documents. If the claimant is denied at the reconsideration level he has the same 60 days plus 5 days to request a hearing before an Administrative Law Judge. 

Unless there is a reason satisfactory to the SSA for the appeal for reconsideration being filed after the time limit, then the applicantís claim is dismissed and he will have to start the process all over again.

There are certain reasons that the SSA can waive its 60 day appeal deadline. The SSA can find good cause for missing a deadline to appeal by reviewing the circumstances that caused the person to miss the deadline. The SSA will determine if the SSA had somehow misled the applicant about the appeal; if the applicant didnít understand the appeals process; if the person had limitations involving physical, mental, educational, or inability to read English that prevented him from appealing on time. 

Some factors that the SSA considers good cause include serious illness of the claimant that prevented him from appealing, a death or serious illness in the personís family, if records were destroyed by fire or some accidental means, or the person was making a diligent effort to obtain documents necessary to appeal but was not able to do so in the time frame allowed. 

Other factors that could be considered good cause would include if the SSA gave incorrect information about how to request the review; or the applicant did not actually receive the notice of denial; or the applicant sent his appeal in good faith within the time limit to the wrong Government agency or if there are unusual or unavoidable circumstances that prevented the applicant from sending in a timely appeal.

The best thing to do is to appeal in a timely fashion and not have to worry about a late filing. However if a deadline has passed there is a process for requesting the SSA to waive the missed deadline to keep the applicantís claim alive. Donít give up.

Pitt Dickey has practiced law in Fayetteville since 1978. He has handled SSA disability claims for over twenty years. He practices with the firm of Smith, Dickey, Smith, Hasty & Dempster, P.A. at 555 Executive Place and can be reached at 910-485-8020 or at pitt@smithdickey.com . Or at the firm web site of www.smithdickey.com .

Copyright © 2002 Pitt Dickey - Used with permission

 

Disclaimer:  These pages are created to inform and educate the public only.  They are not and should not be considered legal opinions or advice.  You do not and cannot have any client-attorney relationship with SeniorMag or any of its employees.  You should not act upon legal advice found on SeniorMag and are advised to seek professional counsel before taking any action based upon information found on this site. 

 

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