Your Right to a Hearing Before an Administrative Law Judge

After the denial of a request for reconsideration, a Social Security disability claimant has the right to a hearing before an administrative law judge. It is at this stage in the appeals process that many claimants are ultimately awarded benefits. The right to an appeal is preserved if a request for a hearing is made in writing within 60 days of the date of the reconsideration denial notice. There is an additional 5-day grace period given to account for the fact that the decisions are mailed and may not be received immediately on the date of the decision notice. It is my practice to file my client’s appeal requests as soon as practicable. There is simply no reason to wait until the last minute to file a request for a hearing. The official SSA form used to request a hearing is Form HA-501. The claimant must also then complete a Disability Report-Appeal, Form HA-3441-BK. The request for a hearing can now also be filed online through the SSA website. If the deadline for filing an appeal is missed, an ALJ may make a finding of good cause to accept the late filing. However, it is best not put in the position of having to justify a late filing.  A claimant who intends to appeal should do so right after they receive the reconsideration denial.

After a claimant requests a hearing, one will be scheduled at the nearest hearing office to the claimant’s home.  There are only limited circumstances in which a hearing will not be held. First, if the request for a hearing is dismissed (for instance, at the claimant’s request), the hearing will not be held. Second, an ALJ may issue a fully-favorable on the record decision without a hearing. Maine attorney Gordon Gates describes the on-the-record decision process at his blog here.

Third, no hearing will be held if the claimant waives a right to hearing. If the hearing is waived, the ALJ will make a decision on the evidence alone. I cannot imagine a situation in which a hearing should be waived. A hearing before an ALJ is not a mere formality, but is a very important stage of the proceedings. It is the claimant’s one chance to present his or her story in person. This testimony can be crucial to corroborate the description of the disabling condition that may be found in the medical records. Usually, doctors do not describe functional limitations in medical records. The claimant’s testimony about how the condition limits his or functioning is necessary for a judge to issue a favorable decision. Often, the credibility of the claimant is critical to a judge’s decision to grant benefits. If the claimant waives a hearing, the ALJ has no opportunity to evaluate the claimant’s credibility.  The bottom line is that a claimant should simply not waive the right to a hearing — certainly not without first consulting an attorney.

Why appeals are important

Frequently, I have clients who have filed for disability benefits over and over again only to be denied, but have never appealed an initial denial. In order to improve their chances at success, they probably should have appealed the initial denial. Unless the disabling medical condition has worsened between applications, there is little to be gained by successive initial applications. Statistics show that the likelihood of obtaining benefits increases by appealing the initial denial. In Wisconsin in 2007, for instance, the state agency assigned to make disability determinations, the Disability Determination Bureau (DDB), denied 66% of all initial applications. The first stage of appeal is called reconsideration. At this stage, the DDB denied 85.2% request for reconsideration. However, at the second appeals level – a request for a hearing before an administrative law judge (ALJ) – many more claimants are awarded benefits. It is frequently said that 50% of claimants are awarded benefits by an ALJ. Some numbers reflect that ALJ’s approve up to 63% of claims. These numbers suggest that it pays to an appeal the initial denial and appeal if denied again at reconsideration.

This is not to say that simply appealing means a claimant will win his or case. There are good reasons that an ALJ may grant benefits when the DDB did not. For instance, claimants are more likely to have an attorney at the ALJ hearing level than at earlier stages. An attorney can assist them in making an effective argument to the ALJ as to why the claimant is disabled. Also, the long wait for a hearing means that the disabling condition may have worsened over time. There will likely be more medical records and therefore more evidence of disability by the time a hearing is scheduled. Also, the claimant will be older, which may put them in an age category in which it is easier to get benefits. There is also some self-selection occurring as appeals proceed further. That is, people who aren’t truly disabled are probably less likely to keep pursuing appeals.

The bottom line is that if a person truly believes their medical condition prevents them from working and the person has medical evidence to support the claim, the chances of success increase if he or she makes the effort to appeal the denials at the early stages and brings the case before a judge.

Waiting times in Wisconsin

There are frequent news articles about the backlog in the Social Security disabilty system for cases awaiting a hearing before an ALJ.  To get an idea of where Wisconsin stands, click on the images below to see the most recent stats from NOSSCR showing the waiting time for a hearing in Milwaukee (575 days) and Madison (712):

The average processing time for cases in each office is in the far right hand column.  The number in the left hand column is the national rank among hearing offices.

On a related note, the Milwaukee Journal Sentinel is reporting a happy ending to the story of a Milwaukee disability claimant who was waiting 4 years for a hearing.  His story had been reported in August, which apparently resulted in prompt action by the SSA.  He got his benefits.  Thanks to the Social Security News blog for bringing this story to my attention.

Hearing office shuffle

If you are awaiting a hearing before an Administrative Law Judge in Wisconsin you may have noticed that the hearing has been scheduled before a judge in California.  In my practice in northeastern Wisconsin,  most of my cases  would ordinarily be heard by judges from the Milwaukee Office of Disability Adjudication and Review (ODAR).  However, since March 2008 the Social Security Administration has shifted responsibility for cases normally heard by Milwaukee judges at the Green Bay and Oskhosh hearing offices to other ODAR branches.  For instance, cases heard at the Green Bay hearing office are being sent to the Oakland, CA ODAR.  Cases from the Oshkosh hearing office are now sent to the Santa Barbara and Pasadena ODAR offices.  I have also recently had a case sent to the Manchester, NH ODAR.  In Green Bay, the practice has been for the Oakland judges to travel to Wisconsin to sit for the cases.  My experience in Oshkosh has been that the hearings are by video teleconference (VTC).

If the case is on remand from the Appeals Council, however, the case is remaining with the Milwaukee ODAR. 

This shuffling of cases to other ODAR office happens all over the country from time to time as the SSA attempts to relieve the burden of a high volume of cases in certain ODAR branches.  I recently had a case at the Eau Claire hearing office, which is within the area of the Minneapolis ODAR.  That case was heard by a judge from Los Angeles.


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