Indiana Social Security Disability Attorney Blog
Appealing the unfavorable decision of an administrative law judge is the final step in the administrative journey to receive Social Security disability. Unfortunately, about 82% of the appeals to the Appeals Council result in a denial of the Request for Review. To add insult to injury, not only does a Request for Review have about an 18% chance of success, it takes about a year and a half for the Appeals Council to arrive at its decision.
In some respects, a Request for Review may appear futile. However, it is necessary to file a Request for Review with the Appeals Council so that you can seek further review in Federal District Court. In court, depending on the case, the chance of having the decision of the administrative law judge reversed, is much higher than at the Appeals Council level. If you are one of the 82% who are notified by the Appeals Council that the decision of the administrative law judge should not be changed, then you have 60 days from receiving the determination of the Appeals Council to decide whether to begin another journey, the litigation journey.
Every person who loses an Appeals Council Request for Review of an administrative law judge’s unfavorable decision in a disability case has the right to request a court review. A court review is litigation. It involves filing a suit against the Commissioner of Social Security in the Federal District Court which sits in the judicial district where the claimant lives. A claimant who wishes to file a civil action in Federal District Court must pay a filing fee of $400 to the U.S. Court Clerk. Most people who are disabled do not have $400 to pay to file a civil action. It is possible to ask the court to waive the filing fee requirement. The request is done by completing a written waiver form, detailing the assets and expenses of the claimant. If the court allows the case to be filed without the payment of the filling fee, the court will order the U.S. Court Clerk to file the case without a fee and will also order the U.S. Marshals Service to serve the summons and complaint on the Commissioner of Social Security without the need for the payment of service of process.
Up to the point of filing a case in Federal District Court, the Commissioner of Social Security has not had an attorney representing her. That all changes when a court case is filed against the Commissioner. At the time a court case is filed in Federal District Court, the Commissioner of Social Security is represented by the U.S. Attorney who is in the same judicial district where the court sits. The attorneys from Social Security’s Office of General Counsel join with the U.S. Attorney in representing the Commissioner.
There is no discovery, testimony or trial in Federal District Court. Instead, the Federal District Court sits as a type of appellate court. The attorney representing the claimant files a legal brief. The attorney representing the Commissioner files a legal brief in response. Then, the attorney for the claimant has the opportunity to file a final reply brief. Once the briefing has been completed by the attorneys, the court decides the case and issues a written decision. The whole process usually takes less than a year.
Should a claimant seek judicial review of the administrative law judge’s unfavorable decision? Not all cases merit filing a Federal District Court appeal. The question before the Federal District Court is not whether the claimant is disabled but whether the administrative law judge committed an error of law in deciding the claimant was not disabled. The process by which an administrative law judge makes his/her determination of disability is based on numerous statutes, regulations, and rulings. Disability law is very complex. The briefs filed in court must comply with technical court rules and timelines.
A claimant is allowed to represent himself/herself in court. Most anyone, given enough time and effort, can understand the law and the technical rules of the court. Whether most can master the law and rules, in the time allowed, is another issue altogether. Given the limited time involved, the complexity of the law and the fact that the Commissioner has very knowledgeable and experienced attorneys representing her, it is best that a claimant consult with an experienced attorney to learn whether there is merit to filing a court appeal.
