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What happens if the Social Security Appeals Council orders a second disability hearing?

By   /  March 3, 2016  /  554 Comments

Learn why the Social Security Appeals Council may send your disability claim back to the law judge for more investigation and possibly a second hearing.

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Watch the Video: “What happens if the Social Security Appeals Council orders a second disability hearing?”

When Your Appeal Goes Back to the Hearings Level

Sometimes when the Social Security Appeals Council reviews your appeal of a hearing denial, they will decide that some aspect of your case was not fully investigated and will return your claim to the administrative law judge who handled it previously, with instructions about what aspect of your claim needs additional investigation. This is called remanding your case. Remand sometimes results in a second hearing.

Reasons Why The Appeals Council Might Return Your Claim to the Judge

The Social Security Appeals Council might notice that some vocational aspect of your claim was not addressed, so it might tell the judge to ask the vocational expert some additional questions or to call an expert witness if one did not testify previously. In another circumstance, the Appeals Council might point out that some questions about your medical condition and limitations were not answered by your medical records or the hearing testimony. In this situation, the Council might request that the judge send your claim back to the Disability Determining Services to set up a consultative examination for you. Once the requested additional information is obtained and a second hearing is held, if needed, the administrative law judge will render a new decision.
For more information about Social Security Appeals Council reviews, see our article “What Is a Social Security Appeals Council Review and What Can I Do If the Appeals Council Denies My Claim?”

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  • Published: 7 months ago on March 3, 2016
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  • Last Modified: March 4, 2016 @ 4:06 pm
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554 Comments

  1. San Juanita Chavez says:

    I dont know if I have back pay due. I applied in 1978 for SSI with Tx Rehap. asisting me , (I dont know if my parents applied when I was younger), I was denied I dont know if we appealed.
    I applied in 2008 and was approved no more than 3 months after my application was submitted.
    I’ve wondered if I have back pay of some sort due simce I had been denied years/decades before….but I don’t know how to i inquire about this….Please help, and direct me…Greatly appreciate your help.

  2. Misty says:

    Kay thank you for the information I will be getting me another lawyer. I spoke with previous lawyer and she is not wanting to appeal the case she has since moved to a new law firm. I have googled.a lot about disability and have read that the alj is suppose to give the most weight to.your treating doc is this a fact. My old lawyer couldn’t believe that the judge made his.decision back in 2013 that was from an old application aren’t they suppose to be closed and they can’t go back to that old application can they I filled this application in Aug 2014 the old lawyer was saying something about the onset date which I don’t really understand

    • Kay Derochie says:

      Dear Misty,

      The judge has to determine when you became disabled, which might cause the judge to look at the medical in the old claim for history. Determining the disability date is important if you are applying for Social Security Disability because you have to still be insured for benefits (have twenty credits in the ten years prior to becoming disabled), even if the period being paid will be based on the current application date. If the judge thinks that the treating doctor’ opinion is supported by the doctor’s medical records for you, yes, the treating doctor’s opinion is supposed to be given substantial weight.

      Sincerely,
      Kay

      • Lucy Russo says:

        Kay, I had my ALJ hearing August 24, 2016. I called the local social security number to ask about a decision on my case.
        She told me that it’s still at appeals office and is being sent for a second hearing. She also said a letter will be sent and you will be able to appear.
        I don’t understand Kay. It wasn’t denied at hearing. I never received a letter it was denied.
        Who sent in for second hearing with no decision. I’m very confused.Please help me Kay understand.
        Thank you, Lucy

        • Kay Derochie says:

          Dear Lucy,

          A certain number of hearing decisions are randomly selected for a quality assurance review by the Appeals Council. Apparently yours was selected and the Appeals Council found that some element that should have been addressed in the hearing was not and has ordered the judge hold a second hearing to complete the investigation. There is no way to know whether the judge had written an approval or a denial.

          Sincerely,
          Kay

  3. Misty says:

    Please help I just received my unfavorable decision from Alj he made his decision based on a ce exam I had back in 2013. He gave little weight to my treating doc and a lot of weight to the ssa doc.I need to know if I have a chance to appeal this decision with appeals council or do I just refile its been 3 yrs waiting I don’t won’t.to have to refile also I need a new lawyer can I get a new one at this point thanks.

    • Kay Derochie says:

      Dear Misty,

      Yes, you can request an Appeals Council review and it sounds as if you might have grounds to be successful. You can change attorneys if there is nothing in your contract with your current attorney to prohibit it. Just be sure that you terminate the contract formally in writing and that you notify the Social Security Administration in writing of change in attorneys. I recommend that you have your attorney file the appeal with the necessary argument; however, if you are close to the end of the appeals period, file the appeal papers with a statement that you are getting an attorney who will submit the argument for the appeal.

      Sincerely,
      Kay

  4. Nora says:

    Hi Kay,

    I applied for SSI/SSDI in Nov. 2013. I was denied in Feb. 2014. I appealed in April 2014. I had my first Appeals hearing in Dec. 2015 it was postponed due to not having all of my medical records on time. I just had my supplemental hearing today Jul 21, 2016. This hearing was also postponed due to the ME not being present. I’m 39 years old. I’ve been working since I was 14. My medical conditions are as follows: Diabetes Type 2 uncontrolled, GERD, Asthma, Lupus, Chronic Pain, Obesity, Loss of Protective Sensation, Drop Foot, and Paralysis in my left leg. I also have had 3 knee surgeries on my left leg. My questions are about how long will it take to get a new hearing? What are my chances of being approved? Is it normal to have more than one supplemental hearings?

    • Kay Derochie says:

      Dear Nora,

      It is not usual to have two postponements. I suggest you call the hearing office to find out whether you will have another seven-month wait or whether it will be scheduled more quickly.

      Sincerely,
      Kay

      • Paul Henderson says:

        Hi Kay,

        My attorney filed SSD appeal in Jan 2015. I was told by SSD claim should be assigned to ALJ for hearing by April 2016 – as of today ALJ assignment still pending. Originally attorney appeal direction was as a “Closed Period Of Disability Claim”, however, following my recent medical exam and permanent limitations, attorney appeal direction is as a standard SSD claim. Questions – Why is the ALJ assignment taking so long (PA)? Is it possible for the claim to be approved after it is assigned to an ALJ “but before” the actual hearing? Finally, could the claim be approved as a “Closed Period of Disability Claim” versus a regular SSD claim?

        • Kay Derochie says:

          Dear Paul,

          Any claim can be approved as a closed period of disability even when disability has been claimed as ongoing. If the judge finds that you recovered and then became disabled again, he or she might rule that you had two periods of disability, assuming the first lasted at least twelve months.

          Depending on which hearing office in Pennsylvania has your appeal, the average wait time for a hearing date is 20 months, although a couple offices average 18 and one 16 months. There are backlogs and your appeal sits until its turn comes up. Appeals can be approved on the record (OTR) without a hearing. This can happen if the pre-hearing review makes clear an approval is appropriate. An OTR does not shorten processing time by much because the file review is usually done shortly before the hearing.

          Sincerely,
          Kay

          • Paul Henderson says:

            Kay – thank you!! I really needed these specifics & this clarity. My claim is assigned to the Wilkes-Barre. Kay, you also answered (in advance) another inquiry I had. I was wondering if the claim is reviewed, then set aside & waits to be assigned “OR” not reviewed until it is ready to be assigned. So thank you in advance for anticipating this. Two final questions – Can my attorney schedule another client’s hearing before mine if my appeal request preceded the other client’s? The SSD provides a 20 day notice of the hearing … is that business days?

          • Kay Derochie says:

            Dear Paul,

            The hearing office sets the hearing date, not the attorney; although the attorney can ask for a different date if he or she has a conflicting court time. Typically, the hearings are scheduled in the order they are received by the hearing office. I believe the timing of the notice of hearing is counted in calendar days, but you can check this with the hearing office.

            Sincerely,
            Kay

  5. Billy says:

    I applied for disability in June 2014. I was denied the first time and at the reconsider level. I am diagnosed with ptsd, depression and psychotic disorder and take multiple medications. I have everything noted all my medical files and my doctor backing me up and filled out the rfc form. I was seen by a person from ssi for back pain but not for my mental issues. They determined my back is ok and my lawyer took that out the claim but we are claiming my mental issues. Does that make a difference by seeing my doctor at a mental health facility and not being evaluated by ssi for mental issues?
    And while I was waiting for my hearing I worked part time for about 5 months before being fired due to me forgetting the schedule time I was supposed to be at work. I also was baker acted 3 times this year and held 72 hours everytime. I had my hearing on June 1st and it lasted about 30-45 mins. The judge asked if I smoked weed or did any drugs told him no, he asked if I could read a magazine front to back and I told him no and it was other stuff like the people on my job tried to put me on a different position and I couldn’t do it and I told the judge that I barely talked to anyone including managers or customers that’s why I was kept in the back alot and there were other questions but I can’t remember. The judge asked the ve about jobs or something and I think I remember him saying there were like 2 jobs I could do. After the hearing the judge told me he will make a decision in the near future. My lawyer said he feels good about the case and that I have a strong case but he felt like the judge was trying to knock or downgrade our claim. From the sound of things what do you think are chances of approval????

    This judge has a approval rate of 33% For the 2016 fiscal year, the judge has disposed 275 cases at the Office of Disability Adjudication and Review (ODAR) in Tampa, Florida. Out of those 275 dispostions, 56 were dismissed, 90 were approved and 129 were denied. This means that the percentage of dispositions he has approved in Tampa for the 2016 fiscal year is 33%

    • Kay Derochie says:

      Dear Billy,

      I do not calculate the 33% you come up with, but what is in question is whether your claim is approvable. If the judge or your attorney asked about whether you could do the two jobs with your limitations and the vocational expert said no, then your claim would have a good chance for approval. If those questions were not asked, you might have grounds for an appeal if you receiving a hearing-level denial.

      Sincerely,
      Kay

  6. Cherie says:

    Hi,

    I applied for benefits in 2010 due to fibromyalgia and depression. I was denied several times and filed an appeal. I was denied by the Appeals Council. I filed a lawsuit and five months ago a federal judge remanded my case back to the SSA. The Appeals Council sent the remand notice back to my little cal ODAR three months ago. Accordingly to what I’ve found online, the average time for a hearing is 20 months at my hearing office. However, I haven’t been successful in finding any stats on average length of time for remand hearings when the remand is coming from a judge versus the Appeals Council. I called the hearing office and they are not very forthcoming with information. They’ve been trained well. On my most recent call, one rep advised that they do give priority to cases that are remanded from a judge. I asked her how many remands are waiting in the pipeline for my particular judge and as I anticipated she said she didn’t know. How can I get more info. If I have to wait another year and half, I would like to know so that I can pace myself mentally. It’s how I’ve been able to avoid a complete breakdown. Thanks for your input.

    • Cherie says:

      Update: I called my local hearing office a few mint yes ago and the rep I spoke with was very friendly and expressed that he was happy that he was getting ready to leave the office and I was the last call of the day. Well, he informed me my judge is being scheduled for his remand hearings starting at the end of August/early September. I mentioned that online it states 20
      months for a hearing and he advised (which I figured) that I wouldn’t have to wait that long because they give priority to remands that come from a judge. He certainly gave me hope. Being sick has taken its toll on me but thanks to my faith in God, and my supportive husband and sons, I’m
      hopeful.

    • Kay Derochie says:

      Dear Cherie,

      You are likely trying to get information that you will not be successful in getting. I suggest that you pace yourself for six more months.

      Sincerely,
      Kay

  7. Glendon says:

    I have filed in 2012 I have spinal stenosis really bad in my lower back and two degenerative disk in neck in February 2016 I had back surgery a laminectomy in l4 l5 the surgery was part of my disability but the appeal counsel will not accept it because the judge made his ruling before my surgery I am no attorney and can’t get one sent I didn’t have one from the start

    • Kay Derochie says:

      Dear Glendon,

      It is correct that the Appeals Council will consider only what your medical condition was up to the time of the judge’s decision. The reason is that the Appeals Council is looking to see if the judge made an error in handling your appeal. If the Appeals Council upholds the hearing decision, you can file a new claim claiming a disability onset date equal to the first day after the hearing denial letter. The recent surgery would be considered in the new claim. (I’m not aware of any prohibition to hiring an attorney to help with your appeal if you can find one willing to take the case at this point.)

      Sincerely,
      Kay

  8. Jamie says:

    Hi , I filed for disability in April 2010 and have been denied over and over . I had a remand hearing February 5 th 2016 what is the time frame of getting a letter back on the decision? Also if I’m not approved again what is my next step ?there where only two things the judge had to agree to or disagree and also she has to give a reason for her decision.
    I did not get the same judge . This is a lady judge whom gives more yes then no to her cases .
    I’m 50 years old now my condition has worsen and Iv had a stroke .
    I pray I get this time around .
    Thank you
    Jamie

    • Kay Derochie says:

      Dear Jamie,

      The guideline for the judge to render a decision is sixty days; however, as you see, it can take longer. If you are denied, you can appeal again. The letter will explain your appeal rights.

      Sincerely,
      Kay

      • chris m says:

        i applyed in 09/ got denial/ got an attreny 1n 13, hering came up in april, for knees lt ankle back. anxiety depression, denied, that agt 8/1/13 had heart attack, while in the hospital! my ruling came in the mail! on the 6th of 8/13, i was in till the 16th! atterny called while i was their but i neerly / sould be dead, mirrical doc said! now!!, they called while in the hsptl and handed phone to my mom, i just turned 40 ap 29th, nothing!!! my attrenys did!! but waited, for me to come around!! ok, i got out of the hspl and was not right still have some signifagent problems mimmory spelling anxiety depression , they the atterny said in let it exspier?? messed up! to fill an new claim cuose the ssi jugde would nt let nuy heart in new evidence!! but i remember the hearing in aprl 13 i had an realy bad panic anxity attack and he said ” i ve never sean any one like me!!! he ask how many times x/x happen s, i told him 2/3 times a month! in my mind he was asking an week!!! my attrny did nt / thryed , but off to the races i whent! the the heart 8/1/13, months later nov we fialed an new claim , i feelt like this is nt right!! any why
        i just received an denial letter 2wks ago!!! and i read on this sight about jugdes not fovererable disisions , i have / had 5 five dc s!!! on state phycoligist, and state med doc, my gastro from enemic blood loss internail bleeding– we rst than ebs, my phycoligist and phyciratrist presentded i can t work flat out , 7 stent s in the heart (( oh my first attack 5 stents, within a year same arttery n attacks 2 more stents with in an yr!)))
        so i like athers i ve read about , i only talked to an clerk/ secratery ”to pass it ” on the my i thoght was an attrny! not peralegal!!! didnt find out till the day off hearing, she did realy seam to know updated what ever you call it, so i m like hey i want my mom and aunt to come in they know i get flusterd an anxity etc, she said no!!! that got me flustred!! right be for going into the hearing, so i was like why go in?!! in my head, so we get in their and i saw the jugde and we looked at each ather and ,’you know how you know from looking at some one it anit their” well i got that fealing,
        so throgh the ”hearing ” he asked about this?? looked at my preral, and she looked like what s he talking about!!! i asked let me go get my records in the waiting roon 20ft awy!!! he said no!,, well i dont know!! what the date so on,, then ask q and would nt let me finish my answer or just whent to anther cutting me off trying to answer a q, then im asked let me / i want need my mom to help me cuose my heart attack im not all their if you will, he said no, why your rep doesnt want them in her , no!!! she looked puzzaled!! of some of my condittions and the servarity (s)
        i asked to use the rest room , he s like no!! can you hold it , im like i need to go, can you hold it not for long ,we re raping it up so hold it!!
        what med s are you on, my heart, stumic ,calesteral, anxiety, can you tell em to me , no i need to refur to my list ,, do you have it ,,, no my ” rep said not to bring any thing in with me!,, he asked do you? to my rep ,, have an list of his med s,,, she replyed no,, let me go get mine ,,,, no!!! i ll look it up on the pc, ,,, are you taking this and that,,, yes to most but some i ld have to look at,,, we ll,, are you on this i dont remember their still change em,,,, ok that concludes the hearing ,,, dont i have something to say!@!! no!! we ve bein her for 45/ 1hr , then asked do you get angry? im like damd if i do and damd if i dont!!! mom my wrote him a letter she left out she was and nurse!! but he in his jugde ment yha what she said is it but their/ she had no med training or something a rather!!!
        i dont have an conitted mew attrny yet but im working on it!! i filled with help the reqest for review of hearing decision order, but is their any thing or advice ,, any one im missising alot here and my train of though when axniety so please bear with me i hope you all or any one can give any sugestions please contact me, or post, my e mail is crosscm73@gmail.com thank you,
        and again theirs some en wrong her!!! i had an bwc claim at one point , and the doc did or get paid for and disision against!!! , hell one i m e trashed my rt knee, one came on to me, from mid east , the a m a call me a few yrs later after reporting him for sex heras , and their like will you still testtfy yha!!! 5 ather pepole said he was doing the same, well he was foung gulty , but hoped on a jet and whent home!!!!

          • Tonia says:

            I went to court March 11,2016 I was denied be for 3-5-2013. I have had 3 back operations I have degenitive spine ,bulging disk ,depression,anxiety, and breathing problems I use 3 different inhalers, my Dr put on my papers I have chronic back pain fir years when I called last week my case is in decision writting .the ve. Stated he had no job for me .the judge stated to change two jobs in rating from 4 to 2’s stated I could do those jobs then the VE he stated no job for me i have dizzy spells ,off balance and nerve damage and numbness in left foot .I also had shoulder surgery Oct 21 2015 and was awaiting a 3rd surge may 11th 2016 do I have a chance for approval. I was very organized and had all medical .the hearing took 1hr 20 min. At the end the judge said ok we all in agreeable let’s wrap it up and told me I’ll be sending u papers in the mail. I did not have a attorney

          • Kay Derochie says:

            Dear Tonia,

            As you relate the hearing, it sounds as if the judge accepted the vocational expert’s testimony. If that is the case, your claim will be approved.

            Sincerely,
            Kay

        • Kay Derochie says:

          Dear Chris,

          You need knowledgeable assistance from an experienced Social Security attorney because your request for review by the Appeals Council has to state what the judge did wrong in following the rules for hearings, which requires knowing Social Security regulations around hearings. Try checking with your state’s Bar Association for a list of attorneys who specialize in Social Security claims. Then choose one who will talk with your and your mother about what happened at the hearing.

          Sincerely,
          Kay

      • Carla says:

        Hi Kay! I Attended my hearing On April 19th 2016 and was denied 3 and half weeks later by the judge. When I read the paper work it stated that the VE stated that I could do my last job with but that is not what she said when she was questionedited by the judge in hypothetical the only question she answered yes to was can she find a job working with no more than five people. She then answered no to everything else and did not say anything about any other jobs or my last job..So my attorney said that’s all I needed to know but like I said when I got the paperwork back the judge had something totally different..I am currently diagnosed with chronic back pain, major depressive disoder, agoraphobia, PTSD, panic disorder and generalized anxiety disorder that was just one of the things that I noticed that the Judge made a mistake on and he said he didn’t believe me also he brought up thingsome that he never mentioned in the hearing…like my relationship status. Although in the paperwork it says my diagnosis is several he says it’s not a problem

        • Kay Derochie says:

          Dear Carla,

          Talk with your attorney about filing an appeal. You or your attorney can get a copy of the transcript of the hearing to refer to in preparing the appeal.

          Sincerely,
          Kay

    • Ginny says:

      I woke up deaf four years ago. I had cochlear implants put in a yr later, one stopped working and I was told my audiologist the implants were recalled shortly after my surgery. I’ve had multiple stays in hospital for severe pancreatitis, chronic migraines for 16 yrs, I pay for my insurance & meds myself. I’ve lost some speech while deaf and my eyesight is getting worse each year. I’ve just had a third surgery for my rt implant and the judge who was so
      old and knew NOTHING about cochlear implants or where they went had no clue about anything. I don’t hardly drive, I have keyless entry and it’s difficult to hear engine shut off, those things happen to me. I’m just glad I didn’t kill myself or kids. He said we would come back after we received current med-records two weeks later I got a denial. I found an attorney, I pray to god she’s going to help but I’m wondering if I will get my payment for the remaining time till the years up? Does anyone know?

      • Kay Derochie says:

        Dear Ginny,

        I am not sure what you mean by “the year’s up.” If your appeal is approved, benefits will be based on the initial application that is being approved on appeal.

        Sincerely,
        Kay

    • Lakesha Gissen says:

      Hi Kay,

      I have a few questions…. I went to my first hearing December 2015. The ALJ didn’t question me on my illnesses (only about doctors), he did NOT ask the VE one single question. However, he said he would request more records to cover the last four months from my doctors. He also stated “Maybe we would have to come back and maybe we won’t”. My attorney did not know how to read this as he never went before this judge. Why wouldn’t the judge ask us any questions?

      Fast forward five months, i have a second hearing scheduled for next week. This time, the judge has requested an ME to appear by phone and also a VE. Im not sure what to make of this. He never sent me for a CE, i suppose because the RFC from my primary doctor was sufficient. I have uncontrollable type 2 diabetes, high blood pressure, severe diabetic neuropathy, stage 1 renal failure, Bipolar disorder with schizophrenic episodes, and major depressive disorder. I have been going to every doctor appointment without any misses and gave thorough medical records.

      My problem is…. I just found out 3 days ago that I am pregnant. Would being pregnant have an affect on the judge’s decision in any way?

      • Kay Derochie says:

        Dear Lakesha,

        The judge probably did not ask any questions because of the missing recent medical records. There will probably be more questions at the second hearing. Tell your attorney about your pregnancy and let the attorney make the decision about whether it should be brought up at the hearing.

        Sincerely,
        Kay

    • Charlie says:

      Hi Kay, I had my hearing with the judge in November of 2015. Long story short the judge said he didn’t believe my primary doctor and he didn’t accept the restrictions placed on me by my doctor. Even though I had mri showing disc and nerve damage along with spinal stenosis. My case is now in the appeals council stage. My lawyer in the mean time sent me to an independent Doctor who did an rfc along with a few other test on my back. The independent Doctor came back with the same results and restrictions as my primary Doctor. Does the appeals council now have to consider the results by the independent Doctor? And how do you think this will affect my case?

      • Kay Derochie says:

        Dear Charlie,

        There are restrictions on new evidence at the Appeals Council level. I suggest that you check with your attorney about whether he or she thinks they will be considered.

        Sincerely,
        Kay

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