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Last Updated August 13, 2003 Tips on Appeals Council Practice I. The Appeals Council is a Claimant’s Friend A. The Appeals Council Provides More Relief Than Federal Courts In the vast majority of cases, a claimant must request Appeals Council review to exhaust his or her administrative remedies. See 20 C.F.R. §§ 404.955, 416.1455 (2003). The Appeals Council acts on about 100,000 requests for review each year. In Fiscal Year 2002, the Appeals Council denied or dismissed 72% requests for review, remanded 25% of requests for review, and allowed 3% of requests for review. Office of Disability Programs, Social Security Admin. (Feb. 2003). Thus, the Appeals Council provided relief to 30,000 claimants in 2002. Relief from the Appeals Council dwarfs relief from federal courts. In FY 2002, there were about 13,800 federal court dispositions of which plaintiffs obtained relief in about 7,700 cases. In other words, the Appeals Council provides four times as much relief as federal courts. B. The Appeals Council Grants Relief in a Substantial Percentage of Cases Some diminish the importance of the Appeals Council by reference to a low rate of relief provided by the Appeals Council, criticizing the Appeals Council for granting only one in four requests for review. But obtaining relief in one in four cases is a significant rate of success. Moreover, an attorney with some expertise in Social Security law should be able to obtain a much higher rate of relief from the Appeals Council. Remember that the Appeals Council provides relief in one of four requests for review, including all the requests for review filed by pro se claimants with weak cases, and including all requests for review filed by representatives with weak cases. (Many representatives seek Appeals Council review of all or nearly all of unfavorable or partially favorable ALJ decisions.) Thus, the pool from which the Appeals Council grants relief includes many meritless cases. Given this fact, a skilled attorney should obtain from the Appeals Council relief on average in about 35-75% of cases. C. The Appeals Council is Often a Claimant’s Best or Only Hope There are other reasons why the Appeals Council is a claimant’s friend. Many federal courts and individual district court judges and magistrate judges are unsympathetic to plaintiffs seeking disability benefits. Thus, to correct an ALJ’s error, the Appeals Council may be a claimant’s only option. As a related matter, the Appeals Council may enforce certain agency rules or rulings that a federal court will not. There are many examples of this. Courts seldom find jurisdiction to review ALJ dismissals, in contrast to ALJ decisions. See, e.g., Brandyburg v. Sullivan, 959 F.2d 555 (5th Cir. 1992). If an ALJ dismisses a request for hearing as untimely, the Appeals Council is a claimant’s only real hope to obtain a decision on the merits of the dismissed claim. The Appeals Council is the end of the road. By regulation, Social Security Rulings are binding on all agency adjudicators, including ALJs and the Appeals Council. 20 C.F.R. § 402.35 (2003). Many SSRs require an ALJ to discuss specifically certain kinds of evidence such as medical opinions from a non-examining state-agency source. See, e.g., SSR 96-6p. The Appeals Council may enforce such an articulation requirement, while some federal courts will not even though SSRs are binding. The same may hold true for compliance with the HALLEX, the manual of procedure for ALJs and the Appeals Council. Available at http://www.ssa.gov/OP_Home/hallex/hallex.html. Courts may refuse to enforce a provision of the HALLEX. See, e.g., Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (“As HALLEX does not have the force and effect of law, it is not binding on the Commissioner and we will not review allegations of noncompliance with the manual.”). In contrast, the Appeals Council regularly—but not always—enforces the HALLEX. Additionally, the Appeals Council sometimes enforces its own remand order orders, when a federal court would not enforce the remand order. If the Appeals Council ordered an ALJ to obtain a consultative examination and the ALJ did not obtain the consultative examination, the Appeals Council may grant a request for review and remand with another order to obtain the consultative examination. In contrast, a federal court may reasonably give no weight to the fact that the Appeals Council once ordered a consultative examination when determining whether an ALJ developed an adequate record. D. Obtaining Relief From the Appeals Council is Efficient If all of this were not enough to take the Appeals Council seriously, obtaining relief from the Appeals Council is efficient. Even accounting for the delay at the Appeals Council—something that has diminished significantly—obtaining relief from the Appeals Council is much more efficient than litigation. It take on average two to five hours to prepare a thorough letter to the Appeals Council, i.e., about as much time as it takes to draft a federal court reply brief. An attorney can obtain relief from the Appeals Council at a fraction of the cost to litigate a claim in federal court.
E. A Federal Court Will Likely Only Remand Anyway Saving arguments for federal court is most often unwarranted and ill-advised for the reason that the Appeals Council may provide the same relief that the federal court will provide: remand for a new administrative hearing. In 50% of federal court cases, the courts reverse with a remand for a rehearing under sentence four of 42 U.S.C. § 405(g) or remand for further proceedings under sentence six of 42 U.S.C. § 405(g). In only 6% of court cases does the court hold itself that the claimant is entitled to benefits. In the bulk of cases, a claimant does not get a better deal from a court. II. Pretend That Sims v. Apfel (2002), Requires Appeals Council Issue Exhaustion Issue exhaustion refers to the doctrine requiring a non-government party to raise to an agency a particular issue in order to preserve that issue for later judicial review. See Sims v. Apfel, 530 U.S. 103, 106-108 (2000). In Sims, the Supreme Court ruled that a federal court may not impose issue exhaustion at the level of the Appeals Council. Claimants’ attorneys should work as though the Supreme Court had reached the opposite conclusion in Sims. In other words, raise issues to the Appeals Council as though the federal courts required Appeals Council issue exhaustion. Representing claimants as though Appeals Council issue exhaustion were the rule is a useful way of enhancing representation. The Appeals Council is much more likely to grant a request for review when the claimant has set forth cogent arguments explaining why the Appeals Council should grant the request for review. Moreover, although the federal courts do not require Appeals Council issue exhaustion, the Social Security Administration (SSA) can require Appeals Council issue exhaustion by amending its regulations. There is nothing to prevent the SSA from requiring representatives for claimants to raise specific issues to the Appeals Council as a precondition for later judicial review of those issues. And, even though Appeals Council issue exhaustion is not required today, a federal court may reasonably take less seriously any argument that was not presented to the Appeals Council. If the issue were so important that it requires judicial relief, the representative should have raised the issue to the Appeals Council. Why, a federal court may wonder, is the attorney asking the court to correct an error the attorney did not ask the Appeals Council to correct? By raising issues to the Appeals Council, an attorney shows proper respect for the judiciary. The attorney asks for a federal court’s valuable time only after the attorney did his or her best to convince the SSA to fix its own mistakes. III. Evaluate the Merits Prior to Requesting Appeals Council Review Many attorneys automatically request Appeals Council review whenever an ALJ renders an unfavorable or partially-favorable decision. This may have the advantage of establishing a routine by which requests for review are timely filed, but many requests for review should not be filed. Many unfavorable or partially-favorable ALJs decisions are correct. ALJs are correct most of the time. After all, ALJs find claimants disabled in more than half of all cases. If an ALJ’s decision is correct, consider not requesting Appeals Council review. It may be that the claimant should put all of his or her efforts into proving disability on a new application. Or, the claimant might have returned to work, showing that the claimant can work. Additionally, an attorney should exercise caution when requesting Appeals Council review of a partially-favorable ALJ decision with ongoing benefits at stake. If the ALJ’s finding of disability is dubious or questionable, a claimant might reasonably decide not to request Appeals Council review to minimize the chance that the Appeals Council will ask an ALJ to reconsider whether the claimant was disabled at any time. IV. Make Precise Procedural Requests When requesting Appeals Council review, an attorney should make precise procedural requests. In every case, the attorney should consider whether to request: • the ALJ’s decision, • the exhibits or select exhibits, including exhibits from prior claims, • the list of exhibits, • audiotape(s) of one or more hearings, • transcript(s) of one or more hearings, • extension of time to submit additional evidence, and • extension of time to submit arguments after compliance with the procedural request. The request for review should list each of these individually if desired. An attorney should also request expressly an extension of time after compliance with a procedural request to submit additional arguments and/or evidence. Although the Appeals Council ordinarily considers a procedural request an implicit request for an extension of time to submit additional arguments and/or evidence after compliance with a procedural request, request expressly the extension. (The conference materials include the initial request for review for claimant Proffitt.) Ideally, an attorney will not make any procedural request to the Appeals Council. Instead, within the time limit for requesting Appeals Council review, the attorney will present all arguments and additional evidence in support of a request for review. Because the testimony of medical and vocational experts at a hearing is important in most cases, an attorney will need to have recorded the hearing him- or herself or have taken accurate notes of the expert testimony. I generally advise not relying on notes of expert testimony. V. Track Compliance With Procedural Requests The Appeals Council is notorious for failing to satisfy procedural requests. Tracking compliance with procedural requests is vital. For example, it is not uncommon for the Appeals Council to provide defective audiotapes. If the Appeals Council satisfies, in part, a claimant’s procedural requests, consider asking the Appeals Council to comply fully with the procedural requests, but also submit with a second procedural request arguments in support of the request for review. (The conference materials include a second request for the audiotape for claimant Flaherty.) Sometimes the Appeals Council denies review before satisfying any procedural request. In other words, the Appeals Council may deny a request for review when the attorney is waiting for the audiotape or exhibits and when the attorney has not presented any arguments in support of the request for review. If the Appeals Council denies review before complying with a procedural request, the attorney should decide immediately whether to ask the Appeals Council to vacate its denial of review and comply with the procedural requests. There are two points of contact to ask the Appeals Council to vacate a premature denial of review: the appropriate Branch, see http://www.ssas.com/acphone2.htm, and Beatrice Squire, the ombudsperson for the Appeals Council. (The conference materials include a motion to vacate a premature denial of review for claimant Decker submitted to Ms. Squire.) How long does the Appeals Council take to respond to procedural requests such as a request for the audiotape? Several weeks to several years. An attorney needs to check periodically the status of pending Appeals Council matters to assure that no case falls through the cracks. As the outside limit, if the Appeals Council has not complied with a procedural request in one year, contact the Appeals Council about the request for review. VI. Speak the Language of the Appeals Council The Appeals Council is concerned primarily with compliance with the regulations, SSRs, Acquiescence Rulings (ARs), and the HALLEX. Speak the language of the Appeals Council. Thus, case law should be cited in addition to the regulations, rulings, and the HALLEX, not instead of the regulations, rulings, and the HALLEX. Further, when relying on case law, do not lecture the Appeals Council about the law. Do not threaten the Appeals Council with litigation if the Appeals Council does not grant review. The Appeals Council is well aware that in most cases a claimant has a judicial remedy. VII. Organize Your Arguments Using an Outline and Headings Present arguments to the Appeals Council using an outline with descriptive headers. Someone reading an attorney’s letter to the Appeals Council should be able to identify within several minutes why the attorney contends that the Appeals Council should grant review. By merely glancing over the argument headings, the Appeals Council should know whether the main argument relates, e.g., to a treating physician’s opinion, the vocational expert’s testimony, or a mental impairment. (The conference materials include letters to the Appeals Council using informative headings for claimants Tabares, Flaherty, and Klim.) VIII. Write at Most a Very Concise Statement of the Facts Many letters to the Appeals Council are little more than lengthy statements of the facts with arguments hidden among the facts. Such letters are ineffective. Success in the Appeals Council should not depend on the generosity of the Appeals Council to identify for the attorney which arguments the attorney is actually making. A lengthy statement of the facts is with few exceptions unnecessary. An attorney must have a special reason to justify any lengthy statement of the facts. Any lengthy statement of the facts will likely be unread and should be unread. It is waste of time for the Appeals Council to read such a statement of facts. Instead, the Appeals Council will rely on the ALJ’s factual summary. An attorney’s job is to identify material errors and omissions in the ALJ’s statement of the facts. If the ALJ neglected an important opinion from a treating physician, present as a freestanding argument that the ALJ neither acknowledged nor evaluated the treating physician’s opinion. There is no reason for the attorney to offer another, allegedly improved statement of the facts. IX. Be Brief Yet Thorough
There are different philosophies about presenting arguments to the Appeals Council. At one extreme, attorneys draft short, one- or two-page letters to the Appeals Council focusing on only the very strongest arguments. At the other extreme, attorneys submit to the Appeals Council essentially full-blown federal court briefs. In the ordinary case, neither extreme is appropriate. If a request for review is truly meritorious, an attorney should be able to identify more than one or two pages of errors. Even if an ALJ made myriad errors, there is no need for a full-blown federal court brief, and there is usually no advantage to such a brief. Avoiding both extremes, an attorney with expertise in Social Security law should ordinarily spend about three to five hours preparing a three-to-six-page, single-spaced letter to the Appeals Council. X. Do the Work for the Appeals Council When drafting a letter to the Appeals Council, an attorney should do whatever work possible for the Appeals Council. Cite the exact page of the ALJ’s decision and consider quoting the ALJ directly. Rest assured, if an attorney alleges that an ALJ said such-and-such, the Appeals Council will verify that in fact the ALJ said that. Make it easy for the Appeals Council to verify factual assertions. The attorney should identify by exact exhibit and page any evidence upon which the attorney relies. If the evidence is important enough to mention, it is important enough to locate for the Appeals Council. Because an attorney should cite the exact exhibit and page, the attorney needs to have planned ahead. When an attorney leaves the ALJ hearing and returns to the office, the attorney should have a completely paginated exhibit file. If an attorney does not have a completely paginated exhibit file, the attorney may request with a request for review the (paginated) exhibit file from the Appeals Council. Citing testimony at the hearing is more difficult. Ideally, an attorney will transcribe the hearing for the Appeals Council and then cite the transcript. Without a transcript, the attorney can describe when in the hearing the relevant testimony was offered. XI. Use a Professional, Respectful Tone
Too many letters to the Appeals Council are disrespectful to the ALJ and/or Appeals Council if not unprofessional. Do not flame, disparage, or ridicule the ALJ. Keep in mind that the Appeals Council will deny review in three out of four cases. The ALJ will receive the benefit of the doubt. Remember that the claimant wants something from the Appeals Council: that his or her request for review be granted. Insulting the Appeals Council or ranting against the Appeals Council will not make it more likely that the Appeals Council will grant the request for review. Nor will using sarcasm. Further, keep in mind that if the Appeals Council provides relief, the Appeals Council will likely remand to an ALJ for further administrative proceedings. Since the Appeals Council allows an ALJ two bites at the apple, see HALLEX, I-2-1-55, available at http://www.ssa.gov/OP_Home/hallex/I-02/I-2-1-55.html, the case will first go back to the ALJ who originally decided the case. The exhibit file sent to the ALJ will include arguments submitted to the Appeals Council. Most people of which ALJs are a subset do not appreciate gratuitous insults. XII. Allege ALJ Bias Only With Great Care An ALJ is not biased because the ALJ found the claimant not credible, because the ALJ ignored a treating physician’s opinion, because the ALJ misstated the law, or because the ALJ snapped at the claimant or the claimant’s attorney. Nor is an ALJ biased because the ALJ found inconsistencies in the claimant’s statements. The Appeals Council wants ALJs to search the record for (material) inconsistencies. See SSR 96-7p. Almost all arguments alleging that an ALJ was biased are merely run-of-the-mill arguments about whether substantial evidence supports the ALJ’s decision or whether the ALJ made a legal error. Characterizing a run-of-the-mill substantial-evidence argument as an argument that the ALJ was biased does not make the argument more persuasive. It makes the argument less persuasive because the argument has nothing to do with adjudicator “bias” in its technical definition. See Liteky v. United States, 510 U.S. 540 (1994) (discussing recusal of a federal judge). The Appeals Council will not be persuaded that an ALJ was improperly “biased” merely because the ALJ found the claimant not credible, because the ALJ ignored a treating physician’s opinion, because the ALJ misstated the law, or because the ALJ snapped at the claimant or the claimant’s attorney. Allege ALJ “bias” only in those rare cases where ALJ bias narrowly understood can be proved. XIII. Make a Credibility Arguments Based on SSR 96-7p The Appeals Council generally does not grant a request for review based in large part or based solely on a disagreement with the ALJ about the claimant's credibility. The Appeals Council is deferential—even very deferential—to ALJ credibility findings. It is not improper for the ALJ to identify inconsistencies when making a credibility finding. The Appeals Council wants ALJs to find (material) inconsistencies in claimant testimony. See SSR 96-7p. Thus the Appeals Council will be very reluctant to rule that the inconsistencies identified by an ALJ are immaterial or otherwise an inadequate basis for the ALJ's credibility finding. If the Appeals Council finds that the ALJ's credibility finding is defective, the Appeals Council will likely base its ruling on SSR 96-7p. Therefore, an attorney should focus credibility arguments on compliance with SSR 96-7p. Even though the Appeals Council generally does not countenance a direct attack on an ALJ's credibility finding, considering including such an attack in a letter to the Appeals Council for two reasons. First, the Appeals Council may feel more sympathetic to a claimant if the ALJ's credibility finding is vulnerable to attack. Second, even though a claimant is not required to raise an issue to the Appeals Council to preserve that issue for later judicial review, see Sims, 530 U.S. at 111-14, an attorney should challenge the ALJ's credibility finding in the proceedings before the Appeals Council. An attorney does not want a court to wonder why the attorney did not raise a credibility issue to the Appeals Council if the attorney believes that the issue warrants judicial relief. The weakest arguments attorneys generally make to the Appeals Council involve credibility. Below are real-world examples of unconvincing arguments presented to the Appeals Council (with some exaggeration for effect): • I have represented claimants for twenty years, and I know that this claimant is telling the truth. (The Appeals Council gives no weight to an attorney's vouching for the claimant.) • Everyone knows that this ALJ finds all claimants not credible. Therefore, the ALJ is biased. (The Appeals Council knows that this is both false and illogical.) • The ALJ relied in part on his personal observation. (SSR 96-7p permits reliance on personal observation. The ruling is valid. An attorney must offer a specific reason why given the particular facts of a case the ALJ relied too heavily on his or her personal observation.) • The claimant is credible. The ALJ found that the claimant was not credible. Therefore, the ALJ is biased. (The Appeals Council does not consider an adverse credibility finding proof of ALJ bias.) • So what if the claimant rode a horse, jogged one mile, or flew a helicopter. These activities do not prove that the claimant could do sedentary work. Therefore, the ALJ's credibility finding based on the claimant's minimal activities is not supported by substantial evidence. (The claimant is probably not disabled. There are some facts that support a claim of disability and some that do not. An attorney should appreciate that probably at least part of each ALJ credibility finding is reasonable. Just because the ALJ said it does not make it wrong. But an attorney does not need to defeat every single element of the ALJ's credibility finding to overturn that finding.) • The ALJ erroneously found the claimant not credible, in part, based on the claimant's criminal history involving welfare fraud. (The Appeals Council will not penalize an ALJ for noting as part of a credibility finding that a claimant has a criminal history bearing on the claimant's credibility.) XIV. Fax Arguments to the Appeals Council Arguments can be submitted to the Appeals Council via mail or fax to the appropriate Branch. Faxing arguments is the preferred method, but make sure to set the fax machine to provide an image of the first page proving that the Appeals Council received the relevant document on a certain date. For fax numbers, see http://www.ssas.com/acphone2.htm. XV. Keep in Mind That There Are Many Possible Audiences for Every Appeals Council Letter
A letter to the Appeals Council may be read not only by an Appeals Council Administrative Appeals Judge with the power to grant a request for review. The letter has many other possible audiences, including an Appeals Council Appeals Officer, an Appeals Council analyst, an Appeals Council case assistant or technician, the same ALJ who rendered the decision subject to review, another ALJ deciding the same or a subsequent claim, a federal court judge or magistrate judge, the claimant him- or herself, the attorney and the attorney’s firm, and the attorney’s malpractice carrier.
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Eric Schnaufer, Attorney at Law, Eric Schnaufer's e-mail address |