Appeals Council

• Author: Thomas E. Bush
• Pages: 251-324

5-251

Chapter 5

Appeals Council

§500 Appeals Council: The Decision to Appeal

§510 Requesting Review by the Appeals Council

§520 Arguing Your Case to the Appeals Council

§530 Substantive Issues

§540 Appeals Council Action on Favorable Decisions

§550 After Receiving an Appeals Council Denial Decision

§560 Appealing an ALJ Denial Decision After Federal Court Remand

§500 Appeals Council: The Decision to Appeal

§501 The Final Step of Administrative Review

§502 Should You Appeal?

§503 Exhaustion of Administrative Remedies

§504 Develop a Legal Theory for the Appeal

§505 The Harmless Error Rule

§506 Starting Over With a New Application

§507 Filing a New Application While the Earlier Application Is Pending at the Appeals Council

§507.1 SSR 11-1p: Permission Required to File New Application While the Earlier Application Is Pending

at the Appeals Council

§507.2 Subsequent Application Pending Before SSA While the Earlier Application Is Pending in Federal Court

§507.3 Pipeline Causes

§508 Appealing the Partially Favorable Decision

§509 Appealing Denial of Reopening Request

§510 Requesting Review by the Appeals Council

§511 Time Limit for Requesting Appeals Council Review

§512 Form: Request for Review of Hearing Decision (HA-520)

§513 Extension of Time to Request Review

§514 Extension to Submit Evidence and a Brief

§515 Communicating With the Appeals Council

§515.1 Public Inquiries Staff

§515.2 Appeals Council Branch, Circuit Jurisdiction and Fax Numbers

§515.3 Appeals Council Ombudsman

§515.4 Appeals Council Electronic Records Express Status Reports

§515.5 Appeals Council Email Address for Aged Court Remands

§516 Obtaining Evidence From the Appeals Council

§520 Arguing Your Case to the Appeals Council

§521 Uses of the Hearing Recording

§522 Oral Argument

§523 Standards for Appeals Council Review

§523.1 Abuse of Discretion

§523.2 Error of Law

§523.3 Substantial Evidence

§524 Submitting New Evidence to the Appeals Council

§524.1 Submitting New Evidence in DSI Cases From SSA’s Boston Region

SOCIAL SECURITY DISABILITY PRACTICE 5-252

§525 Effective Briefing

§525.1 Be Brief

§525.2 Be Careful

§525.3 Emphasize Legal Error But Tell a Story

§525.4 Deal with Substantial Evidence Issue

§525.5 Focus Your Argument: Summarize, Explain and Conclude

§525.6 Write for Your Audience: The Analyst, the AAJ and the ALJ

§525.7 Address All Issues

§525.8 Write Clearly and Concisely

§525.9 Cite Exhibits with Page Numbers

§526 Remand Policy

§527 Sample Briefs

§527.1 Sample Brief: Disabled Adult Child Benefits

§527.2 Sample Brief: Date Last Insured Problem

§527.3 Sample Brief: Closed Period ALJ Decision

§527.4 Sample Brief: Multiple Errors

§527.5 Sample Brief: Proper Evaluation of Treating Doctor Opinions and New Evidence

§530 Substantive Issues

§531 Reopening by the Appeals Council at the Claimant’s Request (HALLEX I-3-9)

§532 Dealing With ALJ Dismissals

§540 Appeals Council Action on Favorable Decisions

§541 Own Motion Review

§542 Reopening by the Appeals Council

§550 After Receiving an Appeals Council Denial Decision

§551 When AC Fails to Consider Brief or New Evidence

§552 Extension to File in Federal Court

§560 Appealing an ALJ Denial Decision After Federal Court Remand

5-253 APPEALS COUNCIL §501

§500 Appeals Council: The Decision

to Appeal

§501 The Final Step of Administrative Review

When benefits are denied by an ALJ decision, the

final administrative appeal is to the Appeals Council,

the main office of which is located in Falls Church, Vir-

ginia, a suburb of Washington, D.C. Since 2008, annual

receipts of Requests for Review filed by claimants have

grown dramatically—up 14.5% in fiscal year 2009, up

20.3% in 2010 and up 34.7% in 2011—to the point

where the Appeals Council received 173,332 Requests

for Review in fiscal year 2011 compared to 93,454 in

2008. In 2012, the number of Requests for Review rose

only .3% to 173,849. In 2013 the number of Requests

for Review was down 0.78%. Thus, it appears that the

growth of Request for Review has leveled off.

The Executive Director of the Office of Appellate

Operations, which includes more than 1,250 support

personnel for the Appeals Council, acts as the Deputy

Chair of the Appeals Council. The Deputy Chair, along

with an Assistant Deputy Chair, is responsible for day-

to-day operation of the Appeals Council. Although the

Executive Director/Deputy Chair is sometimes referred

to informally as the “head” of the Appeals Council,

the Deputy Commissioner for the Office of Disability

Adjudication and Review is the titular Chair of the

Appeals Council.

The Appeals Council has about 75 administrative

appeals judges (AAJs) and more than 40 appeals offi-

cers. The Appeals Council is organized into 7 Disability

Program Divisions, 1 Quality Review Division, and 1

Civil Action Division. Within these divisions there are

33 disability program branches, a Retirement and Survi-

vors Insurance (RSI) branch, 4 quality review branches,

and an attorney fee branch. The disability program

branches handle claimants’ disability appeals. The RSI

branch handles appeals not involving disability issues in

retirement, survivor, and SSI cases. The quality review

branches handle own motion review. Each branch has

at least one administrative appeals judge assigned to it

along with one or two appeals officers. In addition to

branches in Falls Church, there are several branches in

two locations in Baltimore near SSA’s Office of Central

Operations. Another group of branches is located in the

Crystal City area of Alexandria, Virginia. All branches

use the Falls Church mailing address.

Five branches, known as court case preparation and

review branches (CCPRBs), handle court cases. When

a claimant files a case in federal court, one of these

branches prepares a certified transcript that is filed in

court. The CCPRBs are generally the clearinghouse for

all cases going to and coming back from court, includ-

ing appeals from ALJ decisions after court remand.

The CCPRBs also act on most requests for voluntary

remand from the Office of General Counsel. Assign-

ment of cases to four of these branches is based on

the circuit in which the district court is located. A fifth

branch handles overflow work.

An administrative appeals judge in one of the dis-

ability program branches, acting alone, cannot reverse

or remand an ALJ decision. To reverse or remand a

case, the first judge assigned to the case, known as the

“A judge,” must conclude that the case is appropriate

for the Appeals Council to review. The case then passes

to a second judge, known as the “B judge.” Both the

A and the B judges are chosen using an assignment

system based on the claimant’s Social Security number

and on the judicial circuit where the claimant resides,

which allows judges to specialize in the law of partic-

ular circuits. If the A and B judges do not agree, a C

judge is appointed using a rotation system among divi-

sion chief administrative appeals judges. The C judge

votes to break the tie. See 20 C.F.R. §422.205(b). While

two votes are required to reverse or remand a case, the

signature of only one judge is needed to deny review.

Review also may be denied by one of the appeals offi-

cers, attorneys who are members of the Appeals Coun-

cil but who are not judges and who have no authority

to reverse or remand a case. An appeals officer has sig-

nature authority only in those cases for which there are

appeal rights. 20 C.F.R. §422.205(c). Appeals officers

therefore do not act in cases involving dismissal.

If the Appeals Council decides that issuing a partial-

ly favorable decision is the appropriate course, it will

give the claimant and attorney notice and the opportu-

nity to argue against this result.

In addition, in a tiny but apparently increasing

number of cases, the Appeals Council will reverse the

ALJ decision and issue a new (and theoretically better

reasoned) denial decision, which the Appeals Council

calls a correcting decision. When it intends to do this,

the Appeals Council will give the claimant and attor ney

notice and the opportunity to submit arguments contest-

ing this course of action.

The stated purpose of the Appeals Council is to

ensure that the law, regulations and binding policies of

the Social Security Administration are followed, and to

promote consistent decision-making among ALJs. Most

claimants’ attorneys say that this purpose has never been

fully achieved—that the Appeals Council has always

upheld too many wrong decisions; but in recent years,

a time when ALJs are turning down more and more

disabled claimants, the Appeals Council has abdicated

its responsibilities to claimants by emphasizing pro-

ductivity over following the law. It has increasingly

denied review. In FY 2008, remands constituted 23.1%