Appeals Council

• Author: Thomas E. Bush
• Pages: 269-340

5-1

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 5-2

§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

5-3 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,

Virginia, a suburb of Washington, D.C. From 2008 to

2011, annual receipts of Requests for Review filed by

claimants grew 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 and 2013, the number of

Requests for Review leveled off with 173,849 in 2012

and 172,492 in 2013. In 2014 the number of Requests

for Review dropped to 155,352. In 2015, there were

149,437 Requests for Review.

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 officers.

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

Survivors 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,

including appeals from ALJ decisions after court

remand. The CCPRBs also act on most requests for

voluntary remand from the Office of General Counsel.

Assignment 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

disability 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 particular circuits. If the A and B judges

do not agree, a C judge is appointed using a rotation

system among division 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 officers, attorneys who are members of the

Appeals Council but who are not judges and who have

no authority to reverse or remand a case. An appeals

officer has signature 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 partially

favorable decision is the appropriate course, it will give

the claimant and attorney notice and the opportunity 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

attorney notice and the opportunity to submit arguments

contesting 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