Appealing a Denial - Request for ConsiderationUpdated April 13, 2020 Social Security Disability
Learn how to appeal a denied disability claim with a Social Security Request for Reconsideration and how a lawyer can help you win.
What is a Social Security Request for Reconsideration?
If your initial disability claim is denied, the first appeal you can file is a Social Security Request for Reconsideration except in a few limited geographic areas where the reconsideration is skipped and the first appeal is a hearing request.
Filing Your Social Security Request for Reconsideration
When you file a Request for Reconsideration, you will be asked to complete a reconsideration request form and to provide information about any changes in your health and any work you have done since you filed your claim. You will also be asked the reasons why you think the denial determination is wrong. This means that you will need to understand why Social Security denied your initial claim, so that you can effectively prove your case and be approved.
Refuting Social Security’s Reasons for Denial
Sometimes a person’s claim is denied because Social Security says the disability won’t last for twelve months. In that case, a reconsideration claiming that disability will continue for twelve months can result in an approval simply because, by the time the reconsideration is processed, twelve months will have passed and current medical information will show that disability continues.
At other times, how DDS arrived at their decision is not as clear. You have the right to obtain a copy of, and review, your claim file, including the determination memos. Social Security can, however, at its discretion, decline to release your medical records and doctor’s reports, including any consultative examination reports, directly to you. They will, however, release them to an attorney who represents you or, in some cases, to your physician. It could be helpful to have a lawyer who is experienced with Social Security Disability review your claim file to determine what is needed to win the appeal.
60-Day Deadline to Appeal
There is a time limit for filing a Social Security Request for Reconsideration. You must file your appeal within sixty days of receiving your denial letter. Social Security allows five days from the date on the letter for delivery. This means that Social Security must receive your reconsideration request within sixty-five days of the date on the denial letter. Filing the appeal on time is very important because if you fail to do so, you will most likely lose your right to appeal. It is only very rarely that Social Security allows a late appeal, and then only because the claimant couldn’t respond sooner because of very severe limitations, such as an extended hospital or nursing home stay.
Reconsideration Review and Appealing Again
Physicians and claims examiners at the Disability Determination Services who were not involved with your initial claim will review your Request for Reconsideration. If your disability claim is denied at the reconsideration appeals level, you can appeal again by requesting a hearing.
When Your Claim is Denied
A denied disability claim can be frustrating and sometimes very economically difficult. For those reasons, it’s best to put full effort into your initial claim to try to avoid a denial. If, however, you have already been denied and you believe that you cannot hold down a job on a regular basis, it is time to appeal.
How do Social Security Disability attorneys get paid for representing me in my disability claim and how can I afford a lawyer?
Social Security Disability attorneys who represent disability claimants get paid on a contingency basis. This means that they are paid for their services only if you are awarded benefits. For this reason, when an attorney accepts your case on a contingency basis, it is an indication that he or she believes that you have a reasonable chance of being approved for disability benefits.
Appointing a Representative and Setting Up Payment Method
When you hire an SSI Lawyer, you will sign the Social Security representation form, SSA-1696. The form consists of three parts. In the first section, you appoint the attorney as your representative. Your attorney completes the second section accepting the appointment, thus agreeing to represent you. The third section asks the attorney by what method he or she wants to be paid—directly from your back pay and issued by the Social Security Administration (SSA), directly from you after you get your back pay, or by a third-party. The last option is for the attorney to waive receiving a fee. With the first two options, SSA must approve the fee request before fees can be paid. Most often, the attorney will opt for getting paid by SSA. If more than one person in a firm is to represent you, you must appoint all of them and all must sign the agreement.
How Much Will You Pay for SSDI or SSI Lawyer Services?
In addition to the appointment papers, you will enter into a written fee agreement with the attorney, which specifies the maximum amount the attorney will receive for representing you. The fee agreement must be approved by the Social Security Administration unless a third party, such as an insurance company, is paying for your Social Security representation, which can be the case if you are receiving long-term disability (LTD) benefits.
Your attorney can charge a fee up to 25% of your back pay or $6,000.00, whichever is less. However, the fee agreement does not have to specify up to $6,000. Accordingly, you might be able to negotiate a lower cap of $4,000 or $5,000, for example. Be aware that SSA will not approve a fee request, paid either by you or by Social Security on your behalf if the agreement includes a minimum payment for professional services.
What the fee agreement does is to define the maximum possible fee payable without special petition even if that amount is not actually charged after benefits are awarded. The professional services fee limit does not include a specified amount for the attorney’s out-of-pocket expenses, which are discussed later in this article. Another exception to the fee agreement is the rare case in which an attorney petitions for more than $6,000. This could occur if the attorney expended an extraordinary amount of time on your appeal, for example, having to appeal your claim in federal district court outside the Social Security appeals process and follow you through a subsequent second hearing. SSA may or may not approve such special fee petitions.
Note that if your attorney(s) delegates tasks related to your claim to someone else in the firm and that person has not signed the fee agreement and the tasks involve significant decisions, that person’s services will not be compensated because you did not appoint that second person to represent you. One example would be for someone other than the attorney you appointed to represent you at a hearing. It is wise to ask who will attend the hearing with you and ask to meet that person to decide whether you want to appoint the individual to co-represent you.
How Much Are Attorney Fees When More Than One Benefit Is Payable?
In almost all cases, you will pay one fee even though more than one benefit is paid on your account. If you have minor children and you have worked enough to be insured for dependent benefits, your children will receive benefits in addition to your benefit. If at least one of those children is under age sixteen, your spouse will be eligible for benefits if he or she is not an earning too much in wages or self-employment to be eligible. Because these dependent benefits all stem from the same disability decision as your own benefit, the attorney is considered to have rendered just one service for the purpose of billing and one limit of $6,000 applies, not a $6,000 limit for each benefit; although all the benefits can be bundled for determining the 25% figure.
Similarly, unless the attorney can show that additional work was needed for you to be medically approved for Supplemental Security Income (SSI) in addition to Social Security in concurrent Title II (Social Security) and Title XVI (SSI) disability claims, the fee limit should be $6,000 for both benefits, not a $6,000 limit for each.
No ongoing monthly benefits are subject to reduction in attorney fees. If you subsequently have an increase in your benefit amount that results in an underpayment due to you (e.g., an increase due to workers compensation stopping), the underpayment is not subject to attorney fees because the “back pay” will be paid for a period after the disability decision was rendered.
Out-of-Pocket Attorney Expenses
Typically, whether you are awarded benefits or you are denied after exhausting all appeals, you will be responsible for reimbursing your attorney directly for his or her out-of-pocket expenses related to your claim. Examples of such expenses are districted court filing fees and costs to obtain expert opinions and medical records and reports.
Right to Appeal
You will be notified of the amount of the fee approval after your claim has been approved. If you disagree with the amount, you can appeal it. The notification letter will tell you how to file an appeal. To be successful, you must be very specific as to why the fees that were submitted and approved are excessive. If you have not already received a breakdown of the fees from your attorney, you have a right to request an itemization, which could help you decide whether the fees are reasonable or not.