The decision whether to file an AC appeal is a difficult one and should not be taken lightly. Sometimes it is best to appeal, and sometimes it is not. There are many factors that should be considered.

First, an AC appeal usually takes 12-18 months. If you file an AC appeal, you usually cannot file a new application for benefits while the AC appeal is pending. Thus, if you end up losing the AC appeal, you have just wasted 12-18 months because a new application could have been proceeding during this time. 

Second, the AC usually does not decide whether you are disabled. The AC simply decides whether the ALJ made mistakes on your case. If you win your AC appeal, meaning the ALJ made mistakes, that does not mean that you will be awarded benefits. It usually only means that your case will be remanded back for another ALJ hearing--with the same ALJ who denied your case the first time! The ALJ will then issue a new decision, which may be the same decision as the first time, or it may be different. However, unless you have obtained new medical evidence which changes the outlook of the case, the decision is likely to be the same as it was before, albeit with the legal errors corrected.

Third, when you ask for AC review, the AC will review the ENTIRE ALJ decision, not just the portions of the ALJ decision you disagree with. This makes it very dangerous to appeal a Partially Favorable Decision. The AC could correct an error the ALJ actually made in your favor, which could result in the loss of benefits, as well as the need to pay back benefits you received.

Fourth, the chances of prevailing before the AC are slim, and getting worse. According to SSA’s own statistics, the remand rate has been steadily declining:

Fiscal Year  |  Remand Rate

2010  |  21.77%

2011  |  21.19%

2012  | ​​​​​​​ 18.62%

2013  | ​​​​​​​ 17.11%

2014  | ​​​​​​​ 14.34%

2015  | ​​​​​​​ 13.58%

2016  | ​​​​​​​ 12.03%                 

Thus, currently the probability that the AC will reverse the ALJ’s decision, and remand the case back for a new ALJ hearing, is only 12.03%.

Sometimes it is necessary to file an AC appeal. For example, in a Title II (SSDI) claim, your right to benefits depends on whether your disability began during a time when you had “insured” status. Your disability must have begun before your “date last insured” or “DLI.” Depending on when you stopped working, you may have a “remote” or past DLI, meaning the ALJ’s decision is dated after your DLI. If you have a “remote” DLI, and do not appeal an ALJ decision, thereby allowing it to stand, res judicata (Latin for “a matter [already] judged”), the doctrine of judicial finality would apply, and would prevent you from re-litigating what was already decided. Thus, a subsequent ALJ would generally be precluded from finding you disabled during any period before the date of the prior ALJ decision, which by definition would be prior to your DLI. This would result in your entitlement to Title II (SSDI) benefits being lost forever unless you returned to work for five years and re-established insured status. However, if you successfully appeal to the AC, and the ALJ decision is reversed, then the doctrine of res judicata would not apply, and you would be given another opportunity to attempt to prove disability prior to your DLI.

As you can see, the decision whether to appeal to AC is very difficult. An experienced Social Security attorney makes these types of decisions all the time and can help you make the right decision.