After the initial application is filed, the claim will be sent to Disability Determination Services (“DDS”). DDS is a state agency, funded by the federal government, whose purpose it is to make disability findings for the SSA. The DDS will assign the claim to a disability examiner. The examiner will ask the applicant to fill out questionnaires seeking additional information about his or her medical conditions, medical treatment, medications, work history and activities of daily living. The examiner will order and review the applicant’s medical records. Additionally, the examiner will usually have the applicant attend one or more consultative evaluations, which are medical examinations by “independent” medical experts.
It usually takes between 30 and 120 days for the DDS to process an initial application. However, some claims are processed very quickly, while others, due to complications (such as backlogs, delays in getting records and the need for multiple consultative evaluations), take much longer than the average time. Although not likely, it is possible for a claim to linger at the initial level for as long as one year. Once the DDS makes its initial decision (“disabled” or “not disabled”), the case will be sent back to SSA for final processing.
Most cases are denied at the initial level. In 2011 only 36.3% of all initial applications were granted. There has been a steady decrease in allowance rates over the past few years, and we believe the current initial level allowance rate is significantly lower now than it was in 2011.
After the initial level denial, the applicant has 60 days (plus 5 days mailing) to file an appeal called a “Request for Reconsideration.” It is very important to file the appeal timely. If the applicant files the appeal after the deadline, he or she must demonstrate “good cause” for missing the deadline. If the applicant is unable to show “good cause” for the late filing, he or she will have to start the disability claims process all over again, which will cause much delay and could result in the loss of substantial past-due benefits.
As part of the appeal, the applicant will be required to complete a 10-page questionnaire, called “Disability Report-Appeal,” otherwise known as a 3441 form. The 3441 form asks the applicant to update all his previous information, such as changes in the applicant’s medical condition, any new doctors and/or additional medical treatment received, a current medication list, new work activity, changes in the applicant’s activities of daily living, and any other new information which the applicant believes is important.
At the reconsideration stage, the case will be sent back to the DDS so that it can review its previous decision. The DDS will assign the case to a different disability examiner than who decided the case at the initial level. SSA will obtain additional medical records. In most cases, the reconsideration process will not take as long as the initial level process; it is not unusual to receive a decision on reconsideration within eight weeks. However, of course, it is possible for the reconsideration process to take as long or even longer than the initial claims process. The amount of processing time needed is determined largely by how long it takes the examiner to obtain the new medical records, how backlogged the examiner is, and whether the case involves special or unusual circumstances. There is no way to predict how long a particular case will take. Unfortunately, the allowance rate is extremely low at the reconsideration level. In 2010, for example, only 8.1% of all applications were granted at the reconsideration level.
Again, after the denial of reconsideration, the applicant has 60 days (plus 5 days mailing) to file yet another appeal. This appeal is called a Request for Hearing by Administrative Law Judge (“ALJ”). If the applicant files this appeal late, he or she must show “good cause” for the late filing or else will have to start the entire process all over again.
After the applicant has filed a Request for Hearing by ALJ, the case will be sent to a special division of SSA called Office of Disability Adjudication and Review (“ODAR”). ODAR will assign the case to a specific ALJ, and eventually the ALJ will set a hearing date. Usually it takes anywhere between 12 and 18 months for the applicant to receive a Notice of Hearing which sets the date, time and location of the hearing.
At the hearing level, DDS is no longer involved. The case is decided by the ALJ. This ALJ will have had nothing to do with any of the previous decisions and will be free to make his or her own decision. The applicant will not have to file a new 3441 form at this stage. The applicant will need to submit additional medical records because the ALJ usually will not do so. Shortly before the hearing, the applicant or applicant’s attorney will usually write a written memorandum or brief discussing the relevant law and facts and stating a legal argument why the applicant should be awarded benefits.
The ALJ will usually hold the hearing at the ODAR office where he works. The applicant always has the right to appear in person at the hearing. However, the ODAR office may be far away from the applicant’s home, so the applicant may opt to go to a closer location and appear by video teleconference (“VTC”). For example, many of my clients reside in the Chico and Redding areas, which are within the jurisdiction of the Sacramento ODAR office. Some of these clients believe it is very important for the ALJ to actually see them in person, and so they are willing to travel to Sacramento for their hearing. However, most find it too difficult to travel long distances, or even to obtain transportation, and therefore opt to attend VTC hearings at ODAR satellite offices in Chico or Redding. In those cases, I appear with my client at the Chico or Redding satellite office, while the ALJ is in his courtroom in Sacramento, and we are able to talk to each other over the phone and see each other through a video monitor.
ALJs have widely variable approval rates, so unfortunately an applicant’s chance of succeeding at the hearing level is largely dependent on which ALJ is assigned to his case. Moreover, due to increasing financial pressures on the SSA disability program, ALJ allowance rates have decreased over recent years. According to National Association of Social Security Representatives (“NOSSCR”), nationwide ALJ approval rates dropped from 62% in 2010 to 48% in 2013. However, even with the recent decline in ALJ approval rates, an applicant’s chance of winning is higher, at least statistically, at the hearing level compared to the initial or reconsideration level.
The applicant has 60 days to appeal an ALJ decision. The first level of post-ALJ appeal is with the Appeals Council (“AC”), which is located in Falls Church, Virginia. (Don’t worry, you don’t have to travel to Virginia, as these appeals are decided on the record.) According to NOSSCR, in 2013 78% of all AC level cases were denied, 4% were dismissed, and 17% were remanded back to the ALJ for a new hearing because of legal error made by the ALJ.