FAQ

This is definitely something we hear quite a bit and a very pervasive rumor that an applicant has to be denied X number or times, or can only win on appeal. The truth is that if the evidence is in the initial filing showing that an applicant meets the criteria for SSI or SSDI, he/she will be approved at the initial stage. Using the SOAR model results in higher approval rates (see our national outcomes) because we focus on getting all of the information in the file from the beginning, whereas many people who are eligible for benefits are denied because they don’t have assistance in gathering this documentation.

Some lawyers who take fees for assisting with disability claims specialize in appeals and don’t provide the evidence in the initial stage – they wait for the application to be denied and then work on the appeal. For an application at the appeal stage to be successful, the vast majority of the time it requires new evidence that wasn’t originally presented (there are some cases that are overturned due to oversights at DDS). So, it’s not that DDS wants to deny the case from the beginning, they just didn’t have the right information. It doesn’t save them any money to automatically deny people and then send them to appeal (in fact, it actually costs them more money in adjudicator time, medical records requests, and consultative exams).

All of that said, we understand why people think this is true. The overall national approval rate for SSI/SSDI (without SOAR) is only 29%. So yes, that means 71% of people are denied. It's not possible to know how many applicants needed more evidence and how many just didn't meet the disability criteria, but it certainly leads to many myths about the process.

Yes, we have a number of resources on the SOAR website to help provide information and guidance through the appeals process. They can all be found in the SOAR Library. I recommend starting with the article About Appeals and then checking out the Appeals Toolkit.

• The appeal must be filed within 60 days of receipt of the initial denial notice.
• The applicant must submit the following forms:
  • SSA-561: Request for Reconsideration
  • SSA-3441: Disability Report- Appeal
  • SSA-827: Authorization to Disclose Information to SSA
• Additional medical records and evidence can be submitted
• The application will be assigned to a different disability examiner and reviewing physician at DDS

The SAMHSA SOAR TA Center recommends that you don’t cite the Listing and Grid numbers, e.g.) Ms. Jones meets Listing 12.04, and the alternative Grid rule 203.03. Rather, at the DDS level (initial and reconsideration) we suggest providing a description of how the applicant meets a particular Listing(s) or Grid rule through specific examples from the medical records, applicant quotes, and other collateral sources.

ALJ hearings may be conducted using video teleconferencing (VTC) equipment, rather than in-person, if there is equipment available to conduct a VTC hearing and if this would be more efficient than conducting an appearance in person. Applicants have a right to object to a VTC hearing if using the VTC model would cause undue hardship or for other reasons specified in HALLEX regulations. 

Here is a link to SSA data on length of time it takes to get a hearing, by hearing office:  https://www.ssa.gov/appeals/DataSets/01_NetStat_Report.html.   You can also see how many video vs. in person hearings a particular office does, though there is much local variation on how cases are assigned to in-person vs. video dockets. While VTC hearings generally come up quicker, this is in the context of long wait times for hearing scheduling generally.  

It is our opinion that all applicants at the hearing level should be represented by someone who is knowledgeable about preparing and presenting claims at the ALJ level.  ODAR will have a staffer who will assist with the equipment, but not much more than that. An advocate will be able to directly examine the applicant and cross examine any experts that are present, e.g. vocational and/or medical experts.

HALLEX (Hearings, Appeals and Litigation Law Manual) is a publication from the Social Security Administration's Office of Disability Adjudication and Review (ODAR). ODAR administers hearings and appeals for people seeking reviews of their applications for disability benefits. HALLEX contains policy statements from the SSA's Appeals Council, as well as procedures directed to lower levels of the SSA for carrying out the SSA's guiding principles

The SOAR process can definitely be used to assist applicants with appeals, as SOAR practitioners are often well positioned to assist given their relationships with applicants and knowledge of their impairments and related functional limitations. SOAR case managers can help by gathering additional medical records, writing a Medical Summary Report, and assisting with SSA forms specific to the appeal process. More information on assisting applicants with appeals, including a full issue brief with tips for practitioners, is available in the SOAR Library.

In order to address the question of whether an applicant is capable of returning to work performed within the past 15 years, the ALJ will generally call a VE to testify. The VE is usually a licensed professional counselor, a vocational rehabilitation specialist, or another professional whose career has involved job placement, career counseling and working with people with disabilities. Although the VE is called by the ALJ, the VE is neither a government nor an applicant’s witness. The VE’s task is to offer a neutral opinion based on (1) the evidence and (2) the ALJ’s determinations as to the applicant’s functional limitations. The VE reviews the documents in the file which pertain to work, e.g. detailed earnings record, disability report, and work history report.  The ALJ will create a hypothetical for the purpose of eliciting the VE’s opinion on the applicant’s capacity to return to past work (Step 4) or perform other work in the national economy (Step 5). For more information on cross examining the VE, please contact Pam Heine at the SOAR TA Center, pheine@prainc.com.  Read more here: https://www.ssa.gov/OP_Home/hallex/I-02/I-2-6-74.html.

For the second question, the job must exist in significant numbers in either the national or local economy, where the applicant lives. Read more at https://www.ssa.gov/appeals/public_experts/Vocational_Experts_(VE)_Handbook-508.pdf.

No, it is our opinion that all applicants should be represented at the hearing by an individual who is knowledgeable about Social Security's decision-making process at the ALJ level, whether it be a lawyer, paralegal, or a SOAR case worker. Administrative Law Judges follow fairly strict rules about how to decide disability cases and what evidence can be considered. Although applicants can represent themselves “pro se” (i.e. “for oneself”), it is in their best interest to secure representation.  The applicant may find it difficult to learn enough about Social Security law to advocate for themselves professionally at the hearing.

Yes, the applicant will have a chance to speak for him/herself. The representative will ask the applicant questions which is called “direct examination.”  This gives the applicant a chance to tell his or her story. Also, the ALJ will often begin the hearing by asking the applicant questions. Remember, the ALJ level is the first time the applicant is seen face-to-face by SSA.  The earlier stages are paper reviews.

The second stage in the appeals process is when the applicant requests a hearing before the Administrative Law Judge (ALJ). These hearings are scheduled through the Office of Hearings Operations (OHO). Visit the SSA website to find the appropriate hearing office based on the applicant’s address or ask your local SSA field office. 

You can also take a look at Prior or Pending Applications and other Appeals resources in the SOAR Library.