Appealing the unfavorable decision of an administrative law judge is the final step in the administrative journey to receive Social Security disability.  Unfortunately, about 82% of the appeals to the Appeals Council result in a denial of the Request for Review.  To add insult to injury, not only does a Request for Review have about an 18% chance of success, it takes about a year and a half for the Appeals Council to arrive at its decision.

In some respects, a Request for Review may appear futile.  However, it is necessary to file a Request for Review with the Appeals Council so that you can seek further review in Federal District Court.  In court, depending on the case, the chance of having the decision of the administrative law judge reversed, is much higher than at the Appeals Council level.   If you are one of the 82% who are notified by the Appeals Council that the decision of the administrative law judge should not be changed, then you have 60 days from receiving the determination of the Appeals Council to decide whether to begin another journey, the litigation journey.

Every person who loses an Appeals Council Request for Review of an administrative law judge’s unfavorable decision in a disability case has the right to request a court review.  A court review is litigation.  It involves filing a suit against the Commissioner of Social Security in the Federal District Court which sits in the judicial district where the claimant lives.  A claimant who wishes to file a civil action in Federal District Court must pay a filing fee of $400 to the U.S. Court Clerk.  Most people who are disabled do not have $400 to pay to file a civil action.  It is possible to ask the court to waive the filing fee requirement.  The request is done by completing a written waiver form, detailing the assets and expenses of the claimant.  If the court allows the case to be filed without the payment of the filling fee, the court will order the U.S. Court Clerk to file the case without a fee and will also order the U.S. Marshals Service to serve the summons and complaint on the Commissioner of Social Security without the need for the payment of service of process.

Often, a person will begin the disability process by going to a local Indianapolis Social Security office and apply for disability benefits.  Many times, the reason that the person is applying for benefits is because the family doctor said that the person can no longer work.  Sometimes the doctor writes  a note saying “patient is disabled.”  Armed with the note and the opinion from the his/her doctor that he/she can on longer work, the person expects to be placed on Social Security disability within weeks of applying.

The person is surprised to learn that after three to four months, Social Security has denied the initial application for disability benefits.  When that person comes to see me about the initial denial, we have a conversation about the effect of the family doctor’s statement and its impact on the decision making process at Social Security.  The fact is, a simple note from a treating physician has little influence on whether Social Security will award disability benefits.

Social Security regulations 20 CFR 404.1527 (d)(1) and (2) and 416.927 (d)(1) and (2) deal specifically with short physician notes.  (d)(1) states that “a statement by a medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we will determine that you are unable to work.”  (d)(2) reminds the reader that the final responsibility for deciding whether a person is disabled is a matter reserved for the Commissioner of Social Security.  This means that just because a treating physician writes that a person qualifies for disability under the rules and regulations for Social Security disability, there is no guarantee that the person will be found disabled.  The policy consideration underlying these regulations is that Social Security does not want private physicians and psychologists controling the federal disability system.

Before May 1, 2017, persons receiving notice of a scheduled hearing before an administrative law judge were advised to submit written evidence before the hearing.  They were also advised that if they were unable to submit the evidence before the hearing, they could bring the evidence to the hearing.  Based on 20 C.F.R. 404.935 and 416.1435 [51 FR 303, Jan. 3, 1986] the notice provided:

You are required to inform us about or submit all evidence known to you that relates whether

or not you are blind or disabled. Your representative must help you inform us about or submit

Effective January 17, 2017, the Commissioner of Social Security has changed how and under which circumstances the Appeals Council will consider evidence submitted to it.  Amending 20 C.F.R. §§ 404.970 and 416.1470 accomplished these changes.  [81 FR 90987.]  (These two regulations are identical except for the fact that 20 C.F.R. § 404.970 deals with Title II claims, and 20 C.F.R. § 416.1470 pertains to Title XVI claims.  The changes made by the Commissioner are the same with both regulations.)

So, how have these regulations changed?  Under the rules in effect until January 17, 2017 (the “old regulations”) a claimant who appealed an unfavorable decision of an administrative law judge to the Appeals Council, was allowed to submit additional evidence.  For additional evidence to be considered as part of the disability claim, the Appeals Council had to determine that the additional evidence qualified under the regulations.  Additional evidence “qualified” under the regulations if it was “new” and “material.”  The evidence also had to relate “to the period on or before the date of the administrative law judge hearing decision.”  If the Appeals Council determined that the additional evidence was nonqualifying, it would not consider the new evidence as part of its review of the unfavorable decision.

The question of whether the Appeals Council made an error of law in applying the regulations is reviewable by the federal courts.  (See, for example, Farrell v. Astrue, 692 F3d 767, 771 (7th Cir. 2012).  However, the question of whether the Appeals Council erred by refusing to accept the case is not subject to federal court scrutiny because review is discretionary.  (Farrell v. Astrueat 771.)  Under the old regulations, additional evidence was “new” if it had not been submitted and considered by the administrative law judge.  The evidence was considered “material” under the old regulations if the evidence related to the issues in the case.


The fact that some people use service dogs should not be overlooked in Social Security disability cases.  The use of service dogs for people seeking Social Security disability in Indiana can help establish a severe medical or mental issue. Normally, the people using service dogs must make some showing of a need for the use of the dogs to the organization which provides the dogs. This showing alone does not necessarily help establish a severe medical or mental issue. The services provided by the dog, however, can help establish a severe condition. Continue reading


There are seemingly endless ways to take away the much-needed money belonging to the poor, disabled and elderly. On July 20, 2017, the Acting Inspector General of Social Security, posted a warning on Social Security’s blog ( The warning was about a person who impersonated a Social Security Administration employee. The impersonator made calls to persons telling Social Security beneficiaries that they were due an increase of 1.7 percent for a cost of living adjustment on their Social Security benefits.

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On July 2, 1776, the Second Continental Congress (which was made up of delegates of the 13 original colonies) passed a resolution to become independent from the rule of King George III and Great Britain.  Apparently feeling a need to explain why Congress voted for independence, Congress debated the contents of a document for two days following the July 2 vote.  The document was drafted  by the Committee of Five (John Adams, Thomas Jefferson, Benjamin Franklin, Roger Sherman and Robert Livingston.)  On July 4, 1776, Congress approved the wording of the document.  That document, dated July 4, 1776,  was titled “The Unanimous Declaration of the Thirteen United States of America. ”  We now know it as the Declaration of Independence.

The part of America’s Declaration of Independence that is universally recognized is its second sentence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

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The hiring of Social Security administrative law judges has its origins with the passage of the Administrative Procedure Act (the “APA”) on June 11, 1946.  The APA was passed by Congress to allay Congressional, and public concern about the propagation of autonomous federal agencies created as part President Franklin D. Roosevelt’s New Deal.    The APA sets out to regulate these federal agencies.  The APA also sets the standard for Federal administrative law judges.   The goal is the ensure the independence of these judges so that the public will have confidence in their decisions.


Under the APA, the U. S. Office of Personnel Management is the federal agency which serves as the gatekeeper for administrative law judge candidates. Other federal agencies select these candidates, including the Social Security Administration.  Within the Office of Personnel Management is an Administrative Law Judge Program Office.  This office is responsible the recruitment of administrative law judges.   It also conducts interviews and general background checks of potential administrative law judges.  It administers the testing for the potential administrative law judges.

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