Federal Appeals Representation

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Unfortunately, many truly disabled individuals received denials on their applications, requests for reconsideration, administrative hearings and requests for appeals council review. However, this does not necessarily mean that your case is over and done with. You can file a lawsuit against the social security administration in the U.S. District court in your jurisdiction. The Law Office of Robert C. Buckley, P.C. files such claims in the Eastern and Southern Districts of New York routinely. If you live in the NYC metropolitan area or Long Island, chances are your case falls within one of the jurisdictions.

The Basics of a Federal Appeal

If the appeals council denies your request for review you generally have 60 days from the date you receive your notice of decision to file your federal district court action. The district court action must establish certain criteria, at a minimum, to have a chance at succeeding. First, it must be timely. Generally, this is proven by simply including the appeals council denial letter as an exhibit to the complaint. Social Security assumes that it takes 5 days for their notice of decision to reach you by mail so you can calculate the filing deadline as 65 days from the date of the denial letter.

Secondly, and most importantly, you must show that the Administrative Law Judge (ALJ) or the Appeals Council (or both) made a significant error of fact or law in deciding your case. How do you do this?

Some Common Federal Appeals Arguments

In my experience there are two areas where ALJs typically makes mistakes in denying a claim. First, they may simply ignore a serious impairment. This is a crucial error, because at Step 2 of the Disability Sequential Analysis, an ALJ must address all serious impairments and consider them as potentially disabling. Very often they either omit an impairment by accident or they wrongly assume that an impairment is no significant enough to be considered carefully in the disability analysis. The fact is, well settled law in the Second Circuit, which includes New York State, says that the standard for consideration of an impairment as potentially disabling is "de minimis." This means, essentially, that any potentially disabling condition should be given the benefit of the doubt at this stage of the analysis, even if it will not ultimately count as a qualifying disability. 

The most common error I see -- by far -- occurs at Steps 4 and 5 of the disability sequential evaluation process. Step 4 is where SSA decides whether you can return to your previous work; and Step 5 is where they decide whether there is any other work you can do, given your limitations and in light of the fact that you may not be able to return to the work you had been doing. 

This is the phase of the disability analysis where the testimony of a vocational expert (VE) plays a vital role. The vast majority of my successful federal appeals have centered on implausible and unreasonable job suggestions at these stages. What usually happens is either the judge does not include all of a person's imitations in asking the VE about what a person can do (for example ignoring a person's inability to reach overhead or sit for more than 10 minutes at a time) or the VE fails to recognize that a job title actually demands abilities that the judge has already excluded. 

When this happens, there is a mismatch between the job(s) the VE says a person can do and the actual demands of those jobs. There is an industry standard publication called the Select Characteristics of Occupation that attempts to provide clear descriptions of all the strength, postural, and intellectual demands of every job in the U.S. economy. By highlighting any discrepancies between  an individual's documented limitations and the requirements of the jobs offered as possible work for that individual, your federal appeals disability lawyer can get your case back on track. Often this means getting a remand order -- which simply means that the federal judge instructs Social Security to give you a new hearing on the grounds that the first hearing was impacted by a mistake like the one described above. 

Of course, there are many other bases for filing a federal district court action against social security. Call today to see if you have a case. (347) 531-0821