Multiple Chemical Sensitivity and Social Security Disability, Part 5

Posted on Sep 26, 2009 by Susie Collins in Blog, Disability Rights, MCS, Michael Walkup

Appeals: You can estimate that it will take at least a year for the Appeals Council to render a decision.

Post by Michael Walkup, attorney at law.

Although each stage of the Social Security Disability process can be called an “appeal,” what I will be talking about here are appeals from adverse decisions following a hearing before an Administrative Law Judge (ALJ).

An adverse ALJ decision will be called an “Unfavorable Decision.” You may also appeal a “Partially Favorable Decision,” which will be a decision in which you were awarded some, but not all, of the benefits you were seeking. If you won entirely, it will be called a “Fully Favorable Decision.” You cannot appeal a Fully Favorable Decision even if you don’t like the rationale that was used to award the benefits, e.g. mental impairment.

You have 60 days to appeal an adverse decision which is done by filling out a form and sending it to the Hearings Office. The entire file, including the decision and a disc of the hearing testimony, will be sent to the Appeals Council in Baltimore, Maryland. You can send in additional evidence and make additional arguments, which again are done in writing only, to the Appeals Council.

You can estimate that it will take at least a year for the Appeals Council to render a decision. You can keep updating your file and adding evidence while that is going on. The average amount of time the person reviewing your file will spend on your case for the review is about fifteen minutes, so keep any comments short and to the point.

To the extent that anything favorable happens at the Appeals Council it will be probably be to remand the case back for an additional hearing with instructions to the ALJ rather than an outright reversal. The exception to this would be if there is some definitive evidence of a non Multiple Chemical Sensitivity condition which is disabling, such as bi polar disorder, for example, that was not raised before, or some definitive testing. This will not tend to apply in MCS cases, so you should at best look forward to a remand for an additional hearing. The remand hearing will be in front of the same judge as denied the claim originally, unless you move out of that Hearing Office’s area, in which case it will be transferred to the new office and re-assigned to a different judge. Your chances will be better if you can get the remand heard by someone new, “hint hint.”

If you lose at the Appeals Council, you can file a lawsuit against the Social Security Administration in the Federal District Court for your area. These are again decided entirely on paper with briefs submitted by both sides. A transcript has to be prepared of the hearing testimony. If the audio disc is not audible, the case will be remanded for a new hearing automatically.

Federal court cases are difficult in MCS claims as the federal courts tend to follow more restrictive rules of evidence for admission of expert testimony. Even though there are no rules of evidence in Social Security Disability cases, I find that these rules tend to influence the thinking of the federal judges nevertheless, making it difficult to convince them to accept what may be considered non-standard tests and opinions. The decision from any federal appeal also will be published nationally, so it can create a bad precedent for others. I therefore tend to discourage federal court appeals in favor of advising my clients to re-file for benefits, where possible.

You may re-file your application at the time of taking the Appeals Council appeal, while still pursuing that appeal. As the Appeals Council will take a year or more to decide your appeal, and, at best, will probably be sending it back for another ALJ hearing, which will take time to schedule, the amount of time it will take on an entirely new application may not be that much different. Also, even if you are still living in the same area, the new application will be assigned randomly to one of six or more ALJ’s in that Hearing Office, so the chances are that you will be assigned a different judge than the one that denied the previous claim.

The exception to this is if your “Date Last Insured” for disability benefits had expired before the date of the ALJ Decision. In that case, you will not be able to re-file a new application and will have to take all available appeals.

I will talk about that more in the next installment.

To be continued.

Link to all columns by Michael Walkup.

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This series on Multiple Chemical Sensitivity and disability rights is written by Michael Walkup, attorney at law.

Michael is an experienced disability practitioner with more than 25 years experience in the disability law field. In 2001, he became disabled due to Multiple Chemical Sensitivity (MCS), Chronic Fatigue Syndrome (CFS) and Fibromyalgia Syndrome (FMS). He now provides a service to advise clients with potential disability claims who have MCS, CFS and/or FMS. As these programs and law are usually federal, he is able to practice in all 50 states and, therefore, represent clients regardless of location.

Michael is a long time Sustaining Member of the National Organization for Social Security Claimants’ Representatives, the only national body for disability representatives. He is also certified as a Federal Trial Lawyer and is admitted to the U.S. Court of Appeals for Veteran’s Claims.

Michael would welcome the opportunity to possibly help with disability claims. For more information, visit his website MCS Legal Help at walkuplaw.com. Contact info: email MJWalkup@Amertech.net or call 866-880-4878.

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