For many disability representatives (non-attorneys and attorneys alike), if an application is denied by an ALJ and the Appeals Council does not grant review, then the claim is effectively dead.
That shouldn’t be the case. In order to best represent your clients, federal court appeals must be part of your overall strategy. I want to briefly describe the federal court appeals process and then explain how it can benefit both you and your clients.
First, ask the following question of every VE who has just finished identifying jobs in response to an ALJ’s hypothetical questions: “It is correct that in responding to the ALJ’s questions you considered no functional limitations beyond those specifically identified by the ALJ?”_ The VEs almost always say yes. In the event that the ALJ left anything out of the hypothetical questions, as is often the case, you just set yourself up for a strong federal court appeal. Most federal courts will remand for a new hearing because the hypothetical questions did not include all of the relevant functional limitations.
Second, any requests you make should be documented in the record either in writing or at the hearing. For example, if you request any subpoenas, consultative examinations, an additional hearing, or anything else, you need to have a record of that. Having off the record conversations with the ALJ or a clerk will not be enough. If the requests are honored they may help you build your case. If the ALJ ignores them, as is common, then you have a built in issue for an appeal to the federal courts.
Along these lines, do not believe ALJs who say the record is closed at the end of the hearing. That is simply not true. The reality is that the regulations and the Social Security Act provide that the record is open until the date of the ALJ’s decision. It is utterly routine for an ALJ to fail to address evidence submitted after the hearing. This is often a very strong issue on which to pursue an appeal to federal court.
There are almost a limitless number of ways in which ALJs can commit legal errors in writing their decisions. However, if you do the two simple things I talked about above in every case, you are setting yourself up for some strong appeals in federal court.
Overall, you should include appeals to the federal courts as part of your overall strategy for effectively representing your clients. If you do, it will produce benefits for both your clients and your business.
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