So you missed your deadline to file an appeal. What do you do next? Start over? There may be a better solution. Often, I receive calls from individuals (aka “claimants”) who have applied for, and have been denied, Social Security Disability Insurance and/or Supplemental Security Income. The problem is, the deadline to file an appeal has passed. The scenarios vary but the end result is the same.
Typical scenario:
Social Security claimant files an application for disability benefits. The claimant waits five to nine months for a decision. During that waiting period, the claimant goes through financial struggles; they’re dealing with their physical and/or mental impairments; or, they are moving from one place to another, with some ending claimants living on the streets or in homeless shelters. Social Security then issues a Notice of Disapproved Claim(s) and gives the claimant 60 days to appeal. Some claimants never receive the denial notice because they have moved or because the address they are using is just a mailing address and is thus unreliable.
By the time the claimant calls my office (or another attorney), some days, weeks, or months (beyond the 60 days to appeal) have gone by. The claimant feels betrayed by “the system” and now the claimant feels as if the last nine months have been a waste. I encourage anyone who has missed a deadline for an appeal to seek the assistance of counsel (or a non-profit organization) to evaluate your situation.
Admittedly, Social Security is very strict with deadlines. But, it also recognizes a claimant’s unfortunate circumstance. At each level of appeal (Reconsideration, Hearing, Appeals Council), the Social Security Administration has rules that outline the reasons, or “Good Cause”, for filing an appeal late. First thing that needs to be done is to file your appeal. Then, submit your written explanation of why you filed your appeal late. Social Security has provided a list of reasons you can use as “Good Cause”. Please keep in mind, the list is not exhaustive. If you have a reason that does not fit nicely within one of the categories, pick the closest one.
Examples of circumstances where good cause may exist include, but are not limited to:
(1) You were seriously ill; (2) There was a death or serious illness in your immediate family; (3) Important records were destroyed/damaged; (4) You were trying very hard to find necessary information to support your claim; (6) Social Security gave you incorrect information; (7) You never received the Notice of decision; (9) Unusual or unavoidable circumstances exist . . . which show that you could not have known of the need to file timely, or which prevented you from filing timely.
See 20 CFR § 404.911(b). My favorite reason is (9). “Unusual or unavoidable circumstances exist” can be used for a variety of circumstances. If all else fails, use (9) and make your case. When possible, provide supporting evidence of your “Good Cause” such as medical reports, witness statements, police reports, etc. You will need to submit a written explanation which should be signed under penalty of perjury. Or you can use Social Security’s form: www.socialsecurity.gov/online/ssa-795.pdf . Always, ALWAYS, keep a record of what you send to Social Security. So don’t let any more time go by. File your appeal and get the benefits you deserve. See below for more information.
Request for Reconsideration – If you have received a Notice of Disapproved Claims, Social Security will decide whether you meet the “Good Cause” standard. 20 CFR § 404.909. If your reason is accepted, Social Security will move forward with your appeal. If your reason for filing late is rejected, you may consider filing a new application and request a reopening of the prior application (we’ll save this topic for another day).
Request for Hearing; If you have received a Notice of Reconsideration, but filed your Request for Hearing after the 60 days, an administrative law judge will decide whether you have “Good Cause” for filing your appeal late. 20 CFR § 404.933. It is often the case that the judge will be more sympathetic to your situation, especially because you have already waited a very long time to get to where you are at this level.
Request for Review: If the administrative law judge dismisses your Request for Hearing for filing your appeal late, you can file a Request for Review of the Hearing Decision/Order with the Appeals Council. Social Security can provide you with the form. Or you can cut and paste the following link: www.socialsecurity.gov/online/ha-520.pdf . Submit the completed form to Social Security and to the Appeals Council. The address for the Appeals Council is on the form.
