Appeals Council Surprises

Empire Justice Center July 31, 2019

Since the percentage of Appeals Council reversals or remands are in the single digits, it is always notable when advocates are successful in convincing the Appeals Council to do anything other than affirm. Two advocates recently had the pleasure of receiving good decisions from the Appeals Council.


The Appeals Council granted a Request for Review, and, surprisingly, issued a rare partially favorable Appeals Council decision in a case handled by Nicholas Parr of the Legal Aid Society of Northeastern New York.


Nick’s client, who turned age 55 in November 2017, suffered from orthopedic impairments and was limited to light work by the Administrative Law Judge (ALJ).  The ALJ denied the claim because the client was deemed capable of her past relevant work as a factory worker.  The ALJ pointed to the client’s work experience from January 2006 – March 2006.  During this time the client worked for a temporary employment agency, which placed her in several factories and warehouses sorting products such as clothing and other apparel items.


Nick argued to the ALJ the position was not past relevant work (PRW) as it was not substantial gainful activity (SGA) since earnings did not exceed the 2006 SGA amounts.  Nick also pointed out that she had been placed in several different work sites doing different work tasks at each site and that no one placement lasted long enough to be considered past relevant work.  See POMS DI 25005.015 – Determining If Work Experience Is Relevant.  The ALJ did not respond to Nick’s arguments and, using boilerplate language, found “the claimant performed this job within the past 15 years, performed it long enough to learn and performed at substantial gainful activity levels.”



Nick renewed his argument at the Appeals Council, pointing out the client earned only $1,666.38 during the three months in question and averaged $555.46 per month at a time when the SGA level was $860 per month.  Unlike the ALJ, the Appeals Council did respond to Nick’s argument and found his contentions persuasive.  Citing the testimony of the vocational expert at the hearing, the Appeals Council agreed the client could not perform any other past work if limited to light work, and found the client could not perform past relevant work at Step 4.  The Appeals Council then adopted the ALJ’s education and past skill level findings to find the client disabled under the Grid on her 55th birthday.


The client is now receiving ongoing Supplemental Security Income (SSI) and State Supplemental Payments (SSP) benefits, and received over $4,000 retroactive benefits after interim assistance recovery.


In another case, Rochester attorney Jere Fletcher won a remand from the Appeals Council because the ALJ failed to consider additional evidence submitted post-hearing. Jere advised the ALJ that there were multiple requests for outstanding records from a health care provider. After the hearing but prior to the issuance of a decision, Jere submitted the outstanding evidence. The ALJ issued the decision without reflecting an evaluation of the evidence, which was also not made part of the record.


The Appeals Council acknowledged that Jere had complied with his obligation under 20 C.F.R. § 404.935 to submit or inform the ALJ about the evidence at least five business days prior to the hearing. The Appeals Council also pointed out that the hearing office failed to develop the record itself in accordance with 20 C.F.R. §§ 404.1512(b) & 416.912(b), and HALLEX I-2-5-13. On remand, the Appeals Council directed the ALJ to consider the additional evidence and, if necessary, obtain supplemental evidence from a vocational expert based on the new evidence.


Of note, this is not the first time the Appeals Council has remanded based on an ALJ’s refusal to consider evidence about which an advocate timely informed the ALJ. See the April edition of this newsletter.


Congratulations to both Nick and Jere. The successful results of Appeals Council advocacy in their cases emphasizes that every detail of the client’s case is important. Be sure to document efforts to obtain evidence, submit relevant evidence to the Appeals Council, and never give up the fight!