How to Rebut New Evidence in a Long Term Disability Appeal

After submitting a long term disability (“LTD”) appeal through a group policy, a claimant may unexpectedly receive new reports or assessments from their insurer. These can include peer reviews, vocational evaluations, or other updated findings.

When this occurs, it’s often possible—and important—to respond. Below, we’ll explain when insurers issue new reports, what rights may apply under ERISA (the federal law that governs most group LTD policies), and how to approach this phase of the process effectively.

Note: This article is for general informational purposes only and does not constitute legal advice. The rights described typically apply to ERISA-governed policies, which usually come through an employer. Individual policies are typically not subject to the same rules. 

When do insurers introduce new evidence during the appeal process?

Insurers typically introduce new evidence after you’ve submitted your long term disability appeal, but before issuing a final decision. This period—known as the appeal review phase—is when your insurer re-evaluates your entire claim file, often by bringing in new reviewers or analysts. The goal, at least in theory, is to ensure the denial was justified. In practice, however, these newly generated reports can be used to uphold the initial denial.

During this phase, your insurer may:

• • Commission peer reviews by non-treating physicians: These doctors assess your medical records without examining you. They may offer opinions on your diagnosis, functional capacity, or need for restrictions.
  • Request vocational evaluations: A vocational consultant might analyze whether you can return to work based on general job descriptions or hypothetical roles, sometimes without fully accounting for your limitations.
  • Introduce new internal rationale: An internal analyst may attempt to reframe the original denial or introduce an entirely new basis for upholding the decision—for example, questioning your diagnosis or citing a mental illness limitation that wasn’t previously mentioned.

If your policy is governed by ERISA (the Employee Retirement Income Security Act of 1974), insurers are legally required to give you a copy of any new evidence or reasoning they plan to rely on before making a final determination. This gives you a “reasonable opportunity” to respond, which is critical to ensuring the fairness of the process. If you don’t respond, your insurer may finalize their decision based on evidence you’ve never seen or had a chance to rebut.

What are my rights under ERISA?

If your long term disability policy is governed by ERISA (the Employee Retirement Income Security Act of 1974), you are entitled to specific legal protections during the appeal process—especially when new evidence is introduced. ERISA was enacted to ensure that claimants receive a “full and fair review” of their benefit claims, and that includes the right to review and respond to any new reports, assessments, or rationale your insurer may develop during your appeal.

Specifically, if your insurer issues new medical reviews, vocational evaluations, or internal analyses after you submit your appeal—and plans to rely on them in making its decision—you have the right to:

• • Receive a copy of any new evidence or reasoning
  • Be given a reasonable opportunity to respond before your insurer finalizes its decision

These rights are grounded in regulations issued by the U.S. Department of Labor, which require that ERISA-governed plans follow procedural fairness. Insurers cannot rely on new, adverse evidence without first giving you a chance to address it. This ensures that you are not blindsided by arguments or findings that were never disclosed during your original claim or appeal submission.

This process is commonly referred to as a rebuttal opportunity. It gives you a final chance to correct errors, submit clarifying medical evidence, or challenge flawed reasoning before the decision becomes final.

It’s important to note that these protections only apply to ERISA-governed group policies, which are typically offered through an employer. If you have an individual disability insurance policy, these rules do not apply automatically, and your rights will be defined by your contract and state insurance law instead.

What common types of new evidence do insurers use during appeals?

When reviewing your long term disability appeal, insurers often introduce new forms of evidence to justify upholding a denial. These materials are created after you’ve submitted your appeal and can form the basis for the final decision. It’s essential to understand the types of evidence insurers may use—so you can respond effectively.

Peer Review Reports

Peer review reports are medical evaluations conducted by physicians hired by the insurance company who have not treated or examined you personally. Instead, they perform a file review—meaning they analyze your submitted medical records, physician notes, test results, and other documentation already in the file.

These reports often:

• • Disagree with the opinions of your treating physicians
  • Downplay objective evidence such as imaging or lab results
  • Suggest you are capable of returning to work with certain restrictions
  • Rely on outdated or selectively chosen records that paint an incomplete picture

Because peer reviewers are not your doctors and may have limited context, their conclusions can -misrepresent the severity and impact of your condition.

Vocational Assessments

Insurers frequently use vocational consultants to argue that you can return to work—either in your own occupation or in “any occupation” that exists in the national economy. These assessments are supposed to match your skills, experience, and medical restrictions to potential job options.

However, they can be problematic when they:

• • Rely on generic or outdated job descriptions from sources like the Dictionary of Occupational Titles ("DOT")
  • Ignore your actual job duties as performed for your employer
  • Fail to consider non-exertional limitations, such as reduced concentration, fatigue, or difficulty with attendance
  • Assume you can work full-time, despite functional limitations that make consistent performance impossible

This can result in unrealistic or inaccurate conclusions about your ability to work.

Reframed Rationale or “New Denial Basis”

Sometimes your insurer does not introduce a new report, but instead offers a new justification for denying your claim. This can be particularly frustrating if the new rationale wasn’t addressed in your appeal because it hadn’t been raised before.

Examples include:

• • Disputing your diagnosis altogether, even if previously accepted
  • Invoking a mental illness limitation that caps benefits at 24 months
  • Claiming a lack of “objective evidence”, even in cases where such evidence is hard to produce (e.g., chronic pain or fatigue)

This tactic may shift the focus of the denial, catching you off guard and requiring a fast, thorough response to preserve your claim.

How do I respond effectively to new evidence from my insurer?

If your insurer sends you new evidence during the appeal process—such as a peer review, vocational report, or revised rationale—you have a critical opportunity to respond. A well-prepared rebuttal can correct misinformation, provide context, and reinforce your eligibility for benefits.

Here’s how to approach your response and rebuttal strategically

Request the Full Report

When you receive the report, review it carefully. Pay close attention to:

• • What records the reviewer relied on
  • Whether any relevant evidence was ignored
  • How the reviewer justified their conclusions
  • Any inconsistencies or mischaracterizations

Understanding the full scope of the report allows you to respond in a precise and informed way.

Check for Errors or Omissions

• • Misstated or omitted test results, such as leaving out abnormal imaging or lab findings
  • Reliance on outdated records, ignoring recent evaluations that show ongoing impairment
  • Dismissal of conditions with fluctuating symptoms, like autoimmune or neurological disorders
  • Lack of attention to side effects from medications or how multiple diagnoses interact
  • Oversimplified or inaccurate job descriptions, which may understate the demands of your occupation

These issues should be flagged and directly addressed in your response.

Ask for a Treating Provider Response

Your own doctors can play a powerful role in rebutting insurer reports. A brief letter from a treating physician can:

• • Reinforce support for restrictions and limitations
  • Clarify the nature, frequency, and severity of your symptoms
  • Correct any misrepresentations or faulty assumptions made by the peer reviewer
  • Explain treatment decisions, including why certain interventions weren’t pursued
  • Emphasize the distinction between clinical stability and actual functional ability

A statement from a provider who knows your history carries significant weight—especially when it directly challenges your insurer’s narrative.

Submit Updated Medical Evidence

• • Functional Capacity Evaluations (“FCEs”) to objectively measure physical limitations
  • Imaging results (e.g., MRIs, CT scans) showing progression or persistence of a condition
  • Symptom diaries or logs documenting day-to-day challenges
  • Recent office notes from specialists, physical therapists, or mental health providers

Even brief updates can demonstrate that your condition remains disabling and medically supported.

Address Vocational Assumptions

• • Comparing the report to official job classification resources like O*NET or the DOT
  • Providing employer-provided job descriptions, especially if they highlight physical or cognitive demands
  • Including union or HR documentation outlining essential duties
  • Identifying how your restrictions conflict with job requirements, such as needing unscheduled breaks, being unable to sit for long periods, or missing work due to fatigue or flare-up

Disability decisions should be based on your real-life work demands, not generic assumptions. Use this opportunity to set the record straight.

Consult a Long Term Disability Attorney

An experienced ERISA attorney can:

• • Analyze your insurer’s report for medical, vocational, or procedural flaws
  • Coordinate with your doctors to craft targeted, effective rebuttal letters
  • Help gather and submit supplemental evidence, such as updated test results or functional evaluations
  • Ensure your rebuttal is strategically framed to preserve key issues for potential litigation
  • Communicate with your insurer to request extensions, dispute findings, or clarify procedural rights under ERISA

Because your rebuttal becomes part of the administrative record—often the only evidence a court can review in a lawsuit—it’s important to get it right. An attorney can help make sure your response is as strong and comprehensive as possible.

How long do I have to respond to my insurer’s new evidence?

ERISA regulations require that you be given a “reasonable opportunity” to respond when your insurer introduces new evidence during the appeal process—but the law does not define an exact timeframe. This lack of specificity can create confusion, so it’s important to understand what’s typical and how to protect your rights.

In most cases, insurers will allow a short window of 7 to 14 calendar days for you to submit a rebuttal. This period begins once the new report or rationale is disclosed to you. However, the timeframe may vary depending on your insurer’s internal policies, how close they are to their decision deadline, and whether you act quickly to request more time.

If you need additional time to gather medical input or prepare a detailed response:

• • Request an extension immediately, in writing
  • Document the request and any communications from your insurer about timing
  • Explain the reason for the extension—such as needing a physician’s review or updated testing

Insurers may not be obligated to grant extensions, but they often will if the request is reasonable and prompt.

If your insurer issues a denial before giving you a fair chance to respond, it could be a procedural violation under ERISA. Courts have emphasized that claimants must be given a meaningful opportunity to address adverse information. A premature denial could be grounds for further appeal or litigation, especially if it deprived you of the ability to correct or challenge critical evidence.

To avoid timing issues, respond as promptly as possible, keep clear records, and assert your right to a fair review if necessary. If you’re uncertain about your response window or whether your rights have been violated, it’s always advised to seek counsel from a long term disability attorney.

What common mistakes should I avoid when my insurer issues new evidence?

When your insurer introduces new reports or assessments during the appeal process, how you respond can significantly impact your claim. Even well-meaning claimants sometimes make avoidable mistakes that weaken their rebuttal.

Here are some of the most important pitfalls to avoid:

Missing the Response Window

One of the most damaging errors is failing to respond on time. Under ERISA, you’re entitled to a “reasonable opportunity” to reply—but your insurer is not required to keep the window open indefinitely. Some insurers may allow 7 to 14 days, while others offer a shorter period depending on internal deadlines.

If you receive notice of new evidence:

• • Act promptly to request the full report
  • Document all communication with your insurer
  • Ask for an extension immediately if more time is needed

Missing the response deadline could result in a final decision being made without your input, closing the door on your rebuttal rights.

Failing to Involve Your Treating Providers

A rebuttal carries much more weight when it includes the voice of a medical professional who has treated you over time. Trying to respond without input from your treating physician can leave you with an argument that feels unsupported or subjective.

Even a brief statement from your doctor can:

• • Dispute your insurer’s interpretation of your condition
  • Reaffirm your restrictions and symptoms
  • Highlight errors or omissions in your insurer’s review

Medical input helps transform your rebuttal from a personal objection into a clinical correction.

Ignoring the Functional Impact

It’s not enough for your rebuttal to reaffirm your diagnosis. Long term disability benefits are generally based on how your condition limits your ability to work, not the mere existence of a medical label. A rebuttal that focuses only on diagnosis may miss the key issue.

Your response should clearly explain:

• • What specific tasks or work duties you can’t perform
  • How your symptoms interfere with daily functioning
  • Why you can’t sustain regular work, even if you have good days

Functional capacity—not just your condition itself—is the heart of most disability determinations.

Allowing the Reviewer to Define the Narrative

Sometimes, your insurer’s reviewer frames your situation inaccurately. They may:

• • Misstate your job duties (e.g., calling your job “sedentary” when it’s not)
  • Ignore cognitive, stamina, or pain-related limitations
  • Assume a brief period of stability means you’re capable of returning to work
  • Suggest that non-compliance or insufficient testing is the issue

If you don’t correct these mischaracterizations, they may become part of the official justification for denial. Take control of the narrative by directly rebutting flawed assumptions and re-centering the conversation around your real-world limitations.

Not Consulting a Long Term Disability Attorney

Trying to navigate the rebuttal process on your own can be overwhelming—especially when facing complex medical reports or procedural hurdles. Failing to consult an attorney may result in missed legal arguments, overlooked opportunities to strengthen your case, or failure to preserve issues for litigation.

An experienced long term disability attorney can:

• • Identify and challenge flawed reasoning in peer reviews or vocational reports
  • Coordinate with your treating providers to draft effective responses
  • Ensure all rebuttal materials are submitted on time and properly documented
  • Highlight procedural violations that may support future legal action
  • Strategically build the administrative record in case the claim proceeds to court

Because courts reviewing ERISA claims are often limited to the administrative record, the rebuttal phase may be your last and best opportunity to influence the outcome. Consulting an experienced attorney can help you make the most of that opportunity and avoid mistakes that could cost you your benefits.

Does the right to submit a rebuttal apply to all long term disability policies?

No, the right to submit a rebuttal to new evidence does not apply to all long term disability policies. This important protection is available only under certain types of plans—specifically, those governed by ERISA (the Employee Retirement Income Security Act of 1974).

ERISA applies to most group disability insurance policies provided through an employer. If your coverage is part of a benefit plan offered at work, it is likely subject to ERISA. Under this law, insurers are required to follow strict procedural rules, including:

• • Giving you copies of any new medical or vocational evidence developed during your appeal
  • Providing a reasonable opportunity to review and respond before a final decision is issued

These rights are designed to ensure a “full and fair review” and are enforceable under federal law.

However, if you purchased an individual disability insurance policy on your own—outside of an employer setting—ERISA likely does not apply. These policies are governed by state insurance laws and the terms of your individual contract. That means:

• • Your insurer may not be required to share new evidence with you before making a final decision.
  • You may not be entitled to a formal rebuttal opportunity unless your policy specifically provides for one.
  • Any appeal rights and timelines will be dictated by your policy language and state regulations, not federal law.

If you’re unsure whether your policy is governed by ERISA, you can usually determine this by reviewing your plan documents or contacting your employer’s benefits department. However, the distinction between ERISA and non-ERISA policies can be complex. To ensure you understand your rights and options during the appeal process, it’s best to consult with a long term disability attorney. An experienced attorney can review your policy, identify what legal protections apply, and help you develop the strongest possible response to any new evidence from your insurer during your appeal.

Who can submit a rebuttal?

A rebuttal can be submitted by you, your treating provider, or a designated representative, such as an attorney. There are no formal rules under ERISA requiring that a specific person submit the response—what matters most is the substance and quality of the rebuttal itself.

• • The claimant (you) can submit a personal statement that identifies factual inaccuracies, explains the impact of your symptoms on daily functioning, or describes how your condition limits your ability to work. First-hand accounts can add powerful context, especially when combined with medical evidence.
  • Treating providers—such as your primary care doctor, specialist, therapist, or physical therapist—can submit written statements rebutting medical reviews, clarifying clinical findings, or reinforcing their support for your restrictions. Their medical expertise often carries significant weight, especially when directly addressing errors or misrepresentations in your insurer’s report.
  • An attorney can draft and submit a comprehensive rebuttal on your behalf. This might include legal arguments, analysis of procedural violations, and coordination of additional evidence, such as updated medical records or vocational documentation.

Ultimately, the persuasiveness of the rebuttal matters more than the identity of the sender. Ideally, a strong rebuttal includes both medical and factual corrections and is submitted in a timely and organized manner—regardless of who prepares or delivers it.

What happens if I don’t submit a rebuttal to my insurer?

If you do not submit a rebuttal after your insurer issues new evidence during the appeal process, your insurer is permitted to finalize its decision based solely on that new information. This means the peer review, vocational assessment, or internal rationale—however flawed or incomplete—may become part of the official record unchallenged.

Once the final decision is issued:

• • You lose the opportunity to correct factual errors, address medical misrepresentations, or submit updated documentation that could support your claim.
  • Any procedural concerns, such as not receiving the full report or being given inadequate time to respond, may go unpreserved if not raised before the decision is finalized.
  • If litigation becomes necessary, the court will likely only review the existing administrative record—which would now reflect your insurer’s unopposed conclusions.

Failing to respond can severely weaken your position. Even a brief rebuttal that flags major issues or includes a note from a treating physician can help protect your rights, preserve key arguments, and ensure your claim is not decided on a one-sided record.

Can I submit new test results or medical records to my insurer during this time?

Yes. If you obtain new medical records, test results, or other relevant documentation while you’re preparing a rebuttal to your insurer’s new evidence, you can—and should—submit them as part of your response. In fact, adding up-to-date medical information can significantly strengthen your position by reinforcing the severity and persistence of your condition.

Examples of helpful additions include:

• • Recent imaging studies (e.g., MRIs, CT scans) that confirm ongoing physical impairments
  • Functional Capacity Evaluations (“FCEs”) that objectively measure your ability to perform work-related activities
  • Progress notes or updated letters from treating physicians
  • Neuropsychological evaluation results, especially for conditions involving memory, attention, or processing speed
  • Symptom diaries or activity logs that document how your condition impacts your daily life

The key is timeliness. Your insurer must receive the new records before issuing a final decision on your appeal. If you are waiting on results or records, notify your insurer in writing and request a brief extension if needed. This ensures that the updated evidence can be considered—and included in the administrative record—before a final determination is made.

Can appeal rebuttals affect future litigation?

If your long term disability appeal is denied—even after you’ve submitted a rebuttal—your ability to pursue the claim in court is not necessarily over. However, the strength of your legal case will largely depend on what’s in the administrative record. The “administrative record” is the complete file your insurer used to make its decision, including medical records, correspondence, reports, and any rebuttals you submitted.

Under ERISA, courts reviewing a denied claim generally cannot consider new evidence. They are limited to reviewing the documents, reports, correspondence, and records that were available to your insurer at the time of the final decision. That’s why submitting a thorough and timely rebuttal can be critical—even if it doesn’t change your insurer’s decision.

Including a rebuttal in the record can:

• • Preserve key issues for judicial review: If you challenge your insurer’s vocational conclusions, medical opinions, or procedural behavior, that rebuttal becomes part of the record the judge will review.
  • Show that you actively responded to your insurer’s rationale: Courts may be more sympathetic to a claimant who engaged in the process and made a documented effort to correct errors or supply missing information.
  • Highlight procedural violations: If your insurer failed to give you enough time to respond or didn’t provide required disclosures, your rebuttal can help document those failures—potentially influencing how the judge evaluates the fairness of the process.

Even if your rebuttal doesn’t reverse the denial, it can influence the court’s view of whether your insurer acted reasonably and fairly. In some cases, a well-documented rebuttal can be the difference between a dismissed claim and a remand or reversal. It’s your final opportunity to shape the record before litigation begins.

What are some examples of effective rebuttals?

Effective rebuttals directly respond to your insurer’s new evidence using objective data, clinical insight, and real-world documentation.

Below are examples that illustrate how a well-crafted rebuttal can counter flawed or incomplete reasoning:

Example 1: Challenging a Peer Review About Physical Endurance

• • The insurer’s claim: A peer review concludes that a claimant with severe lumbar stenosis can sit for 6–8 hours per day.
  • The rebuttal: The claimant submits a recent Functional Capacity Evaluation ("FCE") showing they can only tolerate sitting for 20 minutes at a time. The rebuttal includes a detailed report from the FCE and a supporting letter from the treating physician confirming that prolonged sitting worsens pain and is not medically advised.
  • Why it’s effective: It uses objective, up-to-date testing to directly contradict the reviewer’s unsupported assumption and reinforces the medical necessity of work restrictions.
    
    

Example 2: Refuting a Vocational Assessment with Job-Specific Evidence

• • The insurer’s claim: A vocational consultant states that the claimant can return to “sedentary work” and is therefore not disabled.
  • The rebuttal: The claimant responds with an employer-provided HR job description and documentation from O*NET showing that the role in question requires frequent standing, walking, and multitasking under pressure. The rebuttal emphasizes that these duties are incompatible with the claimant’s restrictions on mobility and stamina.
  • Why it’s effective: It shifts the conversation from abstract job categories to the actual demands of the claimant’s specific occupation, supported by authoritative sources.
    
    

Example 3: Reframing Misleading Interpretations of Mental Health Records

• • The insurer’s claim: A psychiatric reviewer asserts that the claimant’s mood appears stable based on selected therapy notes.
  • The rebuttal: The claimant submits recent psychological evaluations documenting persistent panic attacks, executive dysfunction, and worsening anxiety, along with a therapist’s clarification that the “stable mood” comment referred only to brief intervals between episodes.
  • Why it’s effective: It exposes the reviewer’s selective reading of records and provides broader clinical context that paints a more accurate picture of the claimant’s functional limitations.

How can an attorney help with my appeal rebuttal?

An experienced long term disability attorney can be an invaluable ally when preparing a rebuttal to new evidence issued during your appeal. While you have the right to respond on your own, the rebuttal phase is a critical opportunity that can influence both the outcome of your appeal and any potential litigation down the road. A knowledgeable attorney can help ensure that opportunity isn’t wasted.

Here are some key ways an attorney can assist:

• • Analyze the New Evidence: Attorneys are skilled at reviewing peer reviews, vocational reports, and internal rationale for inaccuracies, omissions, or biased reasoning. They know what to look for and how to dismantle flawed conclusions.
  • Coordinate Medical Support: Your attorney can work with your treating providers to obtain targeted responses that directly address your insurer’s claims. They can also help frame questions or clarify what’s most helpful for doctors to include.
  • Submit Additional Evidence: If you’ve undergone further testing or treatment, an attorney can ensure that all new medical records, test results, and supporting documents are submitted in a timely and organized manner.
  • Develop a Strategic Narrative: Attorneys know how to shift the focus back to your real-world limitations. They can reframe the issues if your insurer has defined them inaccurately—such as misrepresenting your job duties or disregarding the impact of cognitive fatigue or chronic symptoms.
  • Preserve the Record for Litigation: If your appeal is ultimately denied, your rebuttal becomes part of the administrative record. A strong, attorney-drafted rebuttal ensures that all relevant arguments, evidence, and procedural objections are clearly documented for the court’s review.
  • Handle Communications and Deadlines: Your attorney can take over correspondence with your insurer, track deadlines, and formally request extensions when needed—taking that burden off your plate during a stressful time.

At Riemer Hess, we’ve been exclusively focused on long term disability law for over 30 years. Our firm has successfully guided thousands of clients through appeals, rebuttals, and litigation, helping them secure the disability benefits they deserve. We understand how insurers operate and how to strategically counter their tactics at every stage of the process.

Below is an example of a real client who we helped successfully rebut new evidence during a long term disability appeal.

Riemer Hess Client Success Story: Rebutting New Evidence in an LTD Appeal

After years of success as a senior marketing executive at a global cosmetics company, “Lori” found herself grappling with worsening symptoms of Chronic Fatigue Syndrome and fibromyalgia. Once known for her sharp strategy and tireless work ethic, she could no longer maintain the stamina required for her high-pressure role. When she filed a long term disability claim through her employer’s group policy, her insurer denied it—questioning the severity of her symptoms. Unsure how to move forward, Lori turned to Riemer Hess for help with her appeal.

As part of the appeal process, the insurer scheduled Lori for an Independent Medical Examination ("IME"). Anticipating potential bias, we arranged for a professional witness to accompany her. Both Lori and the witness reported serious issues with the IME, including the examiner rushing through the appointment and skipping basic physical testing. We coordinated a detailed witness statement and a supporting declaration from Lori herself. To counter the IME report, we also worked closely with Lori’s treating providers to draft strong rebuttal letters, ensuring each point raised in the IME was fully addressed with clinical evidence and practical context. These efforts were instrumental in persuading the insurer to reverse its denial and approve Lori’s LTD benefits.

Lori was deeply grateful for the outcome and the thorough, proactive support our team provided. She chose to retain Riemer Hess on an ongoing basis to protect her benefits moving forward.

Disclaimer: This article is intended for general informational purposes only. It does not constitute legal advice. For help addressing a specific disability claim, consult a qualified attorney at Riemer Hess.

If you’re looking to file a long term disability insurance claim for lung cancer, appeal a wrongful claim denial, or litigate your insurer, Riemer Hess can help. Contact us today at (212) 297-0700 or click the button below for a consultation on your disability case.