April 17, 2014

If You Appeal an Unfavorable Hearing Decision, You Can No Longer File a New Claim as Well

Social Security Ruling 11-1pFor as long as I have been in practice, I have advised my clients that if they received an unfavorable hearing decision, they could file an appeal with the Appeals Council and, at the same time, file a new claim for benefits.

As of July 28, 2011, this “double filing” option is no longer available.

SSA has issued a “ruling” called SSR 11-1p which says in part:

Under the new procedures we are adopting in this Ruling, generally you will no longer be allowed to have two claims for the same type of benefits pending at the same time. If you want to file a new disability claim under the same title and of the same type as a disability claim pending at any level of administrative review, you will have to choose between pursuing your administrative review rights on the pending disability claim or declining to pursue further administrative review and filing a new application.

Social Security concluded that this new rule was needed because of the administrative complications of coordinating appeals with new claims.

This prohibition against concurrent claims does not apply if you are seeking a different type of benefit – for example, if you are appealing an SSDI denial, you could file a new claim for SSI benefits.

In my view, the question of whether or not to file a new claim vs. appealing a hearing denial will be most relevant to claimants whose insured status for Title II has not yet run out as of the date of the unfavorable hearing decision.   The Appeals Council process can take one to three years and the likelihood of success is not great.  On the other hand, a new case is likely to be denied by the Social Security adjudicator and a hearing will be scheduled before the same judge who denied case #1, unless that judge has retired or moved on in the interim.

 

 

 

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Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.

Comments

  1. Dennis Lewis says:

    My case concerns an SSI overpayment; I have exhausted all my administrative procedures. I’m now in the process of filing a civil complaint with the Commissioner of Social Security as the defendant. I need help with filing a civil complaint and any other help or information you can give me. While I was waiting on a response from the commissioner with my first application, I filed a new application with SSA, and SSA approved my new application while the first application was still pending with the commissioner. I’m not sure how I should proceed with my civil complaint being that I believe that the rules SSA found me disable under is the same rules that’s in my pending application. I spoke with SSA and requested what rules did they use to find me disable in my second application, and SSA refuse to give me what rules am I disable under. How do I go about getting that information from SSA?

  2. i have liver disease 0nly 5% working and have memory lost cant remember were iam cant work cant drive now cause i cant remember what to do too many meds to take and restroon to many times a day cant work,,,,

  3. Diane, it sounds like you have a good argument for disability based on these facts.

  4. Arthur dickens says:

    I am a 59 year old male heavy equipment operator. I have been in this industry for 30 yrs my sholder and neck have problems and my lower back .I am also a service connected veteran with a 50% disability on my hearing, i am also diabetic. do I have a case?

  5. Art, it depends on whether you have a treating doctor who will go on record to say that you cannot function in a simple, entry level work environment.

  6. I previously was denied for SSI about 2years ago because I had over 5K in my bank account. That has since been exhausted over a year and half ago as I had to pay for my nephews funeral. While my decision is pending Appeals Council can I now reapply for SSI?

  7. Eatha Greene says:

    Hello I am 32 years old in NC waiting for decision. My judge was cruel to me. I was wondering if my doctor filled out ss disability forms saying I basically cant even do secretary work. He didn’t ask the VE questions about jobs. What kind of sign was that. I have alot of medical records documented. Alot of were done. My lawyer wanted to change my onset date two years and wanted stick with CFS,headache,and pain as complaining issues. What are my odds? If the judge deny me my lawyer said he gonna have to dig deep to write a denial and it would be appeal able, he didn’t acknowledge a treating source opinion.

  8. Hi Jonathan, why didn’t Allsup who was representing me, not tell me this? Also, if approval for the Appeal Council is only 3% why bother? I live in Delaware where I understand the approval rate is the worst. I have Fibromyalgia, degenerative disc disease, herniated disc in my lumbar, and small bulging discs in my cervical spine, Vertigo, Carpal Tunnel, Bursitis in right hip, Arthritis in lf knee, neck, and back, Tube estauchian (which is ringing in ears, and intermittent loss of hearing) short term memory loss. What if any recourse do I now have if any, other than to try and go back to work since I’m about financially destitute?

    Thanks

  9. I am trying to find out if I should just file a new application or to appeal before an appelas council due to my credits on paper said runs out dec 2014. My lawyer at trial said my case went so well that the only thing judge may do is to start benefits at a later date. here is the situation. I stopped working in 2010 but have been seeing doctors since 2009 for my conditions and still have and when we went in front of a judge it lasted for less than 15 mintutes he did not really ask me any questions he asked the vocational expert about if I can do any of my past jobs she said no and then asked if I could do any new ones she listed 3 but said that due to my conditions I could not and would be fired so later it ended and my lawyer did not have to say anything he said this was due to it went well. Well I was shocked to see unfavoriable and it seems like the judge was lying in the report he said I was not creditable which he did not ask me but one question which was at time of 2011 I was collecting unemployment and he asked about this I said that I was in denial of my conditions and still tryed to find employment but when I did go to job interviews I had panic attacks but it was my brother whom applied for me and said that I do have some problems and that was the end of that also it seems like he did not even consider the vocational expert and my doctors psychiats options that said in report that I am mental and physically disabled from work. It is a long list now and it is just getting worse which I was adminted recent into a psyhiatric center for over 4 days. So I am waiting on my lawyer to see the best option but is it just better to file a new application or appeal which I dread due to the wait also my question is since my credits expire dec 2014. If I do a new applicaition do I still put my onset date that it occured?

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