As noted in a recent e-mail flash from NOSSCR (a great organization!!), the Social Security Administration recently published SSR 11-1p revising the SSA’s policy for handling subsequent applications when a prior claim is pending with the Appeals Council. Effective July 28, 2011, the Social Security Administration will no longer process a subsequent disability claim if a claim under the same title and of the same type is pending before the Appeals Council (though a subsequent claim can still be processed where an appeal is pending in Federal court). Certain key points to be considered:
- The change will not apply to subsequent applications filed before July 28, 2011.
- A claimant will have to choose between continuing with the administrative appeal or declining to pursue administrative review and filing a new application.
- Additional evidence reporting a new medical condition or a worsening of existing medical conditions can still be submitted to the Appeals Council. The Appeals Council will first determine if the evidence relates to the period on or before the date of the ALJ hearing decision. If it does relate to that period, the Appeals Council will consider it with the rest of the record. If the new and material evidence relates to the period on or before the date of the hearing decision and “shows a critical or disabling condition, the Appeals Council will expedite its review of your pending claim.” If the additional evidence relates to the period after the date of the ALJ decision, the Appeals Council will return the evidence to the claimant when the Appeals Council takes action on the appealed claim.
- The notice from the Appeals Council will inform the claimant that “under certain circumstances,” SSA will consider the date the request for review was filed as the protective filing date for the new claim. To be covered by the protective filing date, new Title II applications will need to be filed within six months of the date of the Appeals Council notice; new SSI claims will need to be filed within 60 days of the notice.
- The new application can be filed only after the Appeals Council completes action on the request for review of the first claim.
- If the claimant decides not to pursue further review of the pending claim, a new application can be filed. However, the claimant will need to withdraw the request for review.
- There are many unanswered questions about the procedural aspects of the policy change. The SSR provides few details of how the new process will work. SSA has announced that an “Emergency Message” will be issued on July 29 and that will be posted on the SSA website.
This policy change will lead to less claimant’s succeeding in their claims for benefits and/or longer delays in ultimately receiving desperately needed benefits. Currently, it often takes a year or two to get a decision from the Appeals Council and it is often that the subsequent application is successful on application or the claim makes its way to an Administrative Law Judge before the initial claim is even disposed of. If the claimant foregoes a possibly successful appeal, then the Social Security Administration has won by saving on not paying all of those past benefits. If the claimant waits until the Appeals Council makes a decision before applying again, then the Social Security Administration wins because they have cut off a vast amount of past-due benefits or, at least, delayed payment on benefits.
If you need more information about a personal injury matter (car wreck, truck accident, boating accident, slip and fall, etc.), SSD/SSI matter, or a workers compensation matter, please contact the Law Offices of Tony Farmer and John Dreiser for a free case evaluation. We can be reached at (865) 584-1211 or (800) 806-4611 or through our website at www.farmerdreiser.com.