In the past, Social Security claimants who had appeals pending at the Appeals Council level could file a second new application while waiting for their first application to be decided. Because of SSR 11-1p, this is no longer an option. Either you must wait for the Appeals Council to review the ALJ’s decision (which may take a year or more), or accept the ALJ’s unfavorable determination and try again with a new application and new onset date. The date will be the day after the ALJ’s unfavorable decision.
This rule was put in place due to the amount of conflicting decisions that Social Security then must reconcile. If a claimant is denied on their first application, but approved on the second while the first is pending at Appeals Council, what does that mean? More often than not, a claim pending at Appeals Council, if remanded back to the ALJ, would be consolidated with the second application so that both claims are heard by the ALJ at the same time. This can be confusing and time consuming for all parties involved.
Under SSR 11-1p, you can file a second application while your first is pending only if you develop a new condition that is significantly and probably disabling in and of itself, AFTER the date of the ALJ’s decision. SSR 11-1p states:
If the additional evidence that does not relate to the period on or before your hearing decision shows a new critical or disabling condition, and you tell us that you want to file a new claim based on this evidence, the Appeals Council may permit you to file a new disability claim before it completes its action on your request for review of the pending claim.
Of course, a claimant must also have the medical evidence to prove the new and disabling condition. The Appeals Council needs to see those records in order for them to make this determination.
This new ruling may have a lot of pros as far as the Social Security Administration is concerned (less conflicting rulings, as well as less claims to process), but it also has cons for claimants. If a claimant chooses to have his or her file reviewed by the Appeals Council, waits a year or more, and is denied again, that is a year that could have been spent developing a new claim. If a claimant were to choose filing a new application, they must choose an onset date that occurs after the date of the Administrative Law Judge’s (ALJ’s) decision, which means forfeiting years of back benefits.
Fortunately, a claimant can still file for a different type of benefit while their claim is pending at the Appeals Council. For instance, if a claimant initially filed a Social Security Disability Insurance claim (SSDI) that is pending at Appeals Council, and in the meantime qualifies to apply for Supplemental Security Income (SSI), that person can make that application and have it separate and pending from the claim that the Appeals Council is reviewing. A claimant can potentially win and receive SSI benefits before the Appeals Council even makes their decision on the SSDI claim.
Because this ruling is still relatively new, time will tell how well it will meet the needs of the Social Security Administration and claimants alike. The future choices made by claimants will best illustrate this.
Written by Anna Westfall & Attorney Andrew November