Update to Post: Just got my denial

On February 3, 2011 I wrote about what a claimant can do when they receive a denial from the Social Security Administration (hereinafter SSA) on their disability claim.  But now there has been a change in how SSA processes unfavorable Administrative Law Judge (hereinafter ALJ ) decisions, or the denial after the hearing.

In February, I wrote:

…you may want to start a new application rather than appeal to the Appeals Council.  You may also want to do both.  What should you do?

Change in processing claims at SSA

Today you can no longer do both.  That is, the SSA will no longer process a new application at the District Office if you have filed an appeal of the ALJ decision to the Appeals Council.

Why the change?

SSA says:

We have seen an increase in the of subsequent disability claims in recent years. When two disability claims under the same title and type are pending at the same time, there can be conflicting decisions that we must then reconcile. Subsequent claims may result in improper payments, increased administrative costs, and unnecessary workloads stemming from duplication. Because of these problems and the significant increase in the number of initial disability claims that we have experienced in recent years, we are changing our procedures for handling subsequent applications for disability claims of the same title and type.

Here are the Exceptions:

  • The claimant has additional evidence of a new critical or disabling condition with an onset after the date of the hearing decision, AND
  • The claimant wants to file a new disability application based on this evidence, AND
  • The AC agrees the claimant should file a new application before the AC completes its action on the request for review.

This policy change does not apply if the pending claim is:

  • for a different title or a different benefit type,
  • a Continuing Disability Review (CDR) or age 18 redetermination, or
  • in federal court or was remanded from federal court to the hearing office or AC.

Clearly, this makes life much easier for the Social Security Administration.  They no longer have to keep track of various claims filed by the same claimant for the same conditions floating around (both paper and cyberspace) in different parts of the agencies who handle the claims (Federal SSA and State disability determination agencies).

Why would a claimant file two claims anyway if the issue is the same?

The answer has to do with the delays in the administrative appeal process.

Here is the claimant’s situation:

I can’t work….I still can’t work….No matter how many times you deny my claim, I still cannot work!

Here is the claimant’s problem:

It takes SSA a long time to make a disability decision.  In the past, the delays at the Appeals Council were the longest.  And in FY 2010 the average processing time for a case at the Appeals Council was 345 days.  That, believe it or not, is improvement.  If the claimant also had to wait 1-2 years to go to a hearing, chances are their medical impairments are more severe than when the claimant first applied.  Often, a new look at your claim will result in an award of benefits.  But on the new claim, benefits cannot be awarded back to the original filing date.  So the claimant has to also file an appeal of the ALJ denial to the Appeals Council to try to get benefits back to that time…when they could no longer work.

But now, a claimant simply cannot do both.  So what should you do if you have an ALJ denial?  Well there is no easy answer to this problem. It may now be time to seek legal advice if you haven’t before because an experience disability attorney may need to review the case and figure out the best strategy for you in your case.  Every case will be different.

Here is one sticky question: If my condition worsens causing new problems, is that a “disability claim of the same title and type”?  For example, if you initially filed your claim because you were injured at work (knee, back impairment, etc) and you have diabetes but now your diabetes has led to neuropathy and your pain has caused depression, should you appeal the ALJ denial or file a new claim?  Clearly, your medical records will show your evolving worsening conditions.  When does one claim end and the other begin?  Should the date of diagnosis be the trigger?  That makes sense. But what if you were diagnosed with depression or neuropathy during the first claim and then had a significant complication later?

All of this will need some sorting out and SSA has agreed to assist claimants by “forward[ing] any additional evidence you submit to the office that is handling the pending claim so that it can be associated with that claim.”

Also, what are the consequences of not appealing to the Appeals Council and instead filing a new claim?

Entitlement on the prior claim may be forever lost.  Will this be adequately explained and understood by the un-represented claimant who shows up at the District Office with an ALJ denial and asks:  What do I do next?

I feel I have only touched the surface on this topic.  There are many unanswered questions.  So for now, I’m back to the trenches on my own cases, making sure each of my clients pursues the best winning strategy in his/her case.

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