I stated in an earlier post that if denied at the ALJ Hearing level, you can appeal to the Appeals Council, file a new application, or do both. This information is now outdated.

Recently, Social Security handed down a new ruling that says when appealing an ALJ decision to the Appeals Council, claimants cannot file a new application, which changes what has been the rule since 1999. The now “old” rule allowed claimants to file a new application while their Appeal was pending at the Appeals Council (as the Appeals Council can take 18-30 months to make a decision).

What this means for claimants is that you must now choose between appealing the ALJ decision or filing a new application.

This ruling is part of a series of changes that are meant to help Social Security to decrease their heavy workload (and as some suggest, to tighten their purse strings).

You may still file a new application if there has been a critical or disabling change in your condition. Discretion is left to the field office where you apply – if the particular worker finds that there has been a critical or disabling change, they will allow you to file that new application.

However, this will be the exception rather than the rule – it is likely that Social Security field offices will use this ruling as yet another reason to turn applicants down. Further, “critical and disabling” is not well-defined, so it is hard to tell what evidence you would need to show the field office in order for them to allow your new application.

There is some movement among attorneys that this ruling violates your Constitutional  Due Process rights, and it may well be stricken down in time, but for now, this is the new rule.

This rule does not apply if you are filing for a different title or for a different benefit. For example, if your current pending claim is for SSD (Title 16) benefits, and you have NOT filed for SSI (Title 2) benefits, you MAY file a new claim for SSI benefits if your SSD claim is pending at the Appeals Council.

You may still submit new evidence of your disabling condition as long as it is before the date that you appealed to the Appeals Council – anything after that date will not be considered.  In that case, if you have evidence after you have appealed to the Appeals Council of your condition becoming critical or disabling, you may wish to dismiss your Appeals Council claim and file a new application.

Remember, you only have 60 days from the date of your denial letter to appeal.

If you have recently been denied by the ALJ and are trying to decide whether to appeal or to file a new application, please contact us for a free consultation.



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