Social Security disability policy change
Devastating news for disability applicants
By Ted Walkenhorst, Esq.
Disability Benefits Law Center
On July 28, 2011, Social Security announced a major policy change that will have devastating consequences for disability claimants who lose their claim at the hearing level.
Until that date, Social Security allowed claimants who received an unfavorable ALJ decision to both appeal the denial decision to the Appeals Council and file a new benefit application. This old policy allowed some individuals to qualify for benefits on their second application while they waited for the Appeals Council (or perhaps federal court) to rule on the appeal of their firstapplication.
Under the new policy which took effect on July 28, 2011, Social Security will no longer accept a second disability application if the claimant has exercised his or her right to appeal an unfavorable ALJ decision to the Appeals Council. In other words, effective July 28, 2011, if an individual receives an unfavorable decision from an administrative law judge they must make a choice. One choice is to appeal the unfavorable decision to the Appeals Council. The second choice is to let the unfavorable decision stand and file a new application for disability benefits.
The effects of filing an appeal. The primary disadvantage of this choice is that the Appeals Council is taking up to two years to decide appeals. During that time the claimant would not be able to file a new application for benefits. There are times when a new application results in a benefit award within six months. If an appeal is filed, a new application will not be accepted except in three very limited circumstances: 1) if there is a new medical condition that began after the date of the hearing decision; 2) after the Appeals Council has denied the appeal; or 3) if the new claim is for a different type of benefit.
The advantage of this choice is that should the appeal be successful, there is a good chance that the individual will receive all of the benefits that were denied initially, as well as ongoing benefits. In other words, a successful appeal will almost always result in a larger award of benefits.
The effects of filing a new application. If an individual does not appeal and files a new application, they will forever give up any chance of receiving retroactive benefits on their first application. Benefits will only be retroactive to the date of the new application. This could result in the loss of tens of thousands of dollars in retroactive benefits.
The advantage of this choice is that the individual has the opportunity to have benefits awarded much sooner (either by a state agency decision or another hearing decision).
Summary. This new policy is extremely unfair to claimants. It forces them to make a decision they have never had to make before. It guarantees increased financial hardship no matter which choice is made. Most claimants will not have the luxury of waiting up to two years for the Appeals Council to rule. They need benefits as soon as possible and will likely choose to forego the appeal and file a new application for benefits. By making this choice they will lose all of the retroactive benefits they would have won with a successful appeal. This can easily be tens of thousands of dollars.
Given this new SSA policy, it is even more important that claimant's win their claims at the hearing level or earlier. A hearing level loss was bad before, but now it may be financially devastating in terms of income lost forever.
Now more than ever claimant's need legal representation of the highest caliber. As a Martindale Hubbell AV rated firm, we provide that representation for clients.