Social Security Ruling 11-1p

Effective July 28, 2011, the Social Security Administration (SSA) reverted back to an old policy that forbade claimants from filing new applications while they appealed an Administrative Law Judge (ALJ) decision to the Appeals Council (AC).  The policy change is found in Social Security Ruling 11-1p.  Claimants for benefits enjoyed the option of filing a new claim for benefits while pursuing an older claim before the Appeals Council when the agency changed its policy in 1999.

It wasn't just largesse that that pushed SSA to allow the new claim filing in 1999.  It was then taking the AC about 3 years to decide whether to grant or deny review of an ALJ decision.  The wait for 3 years and then another 2 years to get to an ALJ on a second claim for benefits put a staggering toll on claimants whose cases teetered on the cusp.  For the chronically ill, the absence of access to medical care for 5 years or dependency on the public healthcare system was sometimes a death knell.  The 1999 policy allowed those new claims to progress through the initial and reconsideration stages during that 3 year spell at the AC.  Many of those people received benefits on the new application, a few on reconsideration, and others got in line at the hearing office to see an ALJ on that subsequent claim.  The hearing office was not supposed to decide those cases pending at the AC, although it did happen from time to time.

Under Joanne Barnhart, SSA began to take a hard look at those egregious wait times for hearings and before the AC.  When Michael Astrue took over as the new Commissioner of Social Security, that concern took concrete form.  Commissioner Astrue mandated that the hearing offices decide all cases pending more than 1000 days old and gradually reduced that "aged" case mandate to 750 days.  Average processing times have been reduced to between 186 and 504 days.  The wait at the AC has been reduced from 3 years to about 1 year.

With quicker processing times both at the hearing level and at the AC, the need for the new application policy dissipated.  Many claimants still filed new claims and got granted on those cases while old cases meandered through the administrative process.  Since the AC continued to deny review of unfavorable ALJ decision 70-75% of the time, getting that new application in early did make a big difference.

The downside for claimants filing new applications rested in the nasty tendency of the AC to take the grant of the new application with the ALJ denial of the old claim, fold them together, and send both back to the denying ALJ for a second look.  It doesn't take a rocket scientist to figure out what a lot of ALJs did with those now combined claims.  It presented a situation fraught with peril as the disabled claimant had to decide with the ALJ's permission whether to dismiss the request for hearing on the old claim to keep the new claim or roll the dice and proceed to have both cases adjudicated.  Some of these cases had explicit reopening of the second claim by the AC, others implicitly giving the ALJ permission, and some giving no hint at what the AC intended at all.  Once in a while, a claimant would receive a remand on the old case from the AC with an express affirmation of the subsequent grant.  The varied scenarios that a subsequent grant created with cases pending at the AC probably played a big part in rescission of the policy to allow the subsequent application.

As a proponent of not putting all of my client's eggs in one basket, I routinely advised my clients to reapply for benefits after filing a request for review or District Court action.  That advice as to the latter stage will continue to constitute the modus operandi of responsible representatives absent circumstances such as an expired insured status for Title II (SSDIB) benefits and no eligibility for Title XVI (SSI).  I have seen far too many times the absence of that subsequent application hurt the claimant that changed age categories or suffered medical deterioration come back and bite the claimant in the pocketbook.  That general presumption to re-file at the AC level of review now requires finesse and lawyering.

The AC will treat the submission of new evidence that does not relate to the period of time adjudicated by the ALJ to represent a protected filing date of a new application.  In practical terms, this means that representatives must submit new evidence to the AC throughout the process arguing both that the new evidence undermines the ALJ decision and that if the evidence is dated after the date of the ALJ decision that it constitutes a protected new filing date on a new claim should the AC not grant the request for review. Representatives that do not refresh the medical records before the AC or remind the AC that the claimant has now entered a new age category "and this is a protected filing of a new application" will commit material error on behalf of their clients.  The word for that error is "malpractice."  Just as attorneys and non-attorney representatives that did not advise on the filing of a new application in the past have hurt their clients, I fear that the non-diligent representatives will fail to take advantage of the rules that now require us to make the protected filing date pitch.