Friday, June 3, 2016

Subsequent Applications -- Just Do It

For representatives that have clients whose cases go to federal court, the filing of a subsequent application can cause problems with the fees charged.  This is true whether the representative is also a lawyer that handles the case in federal court while pursuing a subsequent claim; the representative refers out the federal court claim and represents the claimant on the subsequent claim; or refers the client for the federal court claim and the subsequent claim to an attorney. 

1.  The Subsequent Claim

First things first, representatives have a duty to advise their clients on the ability to file a new claim with Social Security while the other claim is in federal court.  A grant of a subsequent claim cuts off the accrual of past due benefits for fees.  That works to the net benefit of the claimant and the net loss of the attorney.  Attorneys "shall consult with the client as to the means by which they are to be pursued."  ABA Model Rule 1.2(a).  This fits with the obligation to provide competent representation.  POMS GN 03970.010.    Absent an expired "date last insured" for Title II benefits, the only reason to endure the risk of litigation without putting all the eggs in one basket is to protect the prospective fee interests of the representative(s).  Attorneys must advise their clients of the right and effects of a subsequent claim under the ABA Model Rule.  See also California Rules of Professional Conduct Rule 3-500.

Most claimants will take the option to spread the risk of loss of past and future benefits and file a new claim.  The claimant can do so with or without representation.  If the claimant appoints a representative as to that claim and the prosecution of that claim results in the payment of benefits, that representative may charge and receive a fee under the fee agreement process. 

2.  The Court Action

On average, the courts grant relief in under half of the claims for relief presented.  Successful claimants may receive fee relief under the Equal Access to Justice Act.  Attorneys may take a lien or accept an assignment in those EAJA fees.  Attorneys may receive fees from the past due benefits, up to 25% of the benefits that result from the action for review.  The most common form of relief in a court proceeding to review the final decision of the Commissioner is a remand for further proceedings. 

3.  Consolidation

If the claimant receives a remand order from the court with the subsequent claim pending, SSA may consolidate the two claims for a single decision.  HALLEX I-1-10-25.  Two claims under the same title with abutting or overlapping periods of time present a single question of whether and when disability exists.  Two claims under different titles with overlapping periods of time present issues of collateral estoppel as to the whether and when disability exists to the extent of temporal congruence.  Two applications that do no overlap or abut the periods of time should not get consolidated. 

If the claimant receives a remand order from the court with a subsequent claim already in pay status, SSA may consider reopening and revising that grant of benefits.  Reopening puts the onus of quick action on the agency to resolve the matter diligently.  Carillo-Yeras v. Astrue.

If the claimant receives a remand order from the court with a subsequent claim already in pay status, SSA may affirm the grant of benefits on the subsequent application.  The claimant can proceed to decision on remand without concern that the agency will disturb the current pay status.  This is the best case scenario and more likely now than it was prior to SSR 11-1p

4.  The Potential Downside

The filing of a subsequent claim with a prior claim pending in federal court continues the development of the medical file.  SSA, through the state agency, will collect records to develop the subsequent claim and may send the claimant out for consultative examinations.  The presence of a subsequent claim permits the representative to have access to a drop point for newly developed medical evidence.  Those are positive points.  So is there a downside?

The potential downside to filing a new claim for benefits is that the state agency will collect records and possibly send the claimant out for new examinations while developing new opinion evidence from the state agency physicians.  New evidence may cut both ways.  With the 2015 revision to the regulations requiring the claimant and the representative to submit all evidence that relates to the claim, the perception of a way to avoid new harmful evidence takes on an illusory characteristic. 

The ALJ also has the right and perhaps the responsibility to send the claimant out for new consultative examinations on remand.  The remand refloats the application and the ALJ must adjudicate through the date last insured to deny the claim and through the date of decision to allow the claim or for an unexpired date last insured.  That makes evading the subsequent application to prevent development of other non-treating medical evidence a mirage. 

5.  Should the Claimant File a Subsequent Application While Pursuing a Federal Court Action?

For SSI - yes.
For DIB - yes if the claimant has an unexpired date last insured beyond the date of the administrative decision. 

Just do it. 

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