SSR 11-1p: can’t appeal and reapply for Social Security disability

By Tomasz Stasiuk, September 26th, 2011 | 4 Appeals Council | 2 Comments

A number of attorneys suggest that if you are denied at your Social Security disability hearing, you should do two things:

1. Appeal the Administrative Law Judge’s (ALJ’s) decision to the Social Security Appeals Council, and
2. File a new claim for Social Security disability benefits.

The idea was that the new claim would be evaluated by Social Security until it got to the hearing level, the the old claim was pending on appeal. There were pros and cons to this approach.

• Since cases often take in excess of 18 months at the Appeals Council, some advised to start the ball rolling on a new claim (which might get approved sooner).
• The problem was that a denial on the new claim might reinforced the correctness of the prior hearing denial which is being appealed.
• Also, if the new claim got to the hearing level, it was put on hold until the Appeals Council decided on the appeal of the prior hearing decision.
• If the Appeals Council denied the appeal, it might have a chilling effect on the new claim’s chances waiting to be heard at the hearing office.

Well, all this is a thing of the past.

With SSR 11-01p, Social Security now effectively makes you pick whether to appeal OR start a new claim.

Under the new procedures we are adopting in this Ruling, generally you will no longer be allowed to have two claims for the same type of benefits pending at the same time. If you want to file a new disability claim under the same title and of the same type as a disability claim pending at any level of administrative review, you will have to choose between pursuing your administrative review rights on the pending disability claim or declining to pursue further administrative review and filing a new application.

This applies to pursuing two cases of the same type. That is, both appealing and applying for SSDI benefits, SSI benefits, or a concurrent claim for both SSDI/SSI benefits.

You can still apply for benefits of a different type that those considered on the appeal.

This Ruling does not change the procedure we currently follow when you file a subsequent claim under a different title or for a different benefit type than a pending claim. When a subsequent claim under a different title or for a different benefit type shares a common issue with the pending claim, we will usually consolidate it with the pending claim through the hearing level. When you file a subsequent claim that is under a different title or is for a different benefit type and your prior claim is pending review at the Appeals Council, we will process the subsequent claim in accordance with our current procedures.

In practice, this exception to the “choose only one appeal option” will mostly come up in cases where an individual was applying for Social Security Disability Insurance (SSDI) benefits and the hearing denial deals with disability through the date last insured (DLI).

An appeal is usually the only option (unless there is a previously un-adjudicated period of disability), since the date last insured often precludes a new SSDI claim. However, an individual in this circumstance may still be able to file for Supplemental Security Income (SSI) benefits (which does not have a date last insured issue).

So, if you have a prior hearing denial for SSDI which deals with a date last insured, and can only start a new claim for SSI,  you are still able to apply and appeal. This is because the prior claim (SSDI) is a different type that then new claim (SSI).

Tomasz Stasiuk is the founding attorney of the Stasiuk Firm - a law firm devoted to exclusively handling Social Security disability cases in Colorado. Contingent fees available.