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.
On an initial cursory look at this Ruling, I do not see any statement concerning cases where a new claim and an appeal are already pending. I do not understand how Social Security could issue this ruling without stating what it intends to happen on cases already pending.
Update: The reason I did not see any statement concerning cases where a new claim and an appeal are already pending is because the Ruling does not address this situation. In important respects, this Ruling appears to have been drafted hastily with no consideration of history.
17 comments:
It is great that SSA has finally taken steps to formally address this situation.
It should not change much at the hearing level, since the practice was typically to declare a subsequent application duplicative and dismiss it if there was a pending claim at the AC.
I'm an attorney analyst at the AC, and I think the new procedure will promote accuracy and efficiency. I especially agree with the Ruling's observation that the current process often produces inconsistent results that require time-intensive reconciliation.
As for claims that are currently pending at the AC where a subapp has already been filed, I don't read the Ruling as changing the way those will be processed. Much of the Ruling is prefaced with "if you want to file a new disability claim" type language, which suggests to me that the Ruling only precludes filing of NEW subapps while an RR is pending at the AC. But that's just my best guess.
This is huge. The AC's backlog has just been taken care of. Why file for AC review unless you've got a can't-loose appeal or a DLI issue. A lot of attorneys better start looking for different practice areas, because the pool of federal court clients is about to get a LOT smaller.
Anon at 2:00 p.m.
That's the problem, the fact that we're left to guess at what the agency means by this Ruling and as to what it covers. I wish they had been explicit. What will happen in the field offices when someone tries to file a subsequent app? Will they be turned away?
Regarding the comment above that this Ruling will avoid inconsistent results: is there something wrong with a system that reaches inconsistent results in many cases when the facts are essentially the same? If inconsistent results are reached frequently,one of them has to be in error. Isn't that a reason to allow multiple applications, so that errors can be corrected?
If the facts in two separate claims are different, then perhaps that is a reason for different results.
This Ruling is punitive for claimants in an appeal process as random as SSA's. A claimant with a good case can draw an ALJ who denies 80 %, get denied, and then have to wait two years for the AC to toss its coin or have to choose to give up their right to get the denial reversed and file a new claim out of desperation.
Regarding the comments in the Update: Maybe that's why the SSR uses the word "generally" in the language? Just saying.
So, if the determination is made, after an ALJ denial, to re-file and forego a possible federal court claim, I think you will see more and more attorneys getting involved with cases at the initial and reconsideration level and arguing to reopen prior applications.
Glad to see this. Seems sensible.
Characterizing this SSR as "punitive" implies that SSA is making a normative statement about having two claims pending for the same type of benefits, i.e. "This is wrong."
Really, SSA is saying, "This is allowed, but this is expensive." I suspect this is true across multiple components: the TSC, FO, DDS, ODAR and the AC. It was free for claimants and their attorneys to hedge their bets and give the subapp a shot; not so for Uncle Sam.
If anything, I'd view this as protecting agency resources from, not punishing claimants for, attempts to leverage the randomness of the appeals process in favor of a favorable outcome.
Another attorney-advisor at the AC here, we were told informally that already pending subsequent claims would continue to be processed until all had worked their way through the review process.
This is a big change - with no advance notice prior to implementation. That is highly unusual, one might say "knee-jerk" reaction to, what? For a system that purports to not need attorneys for claimants to receive justice that is asking alot of the claimant and one of the 3 corners has more responsibility for the alj. Coding seems less important now.
So, this must be one of those "policy changes" that were hinted at in the prior message that field office hours were being reduced. We are simply returning to the prior rules of yesteryear.
Unfortunately for reps, with the present electronic claims systems, the old "guerilla tactic" they previously used to use to get around this prohibition (i.e. filing the new claim, then waiting until near the end of the prior claim appeal period before mailing the AC review request on the prior claim directly to the AC) won't work anymore because the systems will immediately alert the AC about the existing new claim when they try to load the appeal.
If this screws attorneys I'm all for it even if it doesn't save a penny.
All you legal reps, c'mon! Who in their right mind would want a DDS to decide a case vs an ALJ? Statistically, an ALJ is more likely to get you the allowance and put money in your pockets. Enough of the dumb philosophies! You guys are all about business, not societal betterment!
Anon at 9:53, don't you mean the AC vs. an ALJ? If not, I'm not sure what you are referring to here.
I wonder what unintended consequences of the return to this policy will be? I confess, I did not have a large Social Security practice prior to the current policy, and have "grown up" so to speak with the policy allowing two claims. But, I am in one of the areas that has significantly reduced the hearing office backlogs. One of the first thoughts that comes to my mind is that there will be an increase in hearing requests. The DDS works quickly here; they deny lots of claims on spurious claims of non-severity. Getting from DDS denial to a hearing takes less than 6 months, sometimes much less. What of all the people who now will immediately, often on my advice, turn around and file a new claim? After all, I can't think of too many instances where it might not be better to take chances with a new judge than to wait 18 months for the black hole that is the AC to act. Unless someone's insured status will expire, I'll probably recommend a new claim, especially because the evidence will likely be stronger due to the speed with which the first claim proceeded. One downside to back-to-back ALJ hearings will be the ALJ's tendency to be biased against someone for filing back-to-back claims.
It helps the agency but gives a claimant a difficult choice. It's sounds very very republican to me.
I have to say, with our hearing office's denial rate, this is going to hurt a LOT of claimants. Our ALJ stats for approvals are 62, 40, 21 and 18. (there is also a new ALJ that just started, I am not counting him in this because we have no experience with him)
I've lost count of how many of our claimants have gotten approved on a new app by meeting a Listing, using the same evidence that was used in the older claim.
This new policy seems designed to hurt claimants and attorneys, because it drastically cuts down on retro benefits.
By the time a claim works its way through, our clients are typically bankrupt. They owe most of their retro to mortgage companies or other creditors. This ruling will affect all aspects of the economy, when claimants default instead of paying their debts.
We already do not receive compensation for all of our work on long-running claims; our claims are longer-running than in most areas of the country, because of our hearing office's denial rates. This policy will make it harder for us to be able to afford to continue to practice SSD law.
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