Scope: All Regions
Tracking Number: 11-015
Status: Active
Brief Question
If a claimant receives an unfavorable decision, can the claimant file a new disability application during the 60-day appeal period (plus 5 days mail time) for the prior claim?
Detailed Question:
If a claimant receives an unfavorable decision, can the claimant file a new disability application for the same title and benefit type (as the prior claim) during the 60-day appeal period for the prior claim?
Answer:
Yes. If the claimant receives an unfavorable decision, the claimant has the option of filing an appeal or filing a new application during the 60-day appeal period (plus 5 days mail time).
If the claimant files an appeal, we will not accept a new disability application while a prior disability claim for the same title and same benefit is pending at any level of review (initial, reconsideration, hearing or Appeals Council) unless the exception in EM-11052 REV applies.
If the claimant submits a request for reconsideration, request for hearing, or request for AC review to the FO [Field Office] after filing a new application, the FO will contact the claimant or the claimant's representative to advise they have the option of filing an appeal or filing a new application, but not both.
If the claimant appeals an unfavorable hearing decision to the Appeals Council after filing a new application, the AC will contact the claimant or the claimant's representative to advise they have the option of filing an appeal or filing a new application, but not both.
Category: Disability Policy
Posted: 08/18/2011
Subcategory: Subsequent Disability Claims
Answered on: 08/18/2011
Purpose: Policy Clarification
Answered by: ODP [Office of Disability Policy]
Last Reviewed: 08/18/2011
Responsible CO [Central Office] Component: ODP
Due for Review: 08/18/2012
I have a question. If the claimant refuses to withdraw either the new claim or the appeal, what is Social Security going to do? There are specific regulations on dismissing appeals and trying to appeal and file a new claim is not listed as a basis for dismissing an appeal.
7 comments:
They would likely dismiss the new claim as duplicate.
most likely escalate the new claim to the appeal level
I suspect they will look at which one was filed first. File a new claim, your AC review request will be dismissed. File the AC review request, and SSA will refuse to take a new claim.
If they are filed at the same time, my take is that the appeal will take precedence (given this is the reason for this change) and the new claim would not be processed.
There is nothing in any of the language of the ruling, POMS, the EM, or this teletype that allows for dismissal of an RR. There is probably a good reason for the absence of any instructions to do that. Refusing to accept a request for review is an immediate ticket for the attorney to file in court and have a court decide whether this policy was properly promulgated. It's one thing for field offices to refuse to accept applications while an appeal is pending, but something else for SSA to refuse to accept an appeal of a decision. Arguably the latter situation is governed by statute, and can't be changed through rulemaking. And SSA doesn't want to give a court a chance to rule on that issue.
So I expect in a contest between an appeal and a new application, the appeal always wins, even if filed later.
It has nothing to do with winning or losing--appeal vs. new claim. If a claimant chooses to file a request for review with the Appeals Council, then files a new initial claim, the initial claim is treated as a duplicate and sent to be associated with the claim already in progress. There's nothing new or novel here. It's amazing how people constantly try to complicate matters.
If there were a concurrent T2/T16 claim recently denied by an ALJ, can only the T2 be appealed to the AC while the T16 is refiled? Or vice versa? I don't see anything in the ruling or the policy statements that limits that.
To Anon immediately above: My opinion is worth the same as yours (nothing) but my opinion is, if a claimant appeals a concurrent ALJ denial, and limits the scope of the RR to Title II only, the claimant should be able to file a new SSI application. Since it is not specifically addressed in the ruling (other than the language allowing filing under a different title) I virtually guarantee that different cases will get different answers, depending on the AC branch and the FO involved.
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