Because of Social Security Ruling 11-1p many claimants will now elect to file only a new claim after an unfavorable decision from an Administrative Law Judge (ALJ). My clients who are attempting to do so are encountering a brick wall of resistance from local Social Security field offices. They are being told that they may not file a claim until 60 days have elapsed after an ALJ decision. This potentially costs my clients in this situation two months of Supplemental Security Income (SSI) benefits as well as unnecessary delay. Social Security has not released to the public any instructions that would tell its staff to do what I am seeing. It is unclear to me whether I am seeing only a local phenomenon or whether there are instructions that have not yet been released to the public.
Are attorneys in other parts of the country seeing the same problem in having a claimant file a new claim after an unfavorable ALJ decision? Are there staff instructions that have not been released to the public?
Similar things are being told to clients in Wisconsin.
ReplyDeleteIf I had to guess, my guess would be that SSA is concerned about what to do if a claimant files a new application after an ALJ denial, the application is accepted, and then the claimant attempts to file an RR on the ALJ denial. Note there is nothing in POMS or the Ruling which would explain what to do in that situation. Does SSA dismiss the RR? Is the application that was already filed dismissed? I'm sure SSA doesn't want to know what a court would think about their refusal to accept an appeal. Is a Ruling sufficient to support that change?
ReplyDeleteNone of this, of course, justifies a made up policy that a claimant cannot file a new application until 60 days have elapsed. My only suggestion would be to write a letter that the claimant is filing for SSI and Title II disability. The letter would constitute a protective writing which would require SSA to use the date of the letter as the date of the application.
Waiting until the appeal period ends for the unfavorable ALJ decision makes sense before allowing a new filing, especially since claimants/attorneys could try to circumvent the new policy by filing a new claim immediately and then waiting a few days or weeks to appeal the unfavorable ALJ decision and hoping that SSA does not notice that an appeal was sought after the new claim was filed.
ReplyDeleteAlso, your clients are not really disadvantaged by having to wait two months to re-file. If your client was not disabled as of the date of the ALJ decision, your client is not going to be disabled a day, week, or month later barring some new injury or illness or sudden, unexpected, significant worsening of the existing ailments.
I would add that if a protective writing is filed, it needs to be signed by the claimant, not the representative.
ReplyDeleteI'm anon at 11:31 and 11:33. My response to Anon in between the two posts is just because something makes sense doesn't mean SSA can make up a policy without putting it in writing. Moreover, it doesn't make sense, because anyone who has any experience knows of cases in which the claimant is allowed by DDS on a subsequent application, even though the claimant was denied thorough an ALJ decision. Who knows why? it's the vagaries of the definition of disability, the peculiarities of different adjudicators, and the luck of the draw.
ReplyDeleteIf SSA wants to adopt a policy that a claimant must wait 60 days (by the way, should that be 65 days?) after an unfavorable ALJ decision before the claimant can file a new claim, let them try to adopt the policy, in writing.
Seems like this is just one way of interpreting the new policy that subsequent claims cannot be filed during the pendency of an existing claim (i.e...the claim is still pending if there is a right to appeal).
ReplyDeleteJust wait the 60 days and get over it. .
hrumph.
ReplyDeleteThe new policy allows that the protective filing date of a new application is the date that the claimant appeals to the AC. So, why not just appeal to the AC and then withdraw the appeal? Or not. Maybe the AC will send it back.
The ALJ decision is not final until the claimant's right to appeal it has expired. Therefore, until the 60 days has run, the claim is still pending and no new application can be taken pursuant to the new SSR. Just because you don't like it doesn't mean, its not completely logical under the policy.
ReplyDeleteThe most recent Anon above has an interesting argument. Setting aside the merits, if Anon thinks that Field Office employees will apply his "60 day rule" on the theory that the RH is still pending until the appeals period expires, without any written instructions telling them to do that, I suspect Anon is dreaming.
ReplyDeleteHere's the language from the Ruling, and the EM is not much more specific: "If, on the other hand, you decide to decline to pursue further administrative
review on the pending disability claim and file a new application, we will assess your eligibility for any other benefits and take applications for these benefits."
I question why anyone thinks that language would result in a uniform application of a 60 day rule without some instructions to field offices to interpret it that way. Perhaps there are such instructions and they have just not been made available to the public. Absent the instructions, I suspect the 60 day rule will be the exception, as field offices figure out what to do with subsequent applications. No matter which policy SSA wants applied, it would be silly for SSA to allow field office employees to make-up the policy based on their interpretation of the instructions. It would also be unfiar for claimants to get different answers depending on which field office they visit.
The last two sentences above at 11:23 am--happens all the time and has gone on this way for as long as I have worked at SSA. That is why there are court cases, and sdw cases, and disguntled claimants.
ReplyDeleteIt is easier for the FO to not accept any new application with one already in the disability system.
ReplyDeleteAn alternative would be to take the new filing, especially if it could be reduced to a check mark that "I am filing for DIB/SSI" only (with full interview and application process to follow, but not needed) with the FO issuing an on the spot ADMINISTRATIVE FORM DENIAL base on the prior application pending in the system. The claimant/attorney could appeal and be given more form denials. I believe that such administrative denials by SSA are NOT APPEALABLE beyond the AC.
This would be my recommendation -- but I am not in Baltimore being paid a high grade to make decisions.
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