Social Security has issued new instructions on its policy of prohibiting new claims for disability benefits while an appeal is pending at the Appeals Council,. No one would have much problem with this if the Appeals Council could resolve appeals in three months or so but the Appeals Council often takes two years and more. In effect, the Social Security Administration is making it almost impossible for poor claimants -- and that's most of them-- to appeal from an Administrative Law Judge decision. That's wrong.
13 comments:
It looks to me like they can file a new claim, if they are unfortunate enough to get a critical medical condition that was never considered in the appeal-case. I see SSA's point; why have the "same" case at appeal and also at the DDS; seems duplicative when there are millions more people waiting for a decision, while others have 2 different offices reviewing the "same" claim for the same person, then potenitally arriving at 2 different decisions for the "same" claim.
If I'm playing devil's advocate, this appears to be an efficient way of doing business, and the "poor" claimants can't expect much more than "not poor" claimants. The poor can expect a decision in time, just like the not poor can expect.
Now, if you equate "poor" person with a lazy schemer trying to seek benefits they don't deserve, then they can wait for a decision for the rest of their lives for all most of care.
Absolutely agree with the new procedure. A claimant can always seek benefits for the period after the hearing decision date. But it makes no sense to allow multiple claims on overlapping time periods at different stages in the application process.
The embarrasingly long time frames at the AC is a related problem, but giving claimants carte blanche to paper the agency with claims and medical info is not the answer.
An additional facet of this is that it is a reduction in tasks due to lack of staff. Bit-by-bit, work processes have been truncated, lower priority worklads have been deferred, trying to keep the ship moving forward. Now, it is reaching the point where workloads have to be jettisoned and only the most critical items addressed. Now if they would just do away with forced T2 claims for obviously uninsured SSI claimants, some real progress might be made.
Anonymous 12:16 and 12:35 miss the fact that by pursuing an appeal of right that the claimant has to the AC, and needing to wait 2+ years for a decision, the claimant is potentially giving up a claim to a period of benefits in relation to a subsequent period of disability.
Anon at 9:29, can you clarify what you a mean a bit, I'm not sure I understand. Under what circumstances will new evidence of impairments post hearing result in a favorable state agency determination for a period of disability that submitting the new evidence to the A/C, winning remand, and getting a later onset favorable on remand would not also get?
I don't think that there's a waiver of any discrete period of disability by filing an appeal instead of filing a 2nd app. Can you explain what kind of claim they are actually giving up in more detail?
The main problem: Having multiple cases pending and multiple levels is an administrative and systems nightmare. Difficult to track what is happening at what level. Had one case very recently in which a 'subsequent claim' was filed while earlier case was pending with the Appeals Council. New case was allowed by DDS (Disability Determination Service) with 2009 onset. A/C remanded old case for a new hearing. Both the new (allowed) case and the old case were consolidated. The ALJ's decision found an onset date in 2010. Result: A $10,000.00 SSI overpayment. :-(
The claimant has a statutory right to appeal, which is eviscerated by SSA's new policy. A claimant who does not appeal to the AC can lose T2 (if the DLI is in the past). In every case, since the FOs put the date of onset for subsequent applications as the day after the ALJ denial, months/years of T2 and T16 checks are lost by not appealing to the AC.
The AC phone message states that AC reviews will take 10 months, but I was told this week by AC to expect up to 18 months. This does not appear to be "start to finish", but the waiting time for AC to look at the case the first time (ie, to send the rep the file/hearing recording). I was told AC is slammed with a huge number of cases. Even critical cases aren't being worked timely.
Justice delayed is justice denied, particularly when the claimant has such a Hobson's choice.
The claimant has a statutory right to appeal, which is eviscerated by SSA's new policy. A claimant who does not appeal to the AC can lose T2 (if the DLI is in the past). In every case, since the FOs put the date of onset for subsequent applications as the day after the ALJ denial, months/years of T2 and T16 checks are lost by not appealing to the AC.
The AC phone message states that AC reviews will take 10 months, but I was told this week by AC to expect up to 18 months. This does not appear to be "start to finish", but the waiting time for AC to look at the case the first time (ie, to send the rep the file/hearing recording). I was told AC is slammed with a huge number of cases. Even critical cases aren't being worked timely.
Justice delayed is justice denied, particularly when the claimant has such a Hobson's choice.
Let me clarify. Clmnt is 49 and 11 months and ALJ denies based on ability to do sedentary work. Clmnt disagrees with ALJ and wishes to seek review by AC. AC takes 2 years to deny request for review. Clmnt files new claim and is again found limited to sed work but is now 51 and 11 months and grids based on educ, and past work. Clmnt will only be eligible for 1 year of retro benefits. If clmnt could have filed a new app in addition to AC request for review, they would have been found disabled at 50 and paid benefits beginning 6 months later. By deciding to pursue the appeal of the ALJ denial and wait for the AC to decide it, the clmnt had a net lose of benefits compared to situation if they did not invoke their right to appeal and just filed a new app.
This new instruction also seriously modifies SSR 11-1p. 11-1p only required a "new disabling condition". What does that mean? Good amount of leeway for argument. This essentially changes it to a listing impairment or TERI case.
This isn't a Hobson's choice. This is a choice between two sucky alternatives. Hobson's choice would be if you elimiated the new application altogether, and then you're choice would be file an AC or abandon your claim. (i.e. take it or leave it).
Justin
Another problem is how long the claimant must wait at ODAR for a new hearing after an AC remand, adding to the difficulty of the decision for claimants with ALJ denials. In my last remand, it was one year from the month the case was remanded to ODAR to the the month the claimant had his remand hearing (which was favorable, because I had argued all along that the claimant met a Listing, and the ALJ finally acknowledged this). So now we're talking close to 3 years waiting time where the claimant had to find some way to live with no source of income. I think SSA in putting this policy into place is doing a great disservice to claimants, poor or otherwise. And I have a simple answer to the overpayments situation after consolidation of the 2 claims and a different onset date - waive them, since the claimant made his or her claim in good faith and it was not his/her fault the overpayment occurred!
SSA could get rid of forced SSI claims as well to save resources - a colleague of mine with a very good income applied for Medicare only and the CSR repeatedly insisted on taking an SSI claim, which she repeatedly refused. But this was an attorney who represented clients before SSA and so knew the whole concept of taking an SSI claim for her was ridiculous - the average person does not and many dollars and much time gets wasted on these technical denials.
One overlooked scenario: an SSI only claimant applies, has representation at ALJ hrg, and loses. The rep files AC request, and the claimant (unbeknownst to the rep) files a new SSI app on her own which is approved. The AC remand combines both cases, and at the remand hrg the ALJ awards a PF closed period which ends prior to his first denial. Keep in mind that over nearly 2 years pass from the time of initial ALJ denial (and claimant's favorable new app) and the second ALJ decision. Now claimant has an OVP of more than $11k, no more ongoing benefits, and a rep who will be chasing her for a $6k fee petition he will never receive.
In case it wasn't clear yet, that rep is me and this just happened.
As much as I don't like the new app filing rules, at least it would have saved me a boatload of headache on this particular case....
If the claimant is looking to re-apply, why not cancel the appeal request? What am I missing here (other than the fact that this whole process needs to be done in about 25% of the amount time it takes now)?
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