Claims Can Be Taken During First 60 Days After ALJ Denial --- But ...

I am told that this recently showed up on Social Security's intranet:

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.

Poll

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For Californians Who Snigger At East Coast Reactions To Yesterday's Earthquake

Disability Statistics

Social Security has released its Annual Statistical Report On The Social Security Disability Insurance Program for 2010. If you think that higher and higher percentages of Social Security disability claims are being approved, take a look at the chart above. Note in particular the increase in technical denials.

The Sky Isn't Falling

     Kathy Ruffing at the Center on Budget and Policy Priorities gives a good antidote to the alarmist reports about the state of the Social Security Disability Trust Fund. Ruffing reminds us that money has been reallocated from one trust fund to another in the past and that this will happen again this time. 

     The reasons for the increase in the number of people drawing Social Security disability benefits are primarily the aging of the baby boom population, the increase in the number of women in the workforce and the increase in the full retirement age. 

     Ruffing's piece does include a chart showing an age and gender adjusted increase in the prevalence of disability over the last 15 years, although not a dramatic one. I have added the chart to the left. The chart is based upon a study done by Social Security's actuarial staff. The study includes some interesting projections on the prevalence of disability in the future. Basically, the actuaries have no clue. They think that the rate of people going on Social Security disability benefits could go up dramatically or down dramatically or not change all that much. They just can't say.

Answer To The Quiz

Question: Under Social Security policies which of the following does NOT count as an Impairment Related Work Expense (IRWE)?

• Medical insurance
• Attendant care by family member
• Residential modifications to allow work at home
• High speed internet service needed to allow telework
• Dog food for service dog

Answer: Medical insurance. See POMS §DI 10520.001 et seq.

Earthquake!

     There has been an earthquake which may have been centered in the Washington, DC area. The earthquake was felt as far north as New York City. I can report that it was felt as far south as Raleigh. I hope there has been no serious damage.

    Update: The earthquake was apparently centered near Louisa and Mineral, VA, which, I believe, is a fairly lightly populated area but not far from Richmond and Charlottesville. It was a magnitude 5.9.
    Further update: This is apparently the biggest earthquake in the recorded history of the state of Virginia.  What happened at Social Security headquarters? I have heard that the Pentagon and many other government buildings in Washington were evacuated.
     By the way, please, no smug comments from Californians.
     Further update: Social Security headquarters have closed for the day because of the earthquake.

Quiz

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The Real Problem Is Appeals Council Backlogs

     In the wake of Social Security Ruling 11-1p which seeks to prevent claimants from filing a new claim while an old one is pending before the Appeals Council, I thought I would check on my firm's oldest pending Appeals Council cases. We have one that was filed on January 8, 2009 and another filed on April 28, 2009.
     A claimant is supposed to wait over two and a half years for Appeals Council action without the possibility of filing a new claim? Social Security claims that it is trying to stop an abusive practice, but isn't the real problem the backlog at the Appeals Council? Take that away and there is little incentive to file a new claim while an appeal is pending at the Appeals Council.

     By the way, any numbers you get out of the Appeals Council on their backlogs are misleading. For many years, maybe decades, the Appeals Council has followed a practice of shoving the easy ones out the door as quickly as possible. If an unrepresented claimant files a request for Appeals Council review, it gets denied quickly, at least in Appeals Council terms. If a represented claimant files a request for Appeals Council review but the attorney or representative gives no specific reason for the appeal, it gets denied quickly. However, if the claimant is represented and gives good reasons why the Appeals Council should reverse or remand the case, expect it to take at least a year.

Fair And Balanced Reporting From The AP

From the Associated Press:

Laid-off workers and aging baby boomers are flooding Social Security's disability program with benefit claims, pushing the financially strapped system toward the brink of insolvency. ...
"It's primarily economic desperation," Social Security Commissioner Michael Astrue said in an interview. "People on the margins who get bad news in terms of a layoff and have no other place to go and they take a shot at disability," ...
The disability program "got into trouble first because of liberalization of eligibility standards in the 1980s," said Charles Blahous, one of the public trustees who oversee Social Security. "Then it got another shove into bigger trouble during the recent recession."  ...
Last year, Social Security detected $1.4 billion in overpayments to disability beneficiaries, mostly to people who got jobs and no longer qualified, according to a recent report by the Government Accountability Office, the investigative arm of Congress.