Is it possible to file a new Social Security Disability Claim when I have a prior claim pending?
Social Security Ruling (SSR 11-1p) [1] instructs local SSA Field Offices to refuse to accept a new application when a claimant already has a pending application that was denied by the Administrative Law Judge (ALJ) and has been appealed to the Appeals Council stage.
Prior to this rule, claimants could file a new application, and potentially win a new claim, while the prior decision was on appeal. Under this rule, a claimant has to wait till a decision is made on appeal before filing a new application.
What is Rule 11-1p?
Effective July 28, 2011, field offices will not allow a new disability application to be filed if a prior disability claim for the same program and same benefit is pending at any administrative level of review (initial, reconsideration, hearing, or Appeals Council (AC)).
However, there is an exception. When a claim is pending at the AC, the clamant may file a new application if:
The claimant has additional evidence of a new critical or disabling condition with an onset after the date of the hearing decision, AND
The claimant wants to file a new disability application based on this evidence, AND
The AC agrees the claimant should file a new application before the AC completes its action on the request for review.
This policy change does not apply if the pending claim is:
for a different title or a different benefit type,
a Continuing Disability Review (CDR) or age 18 redetermination, or
in federal court or was remanded from federal court to the hearing office or AC.
How Does this Rule Affect Social Security Claimants?
In the past, when a claimant lost at their hearing, they could file an appeal, and also file a new application at the same time. That way, even if they lost their appeal, their second application would be much further along. Now, the claimant has to decide if they are going to appeal or just file a new application. If the claimant decides to file a new application, they would be giving up all the back pay on their prior claim. Although most claimants may want to automatically jump on filing an appeal, keep in mind the wait times at the AC level, as well as the slim likelihood of the AC overturning the Judge.
In addition, because back pay benefits can only be paid up to 12 months prior to an application, if a claimant chooses to appeal to the AC, and the appeal takes 2-3 years to be decided (which happens quite often), and the claimant loses on appeal, there is a time period that can never be covered by an application. This means that since so much time has elapsed, even if you filed a new claim after you've lost at the AC level, you are limited on how far you can get back pay benefits. This appears to be a denial of due process rights, because the claimant is not able to file a second application soon enough to protect all of their back pay benefits. Claimants have a property interest in their claim for benefits that is protected by the Fourth Amendment. Day v. Shalala, 23 F.3d 1052, 1064-1066 (6th Cir. 1994).