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CCH® UNEMPLOYMENT INSURANCE — 8/23/11

SSR 11-1p: Claimants now must choose between appeal or new claim

In a move designed to reduce “unnecessary workloads stemming from duplication” the Social Security Administration has changed the rules that previously allowed a claimant to submit a new disability claim while a prior claim was pending. Under Social Security Ruling 11-1p, a claimant no longer will be allowed to have two claims for the same type of benefits pending at the same time. Rather, a claimant who has been denied benefits at a hearing will have to choose between pursuing his or her administrative review rights on the pending disability claim or declining to pursue further review and filing a new application.

This ruling presents many claimants with a Hobson’s choice: delay filing a new claim until an appeal under the pending claim is exhausted, but lose the benefits that might have been received under the new claim for the period during which the earlier claim is pending and further delay what might have been a more compelling new claim, or file the new claim, but potentially forego years of back benefits under the earlier claim that might have been allowed under appeal.

Going forward, the SSR provides guidance for three scenarios in which new evidence is submitted.

1. If the claim is pending at the initial, reconsideration or hearing level, a claimant will continue to be able to submit evidence of a new medical condition or a worsening in existing conditions. That evidence then will be considered along with all other evidence in the file. See Regs. 900(b) and 416.1400(b).

2. If the claim is pending at the Appeals Council and new material evidence is submitted that relates to the period on or before the date of the hearing decision, the Appeals Council will consider it together with the entire record. If that evidence “shows a critical or disabling condition,” the Appeals Council will expedite its review of the pending claim. Regs. 404.970(b) and 416.1470(b). This is not entirely clear however, since all disability claims, presumably, are filed with the intent of showing a disabling condition.

3. If the additional evidence does not relate to the period on or before the hearing decision, the evidence will be returned and an accompanying notice will explain why the Appeals Council did not accept it. Under this circumstance, the Appeals Council will consider the date of the request for Appeals Council review of the earlier claim as the filing date for a new claim. If the original and new claims are filed under Title II, a claimant will have six months from the date of the notice within which to file the new claim and preserve the date of filing for Appeals Council review as the filing date of the new claim. If original and pending claims are filed under Title XVI, a claimant has 60 days within which to file the new claim and preserve his or her rights. In either case, the Appeals Council may permit the filing of a new claim during the pendency of the original claim if the additional evidence shows a critical or disabling condition and the claimant informs the Appeals Council that he or she wishes to file a new claim.

If the new claim does not involve the same title or type of benefit, it will not be impacted by this ruling. If the subsequent claim under a different title or benefit type presents the same issue as the original claim, the SSA may choose to consolidate it with the pending claim if that claim is pending through the hearing level. If the original claim is pending at the Appeals Council, subsequent claims of a different title or benefit type will be processed in accordance with current procedures.

The full text of the new ruling, SSR 11-1p, was published in the July 28, 2011, issue of the Federal Register (76 Fed. Reg. 45309).