Appealing vs. Filing a New Claim

August 15, 2022 in
LaBovick Law Group office

Although one’s chances of obtaining Social Security Disability benefits increase when attending a hearing with an administrative law judge, unfortunately, a large number of claimants are still denied at this phase. If you are in this situation, you may be wondering what to do next. Generally, your options are to appeal the judge’s decision to the Appeals Council or file a new claim. There are pros and cons to each course of action.

Appealing a judge’s denial

If you attended a hearing with an administrative law judge and your case was denied, you have the option to file an appeal with the Appeals Council. The appeal must be submitted within 60 days of the date of the judge’s decision letter. The Appeals Council is headquartered in Falls Church, Virginia, and oversees the decisions of Social Security administrative law judges all over the United States.

The Appeals Council States that they will review a case if there appears to be an abuse of discretion by the ALJ; there is an error of law; the action, findings, or conclusions of the ALJ are not supported by substantial evidence; there is a broad policy or procedural issue that may affect the general public interest; or new and material evidence is submitted. If the Appeals Council denies review of the case, the next step is to file a federal court claim. If the Appeals Council finds that an error was made in the judge’s decision, it can issue a favorable decision – however, this is very rare and occurs in approximately 1% of cases. More often, the Appeals Council will remand the case – meaning, they will send the case back to the judge for a new hearing with directives on how the case should have been evaluated. Typically, the case is reassigned back to the same judge who did the initial hearing. Remands are not common. In 2022, only 15 percent of cases were remanded for a new hearing. Therefore, the Appeals Council denies review of the overwhelming majority of cases.

Filing a new claim

Rather than appealing the judge’s denial, claimants have the option to file a brand new claim. Note that this option is only available if your “date last insured” has not expired. This is the date of the last quarter when you meet insured status for disability. These quarters of coverage are established by earnings from work activity on which one has paid taxes.

If you choose to file a new application for benefits, the date of disability, known as the Alleged Onset Date, can be no earlier than the day after the judge’s hearing denial. You will also need to obtain all new medical evidence. This is because Social Security will not review medical records that were used as the basis of the decision for your prior hearing when filing a new claim. Thus, when filing a new claim, it is extremely important to continue seeing doctors and adhering to their recommended treatment plans.

Should I appeal or refile?

Appealing a hearing denial may only be successful if the appeals council finds that the administrative law judge made a legal error when deciding your case that would have resulted in a different outcome. For example, if there is a medical statement from your doctors regarding your disability that the judge did not mention at all in the decision letter, then the appeals council may send your case back for a new hearing with directions to the judge to review the medical statement. However, if the judge reviewed the medical statement and stated that he or she did not find it to be persuasive, the Appeals Council will not reevaluate the judge’s opinion regarding the medical statement.

Unfortunately, judge’s approval ratings vary widely, and some judges are more difficult than others. Filing a new application will likely result in your next hearing being held by a different judge. If you continue treating with your providers and your level of functioning due to your conditions remains poor or worsens, your chance of approval may improve if a different judge is hearing your case. The downside of filing a new application for benefits is that your original date of disability is no longer preserved. Since the earliest date of disability, or alleged onset date, you will be able to choose is the date after your hearing denial, you will only be able to receive past due benefits going back to five months after your new onset date. This will also affect the date when you become eligible for Medicare benefits.

If you live in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, or Washington, other special rules apply if you have previously been denied at the hearing phase and are filing a new claim. In these states, Social Security is required to apply a presumption of continuing nondisability unless you are able to prove changed circumstances that would result in a different outcome. For example, a new condition with new limitations and treatment would prove that circumstances have changed.

LaBovick Law Group can help you with your new application for benefits.

If you have been denied at the hearing level and are ready to file a new claim, the attorneys at LaBovick Law Group can develop your case so that your chances of a favorable outcome are higher for your new hearing. Often, claimants represent themselves at their Social Security Disability hearings and are overwhelmed by the process. Hiring an attorney will greatly increase your chance of success at the hearing.

A Social Security Disability attorney is trained on the regulations and issues and will be able to identify strategies which will put you on the path for a successful hearing outcome. If you attended a hearing, were denied, and your date last insured has not expired, don’t give up hope on filing a new claim. Give the Social Security Disability attorneys at LaBovick Law Group a call today at (561) 625-8400 for a free case evaluation.