In the past, whenever one of our clients received an unfavorable decision at a hearing by an Administrative Law Judge (ALJ), the Law Office of Kathleen Flynn would appeal the claim to the Appeals Council (AC), as well as file a new application for the client. If the client won on a subsequent SSI (Title XVI) and/or SSDI (Title II, DIB) application, it could, in my opinion, improve the chances of a remand from the Appeals Council or from the next level of review by US District Court, which is where social security disability cases denied by the Appeals Council (AC) are appealed.

In a startling reversal, the Social Security Administration (SSA) issued Social Security Ruling 11-1p, which revises SSA’s prior policy for filing subsequent applications where a prior application is pending at the Appeals Council. 76 Fed. Reg. 45309 (July 28, 2011). http://www.gpo.gov/fdsys/pkg/FR-2011-07-28/pdf/2011-19103.pdf. Now, according to SSR 11-1p, which is effective July 28, 2011, SSA “will no longer process a subsequent disability claim if you already have a claim under the same title and of the same type pending in our administrative review process.” This SSR does not change SSA’s policy when an appeal is pending in US District Court. A claimant may still file a subsequent application while a previous application is being reviewed by the US District Court. According to the Social Security Administration, SSR 11-1p will not apply to a subsequent application that was filed BEFORE July 28, 2011, while a previous application is awaiting review at the Appeals Council.

This is disadvantageous to the claimant (s), who had “2 bites at the apple” earlier in the appeals process by filing both a new application and a Request for Review of the ALJ denial to the AC. One has to wonder what SSA’s motives are for doing this. Was the decision for financial reasons or due to difficulty tracking both cases? In our experience, there were instances when various SSA offices did not seem to know where the previous application and the subsequent application were. Unfortunately, more thought should have been given by SSA to the suffering claimants, who have to, sometimes, wait over a year for a decision from the AC. It seems the agency put their interests first.

For more information, please contact the Law Office of Kathleen Flynn at 404-479-4431 or www.kathleenflynnlaw.com