Can You Have a New Disability Case and an Appeals Council Case Simultaneously?

Social Security no longer allows you to file a new disability application when you have requested an Appeals Council review.

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While it used to be true that you could file a new disability application while waiting for the Appeals Council to evaluate your appeal of a denied Social Security disability claim, Social Security changed that rule in 2011. (Some background: Disability claimants who get denied benefits by an administrative law judge (ALJ) at a disability hearing have the option of appealing the ALJ's denial. You do this by sending a request for review of the judge's decision to the Appeals Council. For more information, see our overview on the Appeals Council appeals.)

Rule on New Applications During Appeals Council Review

The Social Security Administration (SSA) changed its rule in 2011 so that you now have to choose between filing a new disability application and appealing your claim to the Appeals Council. If you do file a new application after requesting an Appeals Council review, Social Security will forward the application to the Appeals Council to be combined with your existing case.

Submitting New Evidence to the Appeals Council

You can, of course, always submit any new medical evidence you have (for example, of a worsening condition or a new disabling condition) to the Appeals Council. If the new evidence relates to the period before the ALJ made his or her decision, the Appeals Council will consider it. If the new evidence relates to the period starting after the ALJ decision, the Appeals Council will not consider the additional evidence and will return it to you with a notice. You then must wait for the Appeals Council to finish its review of your case before you can start a new disability application.

Exception for Filing New Applications

There is one exception to this rule. If the new evidence shows that you have a new critical or disabling condition, you can tell the Appeals Council that you want to file a new application, and the Appeals Council might allow you to file a new application before it completes its review of your existing appeal (but the council approves only about 25% of these requests). In any case, if you file a new application within six months of receiving the notice from the Appeals Council, the date of your request for review to the Appeals Council will be used as your filing date for the new application. Your filing date can affect whether you are eligible for SSDI and how much backpay you will get, so it can be important to have this early "protective filing date."

Should You Appeal to the Appeals Council?

This change in procedural rules puts disability applicants at a disadvantage. A pending action at the Appeals Council level may take many months to a year to complete. In the past, in many instances, a disability applicant could repeat the entire application process and be scheduled for an ALJ hearing before the Appeals Council responded to the applicant.

Does it make sense to file an appeal with the Appeals Council rather than filing a new application? This is a question that you should decide with the help of your lawyer. There are only a few reasons that the Appeals Council can overturn an ALJ's decision or send the case back to an ALJ hearing (called a remand), such as:

  • an error in law
  • failure to consider all the medical evidence, or
  • having new evidence.

A disability lawyer will have a better sense of whether you have a chance at winning an approval from the Appeals Council and whether it makes sense to appeal or start over.

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