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Social Security Disability - Reapplying after ALJ denial

Columbus, OH |

I was denied by the ALJ for SSDI. I am still insured. I am filing a new claim. I know my new AOD must be at least 1 day after the ALJ denied my first claim b/c I am starting anew. My question is what happens to all the paper work and medical documentation that was submitted the first time around? Is any of this stuff used in the second application? Do I just submit new medical evidence from my new AOD forward, or do I submit past medical evidence that was submitted the first time? Thank you for taking the time to respond.

Attorney Answers 4

Posted

First, I am concerned about your choice to file a new application rather than appeal. You have 60 days after the Judge's decision to request review. If you believe you have been disabled all along and if the necessary evidence was filed, an appeal may be the more appropriate option for you. An appeal protects your current alleged onset date and lets you continue to pursue retroactive benefits.

However, if you have missed the appeal period or believe the earlier claim had weaknesses, a new application is appropriate. Since Social Security is now electronic, the prior file will remain available for review. The older evidence will not carry much weight though, because the new claim must show deterioration from the prior hearing decision. You should focus on updating your record and submitting the strongest new evidence possible.

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Asker

Posted

Thanks for your response Marcia. I don't think any new evidence (after the date of denial) can be submitted to the AC if you appeal the ALJ's decision, correct? Can new evidence be submitted you had before the denial date that was not considered? Thank you.

Marcia W. Margolius

Marcia W. Margolius

Posted

New evidence can be submitted if it relates to your condition at the time of hearing. For example - if the evidence is from that actual time period, but was not submitted at that time, you can submit it on appeal. Additionally, if the evidence came up after the hearing but sheds light on your condition before the hearing, it can be submitted. For example, if the doctors have finally diagnosed what was bothering you then, that is admissable. A brand new, unrelated condition is not.

Asker

Posted

Excellent Marcia...much appreciated.

Posted

I agree that you really need to consider whether you should be appealing the denial from the ALJ. Keep in mind also that you will most likely get the same ALJ if your new claim proceeds to another hearing. That makes it doubly tough to win these kinds of claims. What is most impressive to an ALJ in this situation is if there is something new about your condition that wasn't apparent or wasn't known at the time of the first hearing. For example, having new or better testing for a condition can be persuasive (e.g. now had an MRI done on back which reveals problems that weren't showing up on xrays, etc). I would highly recommend consulting with an experienced Social Security disability attorney if at all possible for this new claim.

It is impossible to give specific answers to questions without meeting and fully discussing all of the potential issues that may not be addressed by your question. The answer(s) provided should be considered general information and are not legal advice. Viewing this information is not intended to create, and does not constitute, an attorney-client relationship. The answer provided is intended to educate you and point to issues for you to raise in a consultation with a lawyer. You should not take any action that might affect your claim(s) without first seeking the professional opinion of a licensed attorney.

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Asker

Posted

What is the reason for making it likely that you would get the same ALJ if it goes to level 3 again? I was told I would be more likely to get a different ALJ. Please explain. Thanks for your response.

Vance Tate Davis

Vance Tate Davis

Posted

I assume the policy is based on the idea that the ALJ has invested time in the case and is more familiar with the case and the facts than anyone else, so it would be more efficient to have the same decision maker review the case the second time. HALLEX 1-2-1-5 Section D.11 lays out the policy. Note well that if you have particular concerns about this ALJ's conduct during the hearing or fairness, those would be issues you ought to raise in an appeal of the case to the Appeals Council rather than hoping to get a different ALJ on a new application. The Appeals Council has the authority to direct that a different ALJ review the case if it is remanded (re-tried).

Posted

I suggest strongly that you contact an attorney who handles Social Security Disability cases. I agree with the other answers here that an appeal may be your better chance. The attorney could review everything and potentially supplement your application to include what needs to be there. Attorney Margolius gave you an excellent and thorough answer. I suggest you give her a call and set up a consultation.

Attorney Chris Beck
Beck Law Office, L.L.C.
Beavercreek, Ohio
(937)510-6110 phone
(937)867-4111 fax
attycbeck@gmail.com
www.becklawofficellc.com

The responses of Attorney Chris Beck to any questions posed on Avvo do NOT establish an Attorney-client relationship. Attorney Beck is available for private hire and consultation for a fee. Only after Attorney Beck is retained as counsel, or agrees to discuss this matter with you privately, shall he be legally deemed to be your Attorney. His responses herein are an attempt to assist persons temporarily based upon the very extremely limited amount of information provided by the questioner

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Posted

a new claim is just that - brand new. so the old evidence will have to be re-submitted on the new claim.

while an appeal of the ALJ decision may be the better bet (as suggested by the other comments), it also may not be better. statistically speaking, after an ALJ decision, success on appeal is about 5-10%. if the evidence is overwhelming, I might still appeal. but if it was close and you lost, the a new application is the way to go in my opinion.

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