Written by attorney Gerald Gregory Lutkenhaus

Appeal the Social Security Judge or File a New Claim?

You lost your Social Security Disability Claim before a judge. He may have been a bad judge. You think an appeal would overturn the judge. Should you file an appeal? An appeal from a judge decision goes to the Appeals Council. It takes 12-24 months for the Appeals Council to make a ruling on such an appeal.

The most likely action by the Appeals Council is to remand or send the case back to the same judge who denied the claim. This will allow the judge to fix any errors he/she made in denying the claim. This new hearing takes a year. If you lose, then you can appeal back to the Appeals Council. Then, if the Appeals Council feels the judge has committed errors in the second hearing the Appeals Council will remand for a third hearing in front of a new judge but you are lucky to get this done within three years.

It used to be you could file a "new claim" while the Appeals Council appeal was pending. In a new ruling Social Security has now disallowed this approach. The new ruling is SSR 11-1p. It says if you are appealing an adverse judge’s decision you are no longer allowed to file a "new claim" while that appeal is pending.

Thus, if you believe you have a good case and just got a bad judge, you have to make a choice. Do you try the two to three year Appeals Council appeal process or do you file a "new claim" and obtain a new hearing before a new judge within 18 months. (Of course, your "new claim" could end up before the same bad judge).

If you file the "new claim", you cannot ask for benefits prior to the date of the last adverse decision by a judge. Thus, you will lose back benefits even if you win on your "new claim" for benefits.

In some cases, you do have to appeal to the Appeals Council. This is when you have a last insured date (LID) problem. If you don’t appeal, the judge’s decision could be the "final decision" in your case. You cannot file a "new claim" because your last insured date (LID) has expired. For most employees who have been fully employed the last insured date (LID) if five years after leaving employment.

In conclusion, due to the long delays in the Appeals Council process, it may now be better to file a "new claim" rather than appeal an adverse judge’s decision.

If you want a free consultation on your Virginia Workers' Compensation Case: call now at 804-358-4766 or 1-800-256-8862 or email me at [email protected]

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