Written by attorney Gerald Gregory Lutkenhaus

New Ruling from Social Security Disability May Prevent Appeals of Judge's Decisions

Social Security Claimants and Attorneys should know we now have a new unfriendly ruling. The Social Security Administration (SSA) has issued SSR 11-1p. This new Ruling no longer allows claimants to file new claims while their appeal of an unfavorable Administrative Law Judge (ALJ) is pending in the Appeals Council (AC). In fact, it turns the AC into a version of Charles Dickens'"Bleak House". Charles Dickens wrote about the problems with legal delays in 18th century England in the "Bleak House" criticizing the legal system.

In the past a claimant was allowed to start a new claim while his/her claim was pending in the AC. Due to the fact, the AC appeal process takes two to three years this allowed claimants a "new shot" at winning their case. Many of my claimants managed to win their new claims while their old claims were pending in the AC.

Also, the AC does not usually grant benefits on an appeal. Rather, if the ALJ has committed an error the AC remands the case to the ALJ for a new hearing. This process can take a year. Then, the ALJ conducts a hearing and again if the result is unfavorable you can appeal back to the AC. The second appeal to the AC means you are now three (3) years into the case without a final result. Here, the SSA has turned the AC into a modern day "Bleak House" in my opinion.

Now, the only way to file a new claim after an unfavorable ALJ decision is to abandon the AC appeal. If one has been filed, SSR 11-1p requires the claimant to withdraw the AC appeal before the claimant will be allowed to file the new claim. Of course, with the new claim, you cannot ask for back benefits any further back than the unfavorable ALJ decision.

The SSA justifies this change by saying there had been an up-tick in new claims being filed while AC appeals were pending and they wanted to avoid contradictory decisions between the AC and the lower levels of the administrative process. This is well and good but if one has a bad ALJ the AC is no longer much of a remedy if the claimant is forced to spend three (3) years in the AC appeal and remand process. Most claimants when faced with this choice would rather take a shot at starting over and filing a new claim with the hope of a hearing in front of a fair judge within a year.

In summary, the AC appeal process has been effectively cut off for most claimants. Most claimants will not want to spend three (3) years appealing an unfavorable ALJ decision. Rather they will be forced to file a new claim and abandon their past benefits.

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]

Jerry Lutkenhaus is a practitioner of Social Security Disability law in the Richmond, Virginia area for over 30 years. He was given an "AV" rating by Martindale Hubbell in 2003. Lexis Nexis listed him in the 2005 Bar Register of Preeminent Attorneys. For more information, see and You can call Jerry Lutkenhaus now at 804-358-4766 for a free consultation about your disability case.

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