Social Security

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Winning SSDI While You Wait for an Appeal

Dateline: 2/16/00

The U.S. Social Security Administration (SSA) recently implemented a new policy

which will have an important impact on people who have claims undergoing review

by the Appeals Council (AC). On December 30, 1999, SSA announced that claims

will be " processed and adjudicated without delay regardless of whether there is

a prior claim pending at the AC. "

What does this mean for you if you've applied or plan to apply for Social

Security Disability benefits? You've always had the right to appeal the denial

of a claim by an administrative law judge (ALJ). Then the Appeals Council would

either decide your case itself or return it to the ALJ for further review. Most

of the time, the Appeals Council simply upholds the ALJ's decision. The problem

is this: the Appeals Council has a backlog of at least 12-15 months. In the

past, while you waited for all of this to happen, you still were not able to

receive Social Security benefits or have access to Medicare.

The other alternative you had was to forgo an appeal and instead file a new

application for disability benefits, with an onset date no earlier than the day

after the ALJ's decision. If you thought you could do a better job of proving

your case with a new doctor, attorney, or any new medical evidence, then this

might have been the quickest route to benefits. However, then you would be

giving up your right to benefits for the period prior to the new application.

In the past, if you had a claim pending at the Appeals Council, and you filed a

subsequent claim (for the same disability), no action would be taken on the new

claim. Since Social Security's " Emergency Message " #99147, the rules have

changed. Now a subsequent claim will be processed and adjudicated even if there

is a prior claim pending at the Appeals Council. So you may be able to win

benefits under a new claim even before your appeal on the old one is heard. The

new procedure includes claims that were filed before the new policy went into

effect.

Once you've filed a subsequent claim, if your new claim is denied at the initial

level (as 75% of applications are), you may appeal the decision to the

reconsideration level, and the claim will be processed normally. If you are

denied again, you may appeal the determination to the hearing level; but at that

stage, the request for a hearing on the new claim will be deferred until the AC

completes its action on the prior claim.

If your subsequent application for disability benefits is approved, a favorable

outcome may influence the AC's decision on the prior claim. Each case requires

individual consideration of the facts presented. If the AC decides that the

subsequent claim presents " new and material evidence that relates to the period

on or before the date of the ALJ decision, " this evidence may be used in the

AC's review of the prior claim.

What You Can Do

If you have a claim pending at the Appeals Council, and you are interested in

filing a new application while you wait for the outcome, consider the following

recommendations:

1. Find out whether you have worked long enough and recently enough to be

eligible to file a new claim. You should be eligible to file a claim if it has

been five years or less since you last worked full time. Call SSA's toll-free

number (800/772-1213) and ask for your " Date Last Insured. " You must prove that

you became disabled before that time.

2. Check the status of your pending claim to find out if there is likely to be

a decision soon. If the AC makes a favorable decision on the prior claim, the

new claim will not be processed anyway, so there may be little reason to go

through the effort of filing a new application if you think your prior claim

might be approved soon.

3. If you decide to file a new claim, try to retain a good attorney at the

beginning of the process. Most attorneys work on a contingency basis (meaning

you don't pay until you receive benefits), and some will take your case when you

initially file your claim.

4. Make sure you have the support of your treating physician. You are unlikely

to win benefits if your doctor does not believe you are unable to work.

5. Talk to your doctor about any additional medical tests you might have that

would help document your disability. In order for SSA to approve your claim,

you need to show evidence of a " medically determinable impairment. "

6. Take a look at your medical records before filing your claim; you have a

right to receive copies of your file. Make sure that there is appropriate

documentation for your disability and that all of your records are available.