Do I Appeal or Refile my Social Security Disability Benefits Hearing Denial?

Social Security attorney Andrew Kinney explains the Appeals Council.

Since August of 2011, the Social Security Administration has taken away a right to appeal unfavorable Social Security disability and SSI hearing decisions while refiling a new claim.  Now, you have to wait until after an Appeals Council appeal is over to refile a new claim – sometimes up to a year or more.  The exceptions are fairly useless in practice.

Social Security Ruling 11-1p, which definitely was a regulatory change, interferes with your rights to assert worsening disability during the Appeals Council process.  The Appeals Council technically does not even decide to review anything unless it chooses to, so a pending appeal at this level is not an appeal in the regulatory sense.  If you later refile a new claim, the last decision date is the date of the hearing denial.  So what does the Appeals Council actually do when it denies you review?  Nothing but send you a form letter that it will not review your hearing decision. Not long after this renegade ruling was secreted into the mainstream, one of my clients was approved for only a closed period of Social Security benefits (back-pay but no ongoing benefits).  At this time, he could have appealed the closed period or accepted it and refiled a new claim.  We decided the latter course was best for him.  I learned after his recent hearing approval for ongoing benefits (our legal plan for him) that a Social Security employee had called him at home during the refiling time.  Despite knowing that he was represented by an attorney, the Social Security employee asked my client if his attorneys knew what they were doing.  He should (in his view) simply appeal if he was unhappy.  Wrong. Not only was this client call a breach of protocol and ethics with represented clients, but the Social Security employee was dead wrong.  Our suspicion after SSR 11-1p was forced upon us was that Social Security thought there would be an increase in Appeals Council appeals and an associated decrease in refilings.  Not at this law firm.  At its core, refiling is generally the better course of action for desperately ill claimants because the Appeals Council can be an inadequate, ineffective, and an utterly inconsistent choice. Until a class action undoes the damage done by 11-1p, what is the best course of action if you are denied Social Security disability insurance benefits?  Here are some factors we consider in refiling vs. appealing an unfavorable hearing decision.  In weighing these factors for your situation, get the advice of an experienced Social  Security disability lawyer:
  • If you have a disability insurance claim only (no SSI) and your date last insured is expired, refiling may not be an option.  Appeal.
  • If your ALJ has a low approval rate (1/3 or less), expect the Appeals Council to send your first remand back to this same judge.  Also expect that ALJ to choose the same medical expert who denied you before.  With about a 1/4 chance of an Appeals Council remand to an ALJ approving 1/3 or fewer claims, do the math.  Refiling generally makes more sense.
  • If you were not treating regularly or getting a firm medical diagnosis until recently before the hearing, refiling may make more sense because there is more evidence to affirm the hearing denial.  Retool in the refile.  Technically, not much back-pay is lost if you would have amended onset at the hearing anyway.
  • The Appeals Council can take over a year.  If you are about, or already have, lost your place to live, refiling at least gives you a chance for an approval at the application stage within possibly 6 months.  Money now can be more valuable than possible money later.
  • If you are approved for a closed period of benefits, appealing this can be a gamble.  The Appeals Council can remand and order a de novo appeal of the original claim.  What this means is that the Appeals Council can put your money in hand at risk by allowing the same judge to decide whether you should get anything at all – and require you to pay back what you got.
  The Appeals Council today is just unpredictable enough to warrant being seriously ignored.  A better Appeals Council would direct rehearings limited to one or two issues only.  It would appoint doctors on staff to reverse medical evaluations at hearings.  It would also tell you if you have no “colorable” appeal within a deadline of, say, 4 months, or it would be an automatic remand to a new judge.  A deadline for the government?  An amazing concept.