Part II: When to Refile
In a prior post, we discussed when it is appropriate to appeal an Unfavorable decision from an Administrative Law Judge. As will be discussed below, there are times when it is best to file a new application instead of an appeal. Remember, a claimant can no longer file a new application for Social Security Disability and/or Supplemental Security Income and request review with the Appeals Council simultaneously.
There are many situations where a re-file is a better option than sending the claim to the Appeals Council. As discussed previously, the Appeals Council is very conservative, and for approximately 80% of the people who appeal, it is a 12-15 month wait before the Appeals Council declines to review their case. Since claimants can no longer file a Request for Review and new Initial Application for Social Security Disability or Supplemental Security Income benefits, it is in many claimants’ best interests to skip the appeal and file and new application.
When filing a new application, Social Security will consider anew whether the claimant is insured under Disability Insurance Benefits and/or financially eligible for Supplemental Security Income. All eligibility for benefits prior to the date of the Unfavorable decision will be foreclosed (except in very rare circumstances that allow for reopening the prior decision).
The best way to think of whether to skip the appeal to the Appeals Council and simply file a new application is to think “what has or will change since the decision by the Administrative Law Judge”. If the claimant intends to substantially increase treatment, often times, a re-file may be the better option. More evidence will better show the existence and severity of their conditions. If the crux of the claimant’s case is based on a condition for which he/she has not been treating, a new application may be best if the claimant decides to start or increase treatment, as there will be better documentation of the impairment and the resulting limitations.
Another reason to re-file in lieu of an appeal is if since the Administrative Law Judge’s decision, a claimant’s conditions have substantially increased in severity or he/she has a new condition that wasn’t present during the time period the Administrative Law Judge considered. In this case, a new application would be ideal as, assuming the claimant is treating, there would be documentation of a change in the claimant’s limitations from the prior claim, which is the first question on many adjudicators’ minds when they are evaluating a re-filed claim.
In the end, the most important thing to note is that a decision as to whether to request review of an Unfavorable decision from an Administrative Law Judge and whether to refile is up to the claimant, assuming they meet the technical requirements for a new application. With a little bit of thought as to the contents of the Judge’s decision, and the claimant’s current and past limitations and documentation, a claimant can choose an avenue that gives the best chance for success.
