If your Social Security case is denied after a hearing with an Administrative Law Judge (ALJ), you have a couple of options:
Option 1: Appeal the ALJ’s decision to the Social Security Appeals Council
To do this, you need to file form HA-520-U5 “Request for Review of Hearing Decision/Order.”
The advantage of appealing is it preserves your entitlement to your back benefits. An appeal is a continuation of the same case, so if you are ultimately approved, Social Security could owe you quite a few months of back benefits.
On the flip side, if you start a new claim, you normally lose your entitlement to the back benefits from the just-denied claim.
So, generally, if you can continue to appeal the current claim, you may get more back benefits that on a new claim.
Note: there are exceptions to this, including the possibility of reopening a prior claim during a new claim. If the Judge decides to reopen the prior claim, you might not lose any back benefit.
However, there is no guarantee that you will be able to reopen a prior case. You have to meet additional requirements to request a reopening, and, more importantly, the choice of whether to reopen a prior claim is discretionary. If the Judge decides not to reopen the prior claim – that’s it! In my experience in Colorado, judges generally do not like to disturb a prior judge’s decision.
So, you do not want to count too much on reopening a prior claim. I warn my clients not to expect that a prior claim will be reopened if they have to start a new application.
Option 2: Start a new claim from scratch by filing a new application
You may be wondering:
Why would anyone want to start a new claim when an appeal may get me more benefits?
The answer is that if you “win” at the Appeals Council, chances are that they will not approve your case outright. Instead, the Appeals Council typically will only vacate (throw out) the prior decision and send the case back for another hearing with specific instructions about what needs to be done differently at the second hearing.
So, even if you win, you just get a “do-over.”
Here is the real kicker: the hearing will most likely be with the same Judge. I have seen quite a few cases where the Judge simply did not believe my claimant, or their doctors. Having another hearing with the same just is not much of a victory.
Sometimes, it is just better to start fresh with a new claim. If the case has to go to hearing again, it will probably get a different Judge. Of course, there is no guarantee you wont get the same judge, however by filing a new claim, you have a significantly better chance of getting a new judge.
Which is faster? A new claim or an Appeals Council appeal?
It is too close to call. Both can take more than two years to get back in front of a judge. The main exception is if there has been a significant change in the case which might cause Social Security to approve a new claim at the initial review level. Since the initial review takes only 4-6 months, under these circumstances, a new claim might be faster.
In some case, you cannot reapply
There are several situations where you cannot reapply for Social Security:
- You are beyond your “Date Last Insured (DLI).” See my article about this here. DLI only applies in Disability Insurance cases, so if you are applying for SSI, this will not prevent you from applying.
- If you are applying for SSI, your spouse’s income or other household income may make financially ineligible for SSI. Strictly speaking this does not keep you from applying, but you may quickly get a denial for financial ineligibility.
Deadlines for Appealing a Hearing Denial
Normally, you have 5 days to receive the denial and 60 days to submit the appeal. Check your paperwork for the specific dates. Also, keep in mind that it is not 60 days to mail the appeal. The appeal has to be received at the Appeal’s Council (the address is in the denial) by the 60th day.