SSR 11-1p: can’t appeal and reapply for Social Security disability

A number of attorneys suggest that if you are denied at your Social Security disability hearing, you should do two things:

  1. Appeal the Administrative Law Judge’s (ALJ’s) decision to the Social Security Appeals Council, and
  2. File a new claim for Social Security disability benefits.

The idea was that the new claim would be evaluated by Social Security until it got to the hearing level, the the old claim was pending on appeal. There were pros and cons to this approach.

  • Since cases often take in excess of 18 months at the Appeals Council, some advised to start the ball rolling on a new claim (which might get approved sooner).
  • The problem was that a denial on the new claim might reinforced the correctness of the prior hearing denial which is being appealed.
  • Also, if the new claim got to the hearing level, it was put on hold until the Appeals Council decided on the appeal of the prior hearing decision.
  • If the Appeals Council denied the appeal, it might have a chilling effect on the new claim’s chances waiting to be heard at the hearing office.

Well, all this is a thing of the past.

With SSR 11-01p, Social Security now effectively makes you pick whether to appeal OR start a new claim.

Under the new procedures we are adopting in this Ruling, generally you will no longer be allowed to have two claims for the same type of benefits pending at the same time. If you want to file a new disability claim under the same title and of the same type as a disability claim pending at any level of administrative review, you will have to choose between pursuing your administrative review rights on the pending disability claim or declining to pursue further administrative review and filing a new application.

This applies to pursuing two cases of the same type. That is, both appealing and applying for SSDI benefits, SSI benefits, or a concurrent claim for both SSDI/SSI benefits.

You can still apply for benefits of a different type that those considered on the appeal.

This Ruling does not change the procedure we currently follow when you file a subsequent claim under a different title or for a different benefit type than a pending claim. When a subsequent claim under a different title or for a different benefit type shares a common issue with the pending claim, we will usually consolidate it with the pending claim through the hearing level. When you file a subsequent claim that is under a different title or is for a different benefit type and your prior claim is pending review at the Appeals Council, we will process the subsequent claim in accordance with our current procedures.

In practice, this exception to the “choose only one appeal option” will mostly come up in cases where an individual was applying for Social Security Disability Insurance (SSDI) benefits and the hearing denial deals with disability through the date last insured (DLI).

An appeal is usually the only option (unless there is a previously un-adjudicated period of disability), since the date last insured often precludes a new SSDI claim. However, an individual in this circumstance may still be able to file for Supplemental Security Income (SSI) benefits (which does not have a date last insured issue).

So, if you have a prior hearing denial for SSDI which deals with a date last insured, and can only start a new claim for SSI,  you are still able to apply and appeal. This is because the prior claim (SSDI) is a different type that then new claim (SSI).

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  • Social Security Disability

    Hi Tomasz,

    I think this is the right move by the SSA. With backlogs increasing as it is, this only slows down the process even more.

    With chances of being approved being higher at the hearing stage, I would assume that most claimants would want to get to the hearing stage anyways.

  • joyce

    My comment or maybe it’s a question. I have a disability attorney who took my case and says he will win it for me even if i’m working. Why would he take the case if you’re not allowed to work while waiting?

    • TomaszStasiuk

      It’s not that you can’t work while waiting, but it can make things more difficult: 

      However, there are also closed period cases… 

      To get to the crux of your question: if there is a significant period of back benefits, it may be worthwhile for an attorney to take the case even if there are no ongoing benefits. This is because representatives just get paid out of the back benefits. 

      Of course, I have not idea what is going on in *your* case. I am only speculating generally. 

  • Becca_gutierrez

    I use to receive SS for my spinal bifida when I was younger, they stopped the payments when I turned 13 because my father made too much money. Now that I am 21, I re-applied and was denied because I do not fall under their definition as disabled.. I asked for them to mail the petition forms and have not received them. It’s been 5 months… what do I do?

    • TomaszStasiuk

      If an appeal is not filed within the time limit (often 60 days), unless there is good cause for a late filing, an individual often has to start a new claim. 

      For specific information about your ability to appeal now, I encourage you to contact Social Security. They will let you know your options. 

      Even if you have to start a new claim, don’t let it get you down. Hang in there and get that application submitted!

  • Lisa

    My lawyer sent me a letter stating that there is a summary judgement scheduled, it was today in fect, what is a summary judgement and how long before i find out what the judgement was? Please help its been almost 5 yrs now.

    • TomaszStasiuk

      There is no SJ in SSA. It sounds like your lawyer does other litigation work primarily! :-) You may want to follow up with the lawyer about what exactly he means by a summary judgment. Does he mean an On The Record (OTR) decision?

      • Lisa

        I will do that thank you.

      • TomaszStasiuk

        Well… let me correct that. There is no SJ in the administrative part of a Social Security claim. There may be one if a case goes into federal court.

  • Lisa

    The summary judgement is in federal court, can you tell me about how long before i find out what the decision is? Like i said before its been near 5yrs and i am about to be homeless i have three kids. Do i even have a chance of winning at all? I have rsd reflex syphathic dystrophy its getting worse leaving me in constant pain and swelling leaving me unable to stand or sit for very long i swell up in my feet legs and hands. i have really bad depression and i only have a first grade education level. I have always worked full time since i was 14yrs of page so was never afraid of working. Please if you can explain it so i can understand i would be grateful. Thank you.

    • TomaszStasiuk

      I don’t handle federal court cases so I cannot address this.

      • Lisa

        Even if is a ssi case?

        • TomaszStasiuk

          SSI is the type of benefits you are applying for. The issue is your case is pending at the federal court level and you are asking for an explanation of what is happening now. Your lawyer should be willing to answer all of your questions about this. S/he is working for you and being paid by you (even if it is through Social Security). You are the client and the lawyer should be willing to explain what is going on. Good luck, Lisa!

          • Lisa

            Thank you