Up until 2011, if a person was denied benefits at the hearing level in a Social Security Disability case, they could file an appeal with the Appeals Council and start a new application for the same type of benefits under the same Title at the same time. If the subsequent claim was denied at the initial and reconsideration levels and the person then requested a hearing, Social Security would wait to schedule a hearing until the Appeals Council completed its action. Then, if the Appeals Council remanded the case, the two claims would be consolidated to be heard at the same hearing.
In 2011 this policy changed. Now, if a person is denied benefits after a hearing, they have their choice of either filing an appeal or starting a new claim. They cannot do both. In other words, you can no longer have your cake and eat it too.
If an appeal is filed and there is new and material evidence that relates to the time period on or before the hearing decision, this evidence may be submitted to the Appeals Council, which will then review the case if it finds that the Judge’s decision is against the weight of all the evidence in the file.
If the new evidence shows a new and disabling impairment that does not relate to the time period on or before the hearing decision, the Appeals Council upon request may allow a person to file a new claim before it completes its action on the appeal.
If the new and material evidence relating to the period on or before the hearing decision shows a critical or disabling condition, the Appeals Council will expedite its review of the case.
If the Appeals Council denies review of a claim for Title II benefits (Disability Insurance Benefits, or DIB), and the person files a new claim within six months of this action, the new application will be treated as having been filed on the date the person requested review with the Appeals Council.
If the Appeals Council denies review of a claim for Title XVI benefits (SSI or Supplemental Security Income), and the person files a new claim within 60 days of this action, the new application will be treated as having been filed on the date the person requested review with the Appeals Council.
These rules apply for claims under the same title and for the same type of benefits. Different rules apply for subsequent claims under a different title or for different types of benefits.
It is often advisable to seek the advice of an experienced attorney in deciding whether to appeal a decision or file a new claim.
This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.