There are several considerations. First and foremost is whether your claim evidence is strong enough under Social Security’s rules for a hearing judge to find you disabled. A simple enough question to be sure, but with a potentially very complex answer. While it may be that for mental or physical reasons a claimant cannot in reality work full-time, many of those claimants simply do not have enough claim evidence or the right type of evidence to convince the hearing judge that they are disabled under Social Security’s rules.
A Hearing Judge uses what is called the five step sequential evaluation for determining whether a claimant is disabled, an analysis which is reflected in the Social Security disability definition: “Inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months. This means an individual must have a severe impairment which renders the individual unable to do past relevant work or any other substantial gainful activity which exists in the national economy.” See 20 C.F.R. §404.1505. There are more pitfalls than might seem apparent in each part of this definition; any of which can derail a claim, and it is important to have an attorney assist you with your appeal; if you were not already represented by an attorney at your hearing, you should strongly consider retaining one for your appeal or new claim, and more fundamentally, to advise you on how to choose between appealing and filing a new claim, or withdrawing your claim all together.
The next consideration is Social Security appeal procedure: The claimant can either start a new claim or appeal the hearing judge’s unfavorable decision, but cannot do both. Appeal from an unfavorable hearing decision is made to an adjudicative body called The Appeals Council. The Appeals Council is currently taking about Eighteen months to render a decision, though individual results widely vary.
Many claimants automatically are motivated to appeal rather than file a new claim because with a new claim much of the accrued back-benefit that the claimant was hoping to collect after an appeal win would be wiped out. And this is because the SSDI rules only provides payment to a maximum of one year back in time from the claim filing date. However, another consideration is that if you choose appeal over starting a new claim, if your earlier claim evidence is weaker than your more recent evidence, it may be that even if you appeal and wait the two or so years to get a re-hearing, the result of the new hearing is that the judge amends (moves up) your claimed onset date and only pays your claim from the later time that he or she deemed that your claim evidence became more compelling, which may very well be approximately the same date that you would be awarded upon the new filing. Thus had you elected a new filing, you might have gotten the same result in Six months to a year rather than the two years or so for resolution of the appeal and re-hearing.
Another consideration is that in the experience of many social security lawyers, the Appeal’s Council has within the last year or two done an about-face in their decision-making, declining to review many cases that the Council previously would have decided favorably to the claimant and/or sent back to the hearing judge to fix mistakes. This may be because of an increased backlog of cases at the Appeals Council that resulted from a significant increase in cases moving through the hearing offices. If the Appeals Council does decline review of your case, you are looking at about another year for resolution of an appeal of the Appeal’s Council decision by the Federal District Court of the State that you live in. And in turn, the Federal District Court, if it does decide in your favor, is more likely to remand the case to the social security hearing judge than outright award benefits to you; thus you are typically facing at least another six months for a rehearing by the hearing judge upon remand by the Federal District Court judge.
But say the Appeal’s Council does decide to review the unfavorable hearing decision and renders a ‘favorable’ decision so that you do not have to go on to Federal Court, it is more likely the Appeals Council will send the case back to the hearing judge for further review rather than outright declaring that the hearing judge was wrong. This means that in addition to the Eighteen months or so for the Appeals Council decision, the claimant is looking at an additional six months or so to reschedule another hearing. Most rehearings are in front of the same judge who decided unfavorably the first time and the claimant should be aware that some hearing judges have an unusually low approval rate, denying and re-denying cases that ostensibly meet the disability rules and/or that other judges would otherwise approve.
So in light of all this, why would anyone bother appealing an unfavorable decision? The answer is that in certain cases it is the lesser of two evils; starting a new case instead of appealing has its own potential pitfalls: Before letting your deadline for appeal of an unfavorable hearing-decision lapse without filing your appeal, you should first make sure that you are still actually permitted to file a new claim, in other words that you are still ‘insured’ for purpose of social security disability. To be insured for SSDI purposes, most claimants must have 20 quarters of coverage out of the last 40 quarters before they can become eligible for disability …i.e., at least some work resulting in payment of some FICA taxes during 5 of the last 10 years. See 20. C.F.R. §404.130. The effect of this rule is that with a steady work record, the insured status will lapse Five (5) years after the last date worked and the claimant must prove disability before this date. 20. C.F.R. §404.130. During the time waiting for the hearing on the new case plus the hearing decision, it is not uncommon for insured status to lapse. It is even more common for insured status to lapse while awaiting the additional 18 to 24 months it is likely to take for a decision by the Appeal’s Council on your appeal.
Another scenario is that because claim evidence that exists as part of your original claim is precluded from consideration if the unfavorable hearing decision is not appealed and won, yet it may be in your case that at least some of that evidence may be stronger than your future evidence will be, such as in the situations where a claimant has recently run out of health insurance and can no longer get much medical treatment. In those cases, some attorneys will file an appeal in the off-chance they can get a favorable result by the Appeals Council prior to the time that insurance coverage for the claimant lapses; but if no result is forthcoming from the Appeals Council and the claimant’s ‘date last insured’ is approaching, the attorney might then present their client with a choice about withdrawing the appeal to Appeals Council in favor of starting a new claim while the claimant is still insured.
Another reason to consider not scrapping your current case that the hearing judge denied you on in favor of starting a new case is that if during the pendency of your Social Security case, you have a Short Term Disability or a Long Term Disability (LTD) claim ongoing with a private carrier or claim administrator or an ERISA Long Term Disability claim, and it is almost always a provision of the LTD Plan or Policy that you affirmatively apply for Social Security disability. The reason for this is that your LTD carrier contemplates receiving a payback of as much as they can from the proceeds of any awarded social security for those amounts that the carrier has paid you over the months or years of the pendency of your social security case disability claim. Most of these LTD carriers and Plan providers prolifically deny these claims and/or cut claimants off from further benefits once they have received their money back in recompense from an awarded social security disability back-benefit, and if the carrier learns that your Social Security case is no longer in appeal, and that you have started a new claim, those carriers are faced with a significant loss of back-benefit recompense, and in order to cut their losses are thus more motivated to find a reason to deny you further benefits going forward.
The point here is that after a denial by the hearing judge, there is often a delicate decision that must be thought through and analyzed, and it is highly advisable to retain legal counsel for that purpose. The lawyers at the Law Office of Paul J. Dombeck, PLLC are experienced in these matters and are happy to talk with you about this decision. You can reach our office at 602-648-2035 or www.disabilityarizona.com.