Gerald G. Lutkenhaus Social Security Disability Law Blog on Lawyers.com

     You lost the  Social Security Disability Claim before a judge. You think
he may have been a bad judge. You think an appeal would overturn the
judge. Should you file an appeal? An appeal from a judge decision goes
to the Appeals Council. It takes 12-24 months for the Appeals Council to
make a ruling on such an appeal.



    The most likely action by the Appeals Council is to remand or send
the case back to the "same" judge who denied the claim. This will allow
the judge to fix any errors he/she made in denying the claim. This new
hearing takes a year. If you lose, then you can appeal back to the
Appeals Council. Then, if the Appeals Council feels the judge has
committed errors in the second hearing the Appeals Council will remand
for a third hearing in front of a new judge but you are lucky to get
this done within three years.



    It used to be you could file a “new claim” while the Appeals Council
appeal was pending. In a new ruling Social Security has now disallowed
this approach. The new ruling is SSR 11-1p. It says if you are appealing
an adverse judge’s decision you are no longer allowed to file a “new
claim” while that appeal is pending.



    Thus, if you believe you have a good case and just got a bad judge,
you have to make a choice. Do you try the two to three year Appeals
Council appeal process or do you file a “new claim” and obtain a new
hearing before a new judge within 18 months. (Of course, your “new
claim” could end up before the same bad judge).



    If you file the “new claim”, you cannot ask for benefits prior to
the date of the last adverse decision by a judge. Thus, you will lose
back benefits even if you win on your “new claim” for benefits.



    In some cases, you do have to appeal to the Appeals Council. This is
when you have a last insured date (LID)  problem. If you don’t appeal,
the judge’s decision could be the “final decision” in your case. You
cannot file a “new claim” because your last insured date (LID) has
expired. For most employees who have been fully employed the last
insured date (LID) if five years after leaving employment.

    In conclusion, due to the long delays in the Appeals Council
process, it may now be better to file a “new claim” rather than appeal
an adverse judge’s decision. 

This may be considered AN ADVERTISEMENT or Advertising Material under
the Rules of Professional Conduct governing lawyers in Virginia. This
note is designed for general information only. The information presented
in this note should not be construed to be formal legal advice nor the
formation of a lawyer/client relationship.

Jerry Lutkenhaus has
been a practitioner of Social Security Disability law in the Richmond,
VA for over 35 years. He was given an "AV" rating by Martindale-Hubbell
in 2003. Richmond Magazine has listed Mr. Lutkenhaus as one of the best
lawyers in central Virginia. There is more information at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com.