I’ve been denied by the Judge at hearing and I have been told that an appeal to the Appeals Council could take a year or more. Can I file a new claim and do my appeal?
Unfortunately, the answer to this is probably no. Up until 2011, the SSA would allow for claimants who were denied at hearing to file an appeal to the Appeals Council and simultaneously file a new claim for benefits. However, with SSR 11-1p the Appeals Council effectively closed the door to this practice. In theory, the Ruling allows for filing where there is a “new critical or disabling condition” or where the “subsequent claim does not involve the same title or type of benefit.” Practically speaking, I have never seen the SSA actually allow the use of these exceptions.
The only exception that I have seen allowed is in the event that the Unfavorable Decision at hearing was in a Cessation case (a case where a claimant receiving benefits has been determined to no longer be disabled). In that very narrow instance, the Appeals Council makes clear that the rules under SSR 11-1p do not apply. (See HALLEX I-3-1-75.)
So, if you are denied by the ALJ, you are almost assuredly not going to be allowed to file a new application and file an appeal. Typically, this forces a very difficult choice for a claimant. Both filing a new claim and risking an appeal come with major drawbacks. To understand your options and make an informed decision you need to consult an attorney.
