Unfavorable decisions by Administrative Law Judges (ALJ's) are on the rise. As I have indicated in previews posts, last year, SSDI denials went up 15% at the National level. I suspect that this percentage has continued to increase throughout the first half of 2015. For this reason, a question that many claimants are currently facing is whether to appeal an unfavorable decision by an ALJ or instead, file a new application at the initial level. Here are some of the issues that claimants must consider in making this difficult decision.
- The Date of Last Insured Matters: In deciding whether you want to appeal or file a new application, you must first find out your "date of last insured". If your date of last insured is in the past, it will be very hard for you to file a successful new application. In order to succeed, you must show that your disability began before your date of last insured. On the other hand, if your DLI is in the future, you still have a chance to submit new information with proof of your ongoing disability, For these reasons, I usually disfavor filing a new application in cases in which the DLI is in the past.
- Do you Want to go Before the Same Judge, Again?: One of the main problems of appealing a judges decision, is that if your appeal is successful it is very likely that your case will be remanded back for a new hearing with the the same judge who denied you. Only in very rare occasions, will the Appeals Council take the case away from the judge who denied you or issue a favorable decision without the need of a new hearing. This is one of the biggest drawbacks of appealing your case.
- Are you Willing to Compromise Some of Your Past Due Benefits?: One of the drawbacks of filing a new application is that you are potentially giving up your claim for past due benefits from your prior application, Under some circumstances, giving up past due benefits might be a good trade off. If time is of the essence and you think that your new application has a good chance of being granted early in the process, you might want to consider giving up your past due benefits.
- Time Considerations: Almost everyone that I talk to is concerned about the length of time of that an appeal will take versus an initial application. Both processes can be extremely lengthy. In most cases, it takes the Appeals Council more than one year to decide a case. Assuming that the Appeals Council issues a remand, it takes the ALJ about another 6 months to schedule a hearing and issue a decision. In terms of time, there really isn't a big difference between an appeal vs, and new application, unless your medical condition her worsened dramatically since the date of your hearing, If your condition has worsened dramatically, then you might have a good chance of having your initial application granted relatively early.
Determining whether to file an initial application or appeal is something that must be decided on a case by case basis. I hope that this brief summary of the issues to be considered are of help in making your individual decision.