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NOSSCR seeks impact examples for SSR 11-1P

SSR 11-1p prevents claimants appealing their unfavorable hearing decision to the Appeals Council from filing a new disability claim while their appeal is pending.  This has a significant impact on claimants, especially if their condition worsens or they reach a new age bracket, which may allow an approval on the new claim.  It further hurts SSI claimants, cutting them off from possibly years worth of benefits if their appealed claim is ultimately denied.

Further, SSR 11-1p places attorney and non-attorney representatives in a difficult position.  Now, they must weigh the pros and cons of appealing a bad decision, have their client wait out the Appeals Council, sometimes well over a year, for a low chance of reversal or remand, and then move to Federal Court versus giving up on the old claim and the back benefits protected by it and filing a new claim.  With wait times at many hearing offices still close to two years after the wait for the initial decision and reconsideration, many claimants are in deep financial trouble by the time they receive an unfavorable decision.  In desperation, it is easy to understand that a claimant may give up on a good appeal and waive multiple years of benefits in hopes of quickly fixing their financial problems.

Previously, representatives filed both an appeal and a new claim to fully protect their clients.  Attorneys recognize the balance needed between quickly getting benefits for a clients on a new claim and preserving the client’s possible back pay during long appeal process.  This includes an extremely long waits to obtain copies of hearing recording and the final file.  While SSR 11-1p does allow some new claims to be filed while an appeal is pending, specifically on a new benefit type, my reading of SSR 11-1p leaves it up to the Appeals Council to grant permission if you wish to reapply for benefits you are appealing.  With the Appeals Council response on appeals sometimes reaching over a year, I have a claimant with an appeal pending for six months, it is unknown at this time how long it will take the Appeals Council to grant that permission.

This client, whose condition significantly worsened after the filing of the appeal,  cannot file a new claim.  We are left with either having my client give up the appeal and over three years of possible back benefits and file a new claim, or continue to wait and keep connecting the client to local resources.  While I understand and have witnessed first hand in my practice  the difficulties these dual pending claims can cause, removing them does not fix the greatest problem.  The current SSA disability process is extremely lengthy and the disparity between some judges (and hearing offices) approval and disapproval rates are astounding.   Many of the problems with the SSA process is the time frames involved and the lack of  any type of uniformity in decisions across the country.  Looking at the ALJ disposition statistics for 2012 will show that disparity.

For example


For  this ALJ there have been 54 dispositions with 42 decisions.  Of these 42 decisions, 5 were awards (3 fully favorable, 2 partially favorable) and 37 denials.

If you look at the hearing office as a whole there are eleven ALJs with a total of 322 decisions, 164 of those were an award of benefits for a rate of 50%.    The ALJ’s range in approval rating from 77% to 13%.  Disparity like this is found between many ALJs but usually on the over approval side.  The national approval average currently in 2012 is 68.6%.  As cases assigned randomly, it cannot be that one judge always gets the worst cases, thus resulting in a 13% approval rate, consistently over the years as I believe this ALJ has approval ratings 30% or lower range at any years data I could find, though 36% approval in 2006 see  Oregon Live SSA Database .  How can one explain that most ALJs in the country approve 65% of the cases they see, yet this ALJ only approves 13%.  There is no magic number that once reached no one else can be awarded that year.  Again, with random case loads, it’s not that this judge only gets unrepresented claimants or only certain attorneys, who do poor jobs at the hearing, one then has to look at the standards the ALJ is using in their decision.

While SSA relieved a Judge, with a 100% approval rating of duties, earlier this year, SSA has done very little to deal with extreme outliers on the other side of the spectrum.  This results in claimants appearing in front of certain ALJ’s or in certain hearing offices, being over represented at the Appeals Council and thus taking the brunt of the impact of 11-1p.  Further, I have been unable to find any mechanism to remove an ALJ from hearing a case (if anyone knows of one I would love to see the information).  Having represented claimants nationwide, I have seen this disparity and the extent some decisions go to find a reason to deny a claim.   11-1p places an extreme burden on the claimants unlucky enough to find themselves in front of an ALJ deemed an auto appealer in choosing between filing the appeal and filing the new claim.

SO what is a claimant to do? First, discuss with your attorney the results of your unfavorable decision and the strengths of an appeal both at the Appeals Council level and in Federal Court. Then discuss the likelihood of an approval on a new claim. Depending on the facts of your case, either option may be more beneficial to the other. But a claimant must have this discussion with their representative quickly, as the deadline to file an appeal runs out 60 days after a decision is rendered.