TN 4 (12-09)

DI 20101.025 Subsequent Claim Filed or Reconsideration on a Subsequent Claim is Requested While Hearing, Appeals Council (AC) Review, or Court Action Pending on Prior Claim

NOTE: If a claimant files a new disability application and has a prior disability claim for the same title and benefit type pending at any level of administrative review, see DI 51501.001 - Procedural Change for Subsequent Disability Applications Effective July 28, 2011. However, if the claimant has an appeal pending for a different title or benefit type, process a new disability application according to the following instructions, as applicable.

A. SSA jurisdiction when a new application is filed or reconsideration is requested and a hearing, AC review, or court action is pending on a prior application

The SSA has full jurisdiction for cases in which a subsequent claim is filed or a reconsideration is requested while an Administrative Law Judge (ALJ) hearing is pending on a prior claim of the same type.

When a subsequent claim is filed, while a prior claim of the same type is pending before the AC, the Disability Determination Services (DDS) may make a limited determination on the subsequent claim.

SSA has limited jurisdiction when a subsequent claim is filed and a prior claim (initial or continuing disability review) is either pending in the court or before ODAR after a court-ordered remand.

To determine the effects of ALJ or AC decisions on a subsequent claim, see the following references:

  • DI 81020.120 - Subsequent Claim Filed While a Prior claim or Appeal is Pending at the Appeals Council (AC). (Certified Electronic Folder instructions).

  • DI 25501.250 - Establishing an Established Onset Date by Reopening Prior Disability Filings and Previously Adjudicated Periods.

  • DI 27510.001 - Period Adjudicated, Policy - Prior Claim at ALJ Level and New Application/Reconsideration Filed.

B. Policy for handling a prior claim at the ALJ level and a new initial/reconsideration claim filed under the same title as the prior claim

If the new claim is filed under the same title as the prior claim, the ALJ generally considers the subsequent claim with the prior claim. The DDS returns the subsequent claim to the field office (FO) to be routed to the ALJ.

If the ALJ affirms a cessation of disability on a prior claim and a medical determination is necessary on a subsequent claim, send the subsequent claim to the DDS for a determination covering the period following the date of cessation.

C. Claim filed under one title while a claim under a different title is pending

If the claimant files a claim under one title while a claim under the other title is pending at the hearing level, the FO, in conjunction with the ALJ, decides whether a common issue exists.

1. Common issue

A common issues exists when two or more claims, in any combination, share an overlapping period of time, all having the same deciding issue, whether medical or substantial gainful activity. If a common issue exists and the ALJ and claimant agree to join the claims, the FO routes the case to the ALJ according to the instructions in DI 12045.005.

If a common issue does exist and the ALJ and claimant agree to join the claims, the FO routes the case to the ALJ.

2. No common issue or there is an objection to joining claims

If a common issue does not exist, or if the claimant or ALJ objects to joining the claims, the FO documents the file as to the reason no common issue exists and sends the case to DDS. The DDS processes the initial or reconsideration-level claim(s). For additional instructions, see Certified Electronic Folder (CEF) Exclusions and Limitations DI 81010.030.

NOTE: The Electronic Disability Collect System (EDCS) does not support multiple claims for the same type of benefits. It does support disability insurance benefits and disabled widow(er) benefits, which are both under the same title.

D. Policy for handling a new application or reconsideration filed when there is a prior claim at the AC level

When a claim is pending at the Appeals Council (AC) level and a claimant files a subsequent claim under the same or different title, process the subsequent claim as a new initial claim under normal claim processing procedures, with normal appeal rights, through the filing of a request for an ALJ hearing.

Claims that are duplicates are not included in this process (e.g., a claim for disability insurance benefits in which the date last insured expired before the ALJ's decision on the prior application for the same benefits),.

NOTE: Process certified electronic folders (CEF) cases in accordance with the instructions in Subsequent Claim Filed While a Prior Claim or Appeal is Pending at the Appeals Council (AC) DI 81020.120.

1. Onset date

The onset date on the subsequent claim cannot be set earlier than the day after the date of the ALJ decision in the prior claim, except for cases in which the prior ALJ decision is a continuing disability review (CDR) cessation.

If the prior ALJ decision, now pending review at the AC, is a CDR cessation, the onset date on the subsequent claim can be no earlier than the day after the date of disability cessation, except in the 6th circuit.

2. Onset date in the Sixth Circuit

In the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee), adjudicators must follow Social Security Ruling (SSR) 13-3p: Title II: Appeal of an Initial Medical Disability Cessation Determination or Decision, which extends the period adjudicated in a closed period of disability and CDR cessation cases through the date the prior determination or decision was issued. In these cases, the earliest onset date that can be set is the day after the date of the prior ALJ decision.

3. Finality of prior ALJ decision

If the AC denies or dismisses the request for review on the ALJ decision, the decision on the prior claim becomes final, unless a civil action is filed. The DDS for States in the Fourth, Sixth, and Ninth Circuits must comply with the relevant adjudicative principles for addressing prior findings required by certain ARs (Albright, Chavez, Drummond, Dennard,) within their circuits when adjudicating the subsequent claim.

See Details:

For additional adjudicative instructions, see these references:

E. Policy for handling a new application or reconsideration filed when a prior claim is in court

After a civil action has been filed on a prior application, we cannot take adjudicative action for the period already considered in the last administrative decision of the Commissioner (i.e., the period pending judicial review).

1. No common issue exists

If no common issue exists (overlapping period of time) between the subsequent claim and the prior claim, we cannot establish the date of entitlement and the date of onset on the new application before the end of the period being considered on the claim that is pending before the court.

If the claim that is pending in court, either under the same or a different title, contains no common issue, the FO routes the subsequent claim to the appropriate DDS with a transmittal sheet annotated as follows: “Do not release any denial notices or make any systems inputs. Onset cannot be established prior to (fill-in date of last administrative decision of the Commissioner on the prior claim).”

For additional information on the definition of a common issue, see Processing Disability Claims at Different Levels of Appeal, Title II and Title XVI - Common Issue Cases DI 12045.010.

2. A common issue exists

If the claim that is pending in court, either under the same or a different title, contains an issue common to the issue of the new claim, the FO annotates “Duplicate Application – Pending Court Case” on the route slip and forwards the new claim to the appropriate DDS.

NOTE: The date of eligibility(DOE) for Title XVI cannot be prior to the filing date, and the DOE for any subsequent Title XVI claim is generally not affected by the disability onset issues of an appeal pending in court. Other factors of eligibility, such as proof of age or proof of residency in concurrent or Title XVI-only claims, could be issues common to the prior claim.

F. Routing subsequent claims to DDS

The FO routes subsequent claims to the DDS, which then process the subsequent claims as new initial claims. However, DDS cannot establish an onset date that is earlier than the day after the date of the prior ALJ decision.

NOTE: For CDR cessations, see DI 20101.025C in this section.

The FO notifies the DDS if the AC remands the prior claim to the hearing office or if the AC issues a favorable decision on the prior claim.

For cases remanded to the hearing office by the AC:

  • For certified electronic folders (CEF) - the DDS stops development and forwards the subsequent claim to the FO for processing.

  • For modular disability folders (MDF) - the DDS stops development and forwards the subsequent claim to the hearing office for association.

If the AC issues a favorable decision, the DDS stops developing the subsequent claim (CEF or MDF) and returns the case to the FO for processing.

REFERENCE:

DI 81020.120 - Subsequent Claim Filed While a Prior Claim or Appeal is Pending at the Appeals Council (AC).

G. Adjudicating subsequent claims by DDS

When a subsequent claim is received in the DDS, follow normal processing instructions to process the claim and develop medical history, as indicated:

1. Documenting a favorable determination for an MDF claim

  • Request evidence for the period after the date of the ALJ decision or cessation date.

  • If you can make a favorable determination, it is not necessary to request copies of medical evidence from ODAR.

  • If you cannot make a favorable determination, prepare the determination in accordance with the instructions in this section at DI 20101.025E.1. before requesting copies of evidence from ODAR, Office of Appellate Operations (OAO).

2. Documenting a favorable determination for a CEF claim

If the DDS can make a fully favorable or partially favorable determination on the subsequent CEF claim:

  • Enter “onset restricted to MM/DD/YY, AC appeal on prior claim,” in Item 34 of the SSA-831 (Disability Determination and Transmittal), unless using the actual onset date (see DI 20101.025F. in this section);

  • Add a message without an expiration date to the CEF stating “FAVORABLE”; and

  • Return the claim to the servicing FO or Office of Quality Performance (OQP).

NOTE: If the DDS case processing system is at version 14.0 or later, an electronic folder interface automatically generates a message notifying the AC of the favorable determination, “A favorable determination was made on another case for this SSN (insert SSN).”

3. Preparing an unfavorable determination on a CEF claim

If the DDS cannot make a favorable determination on the subsequent claim:

  • Prepare the determination in the usual manner, including the personalized disability notice (PDN);

  • Add a message without an expiration date to the CEF stating “UNFAVORABLE – Process any appeal; and

  • Return the claim to the servicing FO or OQP.

NOTE: The AC does not need to be alerted of unfavorable determinations on subsequent claims; therefore, the DDS does not send a message to the AC.

H. Adjudicating subsequent MDF claims by DDS

When the DDS receives a subsequent claim, follow normal processing instructions to process the claim and develop medical history, as indicated:

  • Request evidence for the period after the date of the ALJ decision or cessation date;

  • If you can make a favorable determination, it is not necessary to request copies of medical evidence from ODAR;

  • If you cannot make a favorable determination, prepare the determination in accordance with the instructions in this section at DI 20101.025E.1 before requesting copies of evidence from ODAR, Office of Appellate Operations (OAO).

I. Developing evidence for the period before the ALJ decision in the prior claim

Determine if any of the following apply before developing the period before the ALJ decision in the prior claim:

  • 12 months have elapsed from the date of the ALJ decision;

  • Claimant alleges disability after the date of ALJ decision; or

  • Claimant has not sought medical treatment in the preceding 12 months.

If any of the previous three bullets apply, do not request evidence from OAO.

1. Obtaining evidence from a prior folder

If evidence from the prior folder at OAO is needed for development of a complete medical history and the case is electronic, the DDS copies the relevant evidence from a prior folder to the current CEF. If the prior folder is an MDF, complete an SSA-5002 (Report of Contact) including:

  • The name and address of the DDS;

  • The claimant's name;

  • Social Security Number;

  • Date of subsequent application;

  • Alleged onset date;

  • A specific statement describing the period for which medical evidence is being requested; and

  • an address for return of the evidence.

Fax requests for photocopies of the evidence to OAO, Attention: Subsequent Application Coordinator at (703) 605-7101;

Allow 90 days before making a follow-up request;

Once the evidence is received, scan the evidence into the current CEF.

2. Documenting a favorable determination

If the DDS can make a fully favorable or partially favorable determination on the subsequent claim:

  • Enter “onset restricted to mm/dd/yy, AC appeal on prior claim,” in Item 34 of the SSA-831 (Disability Determination and Transmittal), unless using the actual onset date.

  • Check the favorable box on the subsequent claim flag. Be sure to check the appropriate section, “initial” or “reconsideration.”

3. Preparing an unfavorable determination

Prepare the determination in the usual manner, including the personalized disability notice. Process CEFs according to the instructions in Subsequent Claim Filed While a Prior Claim or Appeal is Pending at the Appeals Council (AC) DI 81020.120.

4. Considering Acquiescence Rulings (AR)

For CEF processing instructions, see Subsequent Claim Filed While a Prior Claim or Appeal is Pending at the Appeals Council (AC) DI 81020.120.

  • Comply with all relevant ARs dealing with adopting findings from prior final ALJ or AC decisions.

  • In the Fourth, Sixth, and Ninth Circuits, for cases where the AC dismisses or denies the Request for Review, OAO faxes a subsequent claim flag, a copy of the denial notice, and a copy of the ALJ's decision to the appropriate FO.

  • The FO notifies the DDS that the prior ALJ decision is final and adjudicates the subsequent application in accordance with the ARs.

REFERENCE:

DI 81020.120 - Subsequent Claim Filed While a Prior Claim or Appeal is Pending at the Appeals Council (AC)

J. Exhibits

1. CEF flag

Process certified electronic folders (CEFs) according to the instructions in Processing Subsequent Claims or Appeals Filed While a Prior Claim or Appeal is Pending at the Appeals Council (AC) DI 81010.155 and Certified Electronic Folder (CEF) Flags DI 81020.085.

2. Subsequent claim paper flag

Claimant's name:

SSN(s):

Request for Review date on ALJ decision ___________

OAO branch with jurisdiction of ALJ decision ____________

This claimant has filed a subsequent claim (check appropriate item)

  • Appeal of ALJ decision on prior claim pending at AC

  • No appeal filed on ALJ decision (Still in appeal period)

DDS ACTION ON SUBSEQUENT CLAIM

Initial Level

  • Favorable – the FO or PC should immediately FAX a copy of the SSA-831 to the Office of the Appellate Operations (OAO) at (703) 605-7101, Attention: Subsequent Claim Coordinator. After effectuation, the FO or PC should send the file to the OAO branch that has jurisdiction of the ALJ decision on the prior claim.

  • Unfavorable – Process any reconsideration/hearing request.

Reconsideration Level

  • Favorable – the FO or PC should immediately FAX a copy of the SSA-831 to the Office of the Appellate Operations (OAO) at, (703) 605-7101 Attention: Subsequent Claim effectuation, the FO or PC should send the file to the OAO branch that has jurisdiction of the ALJ decision on the prior claim.

FO or PC fill-in:

OAO branch with jurisdiction of ALJ decision __________

  • Unfavorable – Process any request for hearing.

3. ODAR subsequent paper claim flag

Exhibit 2- Attached by OAO Staff

G-DI_20101.025J-1

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DI 20101.025 - Subsequent Claim Filed or Reconsideration on a Subsequent Claim is Requested While Hearing, Appeals Council (AC) Review, or Court Action Pending on Prior Claim - 11/12/2013
Batch run: 11/12/2013
Rev:11/12/2013