GN 03104: Appeals Council Review (Title II and Entitlement Under Title XVIII)
TN 4 (04-01)
Effective July 28, 2011, we will not generally accept a new disability application from a claimant who 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 and DI 51501.005 - Claimant Requests to File a New Disability Application for the policies and procedures for when a claimant may file a new disability application while he or she has a claim pending administrative review. For instructions on how to process subsequent disability claims and appeals through EDCS, see DI 81010.155 Processing Subsequent Claims or Appeals Filed While a Prior Claim or Appeal is Pending at the Appeals Council.
If a claimant submits additional evidence, the field office must forward it to the office handling the prior claim. For instructions on handling additional evidence while a prior claim is pending administrative review, see DI 51501.015 - Claimant Submits Additional Evidence.
A. Procedure -- FO–determining whether to process or associate the subsequent application (Title II/XVI)
Determine whether the claimant has a request for review pending at the AC on a prior claim. Obtain this information from the claimant or representative and verify with an OHAQ (MSOM OHA 001.003 ). The RRD field on the query is the request for review date; this indicates a request for review is pending at the AC.
NOTE: For subsequent Title XVI non-disability applications, also see SI 04040.025.
Determine whether the claimant is filing based on a new issue, i.e., one that we have not already decided at some level of the administrative appeals process.
If it is a new issue, process the subsequent application under normal claim processing procedures. See GN 01010.000 for title II/XVI adjudicative policy and standards. Follow the instructions in GN 03104.380B. for systems input.
If it is an issue that we have already decided at some level of the appeal process, send the subsequent application to the AC for association with the prior claim by using the subsequent application flag at GN 03104.390.
NOTE: The date of entitlement/eligibility can be no earlier than the day after the date of the ALJ decision. The period on or before the date of the ALJ decision rests with the AC.
Secure a SSA-1696-U4 if the claimant is represented. A new SSA-1696-U4 is necessary even if the representative is the same as on the prior claim.
Explain to the claimant that until the AC completes its action, we will not be deciding the period on or before the date of the ALJ decision because that period is being decided by the AC. Also, explain that he/she will receive a notice from the AC on the request for review and a separate notice on the subsequent application and that each notice will explain the claimant's appeal rights, where appropriate.
Attach the flag at GN 03104.390 and the OHAQ to the outside of the subsequent claim file. This is an alert that there is a prior claim pending review at the Appeals Council and should remain on the file in the event that the determination on the subsequent application is favorable and/or appealed. Also, attach the flag even if the claimant has not appealed the ALJ's decision on the prior claim, but files the subsequent application within the 60-day period for appeal on the ALJ decision.
2. Subsequent application and request for review filed simultaneously
Take the subsequent application as instructed above. Explain to the claimant that he/she will receive a notice from the AC on the request for review. Explain that he/she will receive a separate notice on the subsequent application and that each notice will explain the claimant's appeal rights.
Take the request for review in the usual manner and include a Report of Contact to the AC. Explain that the claimant has filed a subsequent application at the same time as the request for review, and that it will be forwarded for association if it is determined that the issue is the same as the issue decided by the ALJ in the prior claim.
B. Procedure -- examples of new issues versus ones that have already been adjudicated
For subsequent non-disability title II/XVI applications filed 12/30/99, or later with a new issue, process the subsequent application. For subsequent non-disability title II/XVI applications filed 12/30/99, or later with an issue that has already been decided at some level of the appeal process, send the subsequent application to the AC for association. The POMS at DI 12045.027 and DI 20101.025 will provide procedures for handling subsequent disability applications.
We have provided the examples shown below to help determine whether the issue is new or one that has already been decided:
Judy files an application in 02/97 on behalf of the NH's stepchild. We deny the claim through the reconsideration level because the NH was not providing one-half support at any of the applicable points in time. The ALJ issues a decision in 09/98 denying benefits on the same issue. A request for review is now pending at the AC. Judy files a new application in 01/00 with evidence proving one-half support as of 10/97. You will send the subsequent application to the AC for association because the evidence proving one-half support is relevant to the period before the ALJ decision.
NOTE: Once the ALJ issues a decision, this closes the record, i.e., the AC will consider additional evidence only if it relates to the period on or before the date of the ALJ's decision.
Joanne files a title XVI application and is denied in 02/97 for excess resources due a cash “loan” that she received from a relative. The ALJ upholds the determination in 05/98. The claim is now pending review at the AC. Joanne files a subsequent application in 01/00. She says she has no money other than money loaned to her in 01/00. This time she has a written statement that the money loaned to her in 01/00 was a bona fide loan. There is an understanding between the parties that the money borrowed is to be repaid and is recognized as an enforceable contract under State law. You will process the application because the proof relates to the current application.
C. Procedure -- date of entitlement/eligibility of the subsequent non-DIB application
The date of entitlement/eligibility can be no earlier than the day after the date of the ALJ decision.
Refer to the guidelines in GN 01010.001 ff. if you have any questions on how to adjudicate the subsequent application. Please note, however, that a subsequently filed claim with an appeal pending at the AC on the prior claim is no longer a DOFA exclusion.
DI 12045.027 will contain FO instructions on processing subsequent title II/XVI DIB applications.
DI 20101.025 will contain DDS instructions on processing subsequent title II/XVI DIB applications.
DI 51501.001 has information about the July 28, 2011 procedural change for subsequent disability applications.
DI 51501.005 provides instructions for handling a claimant’s request to file a new disability application when he or she has a disability claim pending administrative review.
DI 51501.015 has instructions for processing additional evidence when a disability claim is pending administrative review.
GN 01010.000 for title II/XVI adjudicative policy and standards.
MSOM MSSICS 008.003 and SM 01005.030 for systems input.