TN 9 (05-02)

A. POLICY

While an individual has a pending court case on a prior disability application, adjudicative action cannot be taken on the new disability application for the period already considered in the final decision of the Commissioner that is before the court. (See GN 03106.090A.)

Therefore, the date of entitlement/eligibility (DOE) and the date of onset for disability claims on a new application cannot be established before the end of the period previously considered on the prior claim.

NOTE: Since the DOE for title XVI cannot be prior to the filing date, the DOE for any “new” title XVI disability application is not affected by the disability onset issues of a claim pending in court unless the new application was filed before the date of the ALJ decision on the prior application. (See GN 03106.090A.) Other factors of eligibility, e.g., proof of age, or proof of residency in concurrent or title XVI only claims, could be issues common to the prior claim.

B. PROCEDURE

1. Development on New Disability Application - FO

The FO will develop the new title II, XVI, or concurrent disability application according to standard procedures for processing claims, with the following exceptions:

Do not trigger the claim for payment. Forward the new application to the appropriate DDS with a transmittal sheet annotated as follows:

“DO NOT REMOVE UNTIL PROCESSING ON CURRENT CLAIM IS COMPLETED."

Also, “New Disability Application – Court Case Pending. Do not release any denial notices or make any systems inputs” and “Onset cannot be established prior to (date of final decision of the Commissioner on the prior claim.)”

2. Technical Denial on New Application – FO

If the final decision of the Commissioner on the pending court case ruled through the date the non-disability requirements were last met (i.e., date last insured for DIB, ending date of prescribed period for DWB; age 22 for CDB), the FO will take the following action:

1. Prepare and send a technical denial notice to the claimant, giving appeal rights.

2. Include the following when the common issue is:

   • Disability - “We are unable to consider your application filed on (date of new application) for the period ending (date of final decision on the prior claim) because it is a duplicate of your claim that is still pending before the (court/Social Security Administration after a court remand). The Social Security Administration cannot consider any time period that is being reviewed as a result of a civil action. Also, we are denying your claim for the period beginning (date one day after the date of the final decision on the prior claim) because (non-disability requirements that prevents medical review.")

   • Not Disability-"We are unable to consider your application filed on (date of new application) because it is a duplicate of your claim that is still pending before the (court/Social Security Administration after a court remand). The Social Security Administration cannot consider any issue that is being reviewed as a result of a civil action."

   CAUTION: Do not send the new disability application to the DDS for a medical determination.

   Forward the claim folder for association with the pending court case claim folder. If additional evidence is submitted with the new disability application, annotate the route slip, “New disability application filed on pending court case – additional evidence submitted.”

   NOTE: If the claimant requests reconsideration of the initial technical denial, forward the reconsideration request to OCO/PSC for a determination.

3. Technical Denial on New Title II Disability Application – PC

Review the claim to determine if a technical reconsideration denial is appropriate. If the initial denial is affirmed, PC will:

• Release the technical reconsideration denial notice (See GN 03106.095B.2. for guidance on the notice language); and

• Determine if any additional evidence submitted in connection with the new application is part of the record in the pending court case. If new evidence is not part of the pending court case, send a memorandum to:

  ODAR, OAO
  5107 Leesburg Pike
  Falls Church, VA 22041-3200

Set forth the facts pertaining to both claims and attach copies of the denial letter and additional evidence the claimant submitted.

NOTE: Do not send a memorandum to ODAR if no additional evidence is submitted or if the evidence submitted duplicates evidence being considered in the pending court case.

File a copy of the memorandum and medical evidence on the right side of the new application claims folder or in the Yellow (Back) section of the MDF (see GN 03106.095B.1.) and forward the file to its normal storage facility pending a possible appeal by the claimant.

Forward a copy of the memorandum to OGC. See GN 03106.020B. for a hyperlink to OGC's telephone directory.

4. DDS Favorable Determination on New Disability Application - FOs

FOs will process the determination made on the new disability application.

If there is still a pending court case and the determination on the new disability application is an allowance, complete all non-medical development.

a. If Claim is - Title II

Route to OCO/PSC, as appropriate, with the following annotation on the route slip, “New Disability Application – Title II Allowance – Pending Court Case.”

b. If Claim is - Title XVI

Effectuate the allowance.

c. If Claim is - Concurrent

Effectuate the title XVI allowance and forward the title II claim to the PC, with the following annotation on the route slip, “New Application – Concurrent Allowance -- Pending Court Case.”

5. Processing Allowances – PC/FO

a. All Factors of Entitlement/Eligibility Are Met

If all factors of the entitlement/eligibility are met:

• PCs will effectuate payment of title II claims and the title II portion of concurrent claims with a date of onset no earlier than one day after the date of the final decision of the Commissioner on the pending court case.

• FOs will effectuate payment of title XVI claims and the title XVI portion of concurrent claims with an eligibility date no earlier than the date of the subsequent application or 1 day after the date of the final decision of the Commissioner on the pending court case, whichever is later. (See GN 03106.090C.)

b. Allowance Notice

Add a paragraph to the allowance notice stating:

“This decision applies only to the application you filed on (date of the new application). This does not affect the decision on your earlier claim that is still pending review by the (court/Social Security Administration because of the court's remand order).”

If the alleged onset date in the new disability application is on or before the date of the last administrative decision on the prior claim, add the following:

“We cannot find that your disability started before (fill in the date of the final decision of the Commissioner on the prior claim) on this claim because final action is still pending on your earlier claim.”

c. Complete Payment Action

Complete payment action and send the file to ODAR, OAO with a memorandum setting forth the facts pertaining to both claims (see GN 03106.095B.3. for mailing address). Include:

• The date of the applications;

• The alleged onset dates;

• The date of the final decision of the Commissioner on the pending court case;

• The basis for the allowance of the new claim.

NOTE: After completing the memorandum:

• File a copy on the right side of the new application claims folder, or the Red section of the MDF (See DI 70005.005B.1.)

• Send a copy to OGC. See GN 03106.020B. for a hyperlink to OGC's address.

6. Processing Denials – PC/DDS

a. Determination on New Application is a Denial - DDS Action

If the determination on the new application is a denial, the DDS will forward the claim, regardless of title, to the appropriate FO with the following annotation on the route slip, “New Application – Title (II, XVI, Concurrent) – Pending Court Case.”

b. Determination on New Application is a Denial - PC Action

If the determination on the new application is a denial, the PC will:

• Effectuate the denial in title II claims and the title II portion of concurrent claims,

• Release all appropriate notices, with this additional paragraph:

  “This decision applies only to the application you filed on (filing date of the new application). This decision does not affect the decision on your earlier claim, which is still pending review by the (court/Social Security Administration because of the court's remand order).

• Send a Memorandum to ODAR, OAO as indicated in GN 03106.095B.3., attaching copies of the denial letter and evidence;

• Retain the claim file during the appeal period.

7. Processing Denials – FO

The FO will:

• Effectuate the denial in title XVI claims and the title XVI portion of concurrent claims;

• Send a memorandum to ODAR, OAO as indicated in GN 03106.095B.3., attaching copies of the denial letter and evidence;

• Release all appropriate notices, with this additional paragraph:

• “This decision applies only to the application you filed on (filing date of the new application). This decision does not affect the decision on your earlier claim, which is still pending review by the (court/Social Security Administration because of the court's remand order).

• Retain the title XVI claim file during the appeals period.