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SI 04040.025: Subsequent Application Filed While A Request For Review Is Pending At Appeals Council (AC) On Prior Claim - Title XVI Nondisability

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  • Effective Dates: 03/10/2015 - Present
  • Effective Dates: 01/18/2018 - Present
  • TN 1 (02-02)
  • SI 04040.025 Subsequent Application Filed While A Request For Review Is Pending At Appeals Council (AC) On Prior Claim - Title XVI Nondisability
  • A. Policy
  • Prior to December 30,1999 when a appellant filed a subsequent application while a request for review on the prior claim was pending at the AC, the field office forwarded it to the AC for association and expedited processing of the appeal. Effective December 30,1999, as the result of a Commissioner's Decision, field offices will, in most cases, process and adjudicate the subsequent applications. Any favorable determination made on the subsequent application will be limited to the period beginning with the day after the date of the ALJ decision that is pending review at the AC.
  • These instructions do not apply to subsequent applications that are duplicates. A duplicate application is an application filed for the same benefit for which a previous claim has already been filed.
  • NOTE: Before accepting a new disability application or processing additional evidence from a claimant who has a disability claim pending at any level of administrative review, see DI 51501.001 – Procedural Change for Subsequent Disability Applications, DI 51501.005 - Claimant Requests to File a New Disability Application, and DI 51501.015 - Claimant Submits Additional Evidence.
  • B. Procedure - Processing Subsequent Application
  • 1. Subsequent Claim Filed
  • Take the following actions when you have a subsequent application:
  • * Determine whether the appellant has a request for review pending at the AC on a prior claim. Obtain this information from the appellant 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.
  • * Determine whether the appellant is filing based on a new issue, i.e., an issue that we have not already decided at some level of the administrative appeals process.
  • If it is a new issue, process the subsequent application through MSSICS. Follow the instructions in DI 12045.027D for title XVI disability claims and GN 03104.370 for non-disability title II claims.
  • If the subsequent application concerns an issue that is currently before the AC for a decision, send the subsequent application to the AC for association with the prior claim by using the subsequent application flag at SI 04040.028. For example, if the AC is deciding an overpayment issue and the subsequent application involves a waiver issue, forward the subsequent application to the AC. The issue of waiver depends on how the AC will decide on the overpayment issue.
  • NOTE: For favorable determinations in initial claims, the date of 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 for the prior claim.
  • * Explain to the appellant that until the AC completes its action, we will not be decid­ing the period on or before the date of the ALJ decision. The period before the ALJ decision will be 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 appeal rights, where appropriate.
  • * Attach the flag at SI 04040.028 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 AC 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 appellant has not yet filed an appeal of the ALJ decision, but files the subsequent application within the 60-day period for appeal on the ALJ decision.
  • 2. Subsequent Application and RR Filed Simultaneously
  • If a subsequent application and request for review are filed together and the appellant is filing based on a new issue, process the subsequent application through MSSICS. Follow SI 04040.020 for processing the request for review. If the subsequent application and the request for review involve the same issue, send the subsequent application with the request for review to the AC.
  • 3. Systems Input
  • Take the following systems actions:
  • * Reestablish MSSICS to control subsequent claim, this automatically terminates the prior claim.
  • * Control the prior claim (claim pending at AC) with an MDW record and completion of DW01 development worksheet as shown below.
  • * On the subsequent claim, include the following supplemental security record (SSR) remark: PRIOR CLAIM AWAITING AC DECISION.
  • * On the MDW record include:
  • * an issue of “AC Appeal,” and
  • * in the remarks for that issue: Prior claim dated mm/dd/yy pending at the AC; and
  • * the date of appeal and date sent to AC.
  • * On the DW01 include:
  • * an issue of “AC Appeal,” and
  • * in the remarks for that issue: Prior claim dated mm/dd/yy pending at the AC; and
  • * the date of appeal and date sent to AC; and
  • * set an appropriate tickle date for the AC decision.
  • C. Procedure - Subsequent Application Determination
  • 1. Favorable Determination
  • If the subsequent application is favorable, then:
  • * Immediately FAX a copy of the award notice to OAO at:
  • Subsequent Application Coordinator
  • Office of Appellate Operations (OAO)
  • FAX number (703) 605-7101
  • This will provide the AC with advance notice that a subsequent favorable determination is on the way.
  • * Process the subsequent claim through MSSICS. The appellant can file a subsequent application at any time while a prior claim is pending in the appeal process. However, payment for a subsequent application when a request for review is pending at the AC on a prior claim can begin no earlier than the day after the date of the ALJ decision on the prior claim.
  • * Verify payment effectuation and release notice.
  • After the claim is processed, immediately forward the folder to the OAO branch with jurisdiction of the prior claim via a SSA-408 route slip. The OAO branch can be identified through the OHAQ.
  • NOTE: The AC will consider the evidence on the subsequent application to determine whether there is new and material evidence relating to the prior claim. The AC will expedite its action on the request for review in this situation.
  • Please note that the AC may also conclude that the favorable determination on the subsequent application was incorrect. In such cases, the AC may exercise the Agency's authority under existing regulations to reopen the subsequent allowance. The AC may vacate the ALJ decision on the prior claim, consolidate the prior and subsequent claims, and remand both to the ALJ for further proceedings, including a new decision.
  • 2. Unfavorable Determination
  • If the subsequent application is unfavorable:
  • * Process the claim through MSSICS.
  • * Retain file for appeals period. Follow normal appeals procedures for taking reconsideration (SI 04020.000) or ALJ hearing (SI 04030.000) requests. If the appellant appeals to the ALJ level, the hearing office will defer action on the appeal until the AC completes its action on the prior claim.
  • * Keep the subsequent claim flag (SI 04040.028) on the folder when routing it to ODAR for appeal.
  • * Keep the subsequent claim flag (SI 04040.028) on the folder when routing it to Office of Hearings Operations (OHO) for appeal.
  • NOTE: If a appellant submits new and material evidence to the HO and there is reason to believe that a revised determination would be fully favorable to the appellant, an ALJ may formally remand the case to the effectuating component.
  • D. Reference
  • See GN 03104.370 for title II information on subsequent nondisability applications filed while a request for review is pending at the AC on prior title II nondisability claim.
  • See DI 12045.027 for subsequent title II or title XVI disability applications when a request for review is pending at the AC on a prior title II or title XVI disability claim.
  • See DI 12045.027D.1 and DI 12045.027D.2. on notifying OAO if the subsequent claim is a favorable SSI disability claim.
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