TN 9 (05-02)

A. Policy

An individual may file a new disability application while an appeal of a prior disability claim is pending in court or before the Appeals Council (AC) after a court remand. A new title II disability application, regardless of the title of the prior pending claim, should be adjudicated on the merits unless it merely duplicates the prior claim; e.g., a disability insurance benefits claim in which the date last insured expired before the administrative law judge's (ALJ's) decision on the prior application for the same benefits. ALL new SSI disability claims filed after the date of the prior ALJ decision can be adjudicated on the merits because the eligibility date cannot be before the date of the application.

FOs should accept the new disability application and supporting evidence, and route the material as indicated in GN 03106.090E. and GN 03106.095.

B. Procedure - establishing an onset date for the new title ii disability application

If the new title II disability application is allowed, the disability onset date cannot be earlier than one day after the date of the final decision of the Commissioner on the prior application; and

The date of the final decision of the Commissioner is:

• The date of the ALJ decision if the AC denied review; or

• The date of the AC decision if the AC granted review or reviewed on its own motion; or

• The date of the ALJ decision after court remand unless the AC assumed jurisdiction and issued a decision; or

• Deemed to be the date disability ceased as affirmed by the ALJ or AC in cessation cases. (See DI 27510.001B., Exhibit 3).

NOTE: In cessation cases from the Sixth Judicial Circuit, i.e., Kentucky, Michigan, Ohio, and Tennessee, the date of the final decision is the actual decision date and not the date disability ceased (see AR 92-2(6)).

C. Procedure - establishing an eligibility date for the new title xvi disability application

The date of eligibility on the new disability application in a title XVI case is not affected by a claim pending in court or on remand from a court. Therefore, the most recent title XVI disability application can be processed to payment without regard to the disability application pending before the court or before the Appeals Council because of a court remand. If a new title XVI disability application was filed with an unrelated or additional disability while the first application is pending before an ALJ, the new title XVI application must be processed to payment for the time period beginning no earlier than the day after the date of the ALJ decision on the title XVI disability application of the pending court case.

D. Definitions

1. New Applications

A new application, for purposes of this section, is a disability application filed by an individual who has a pending court case.

2. Pending Court Case

An individual is considered to have a pending court case if his/her civil action is pending before a federal court or is pending in OHO following a court remand. In most instances, after OHO issues a final decision on remand, the individual must file a new civil action to receive further judicial review and be considered as still having a pending court case.

3. Common Issue

Common issue cases should be very rare. Note that:

a. Title II Claims

In Title II claims, an onset date on the new disability application cannot be earlier than one day after the final decision on the prior disability claim; and

b. Title XVI Claims

In Title XVI claims, providing that the new SSI disability application was filed after the date of the ALJ decision on the prior SSI disability claim, the date of eligibility cannot be earlier than the date of the new disability application.

If a common issue exists, refer to GN 03106.090D.2. and GN 03106.090E.3. to determine the status of the prior claim. See DI 12045.000 for information regarding common issue.

E. Procedure - fo common issue

The FO will determine if the prior claim, either under the same or a different title, contains an issue common to the issue of the new application.

1. Common Issue Exists

If a common issue exists, i.e., claimant's prior disability application already adjudicated the entire period of potential entitlement on the new disability application:

• Process the duplicate claim as a technical denial. (See GN 03106.095B.)

• Forward the new disability application, after processing, by route slip annotated “Duplicate Application - Pending Court Case” to the SSA component that has the pending court case.

2. No Common Issue Exists

If no common issue exists, develop and process the new disability claim per GN 03106.095.

3. Status of Prior Claim

To determine the status of the prior claim, the FO will:

• Ask the claimant and/or his/her representative if the claimant has exhausted the administrative appeals process (i.e., initial, reconsideration, ALJ hearing and AC review, unless a claim was filed in a prototype state in which the reconsideration level has been eliminated or the expedited appeal process was used (see GN 03107.100)).

• Obtain an OHO query to help determine the status of the last administrative decision.

4. Status of Civil Action

To determine the status of the civil action, the FO will:

• Obtain a PACER query (see GN 02607.682A. for PACER access). If it is not possible to obtain the status of the civil action using PACER, call the appropriate OGC component responsible for the case (OGC/OPL in central office or the appropriate Regional Chief Counsel's Office) (see GN 03106.020B. for a hyperlink to OGC's telephone directory) (e.g., is the civil action pending before the court or has the court issued a decision).

• Obtain and review an OHO query to determine the date of the final decision of the Commissioner on the prior claim if the prior claim is still pending before the court or before the Commissioner after a court-ordered remand.

• See GN 03101.160 and DI 11010.340C. to determine if administrative res judicata applies to the new claim when the court or the agency has issued a final decision on the prior claim.