He lost his Social Security Disability Claim before a judge. He may have been a bad judge. You think an appeal would overrule the judge. Should he file an appeal? An appeal of a judge’s decision goes to the Appeals Council (AC). The AC takes 12 to 24 months to rule on such an appeal.

The most likely action by the AC is to remand or return the case to the same judge that denied the claim. This will allow the judge to correct any mistakes he made in denying the claim. This new hearing takes a year. If you lose, you can appeal again to the AC. Then, if the Appeals Council finds that the judge made mistakes at the second hearing, the AC will refer him for a third hearing in front of a new judge, but he’s lucky to do it within three years.

It used to be that you could file a “new claim” while the Appeals Council appeal was pending. In a new ruling, Social Security has now rejected this approach. The new rule is SSR 11-1p. It says that if you are appealing an opposing judge’s decision, you are no longer allowed to file a “new claim” while the appeal is pending.

So if you think you have a good case and you just got a bad judge, you have a decision to make. Do you try the two to three year Appeals Council appeal process or do you file a “new claim” and get a new hearing before a new judge within 18 months? (Of course, your “new lawsuit” could end up before the same bad judge.)

If you file the “new claim,” you cannot apply for benefits before the date of the last adverse decision by a judge. Therefore, you will lose benefits even if you win on your “new claim” for benefits.

In some cases, you have to appeal to the Appeals Council. This is when you have a problem with the Last Assured Date (LID). If you do not appeal, the judge’s decision may be the “final decision” in your case. You cannot file a “new claim” because your Last Insured Date (LID) has expired. For most employees who have had full employment, the last insured date (LID) is five years after leaving employment.

In conclusion, due to the long delays in the AC process, it may now be better to file a “new claim” rather than appeal the opposing judge’s decision.