Gardberg & Kemmerly, P.C. Attorneys at Law




Once you have a hearing before an Administrative Law Judge (ALJ) and should you receive a denial, you have two options. The first is to appeal that denial which protects your onset date and filing date. This appeal is processed by the Appeals Council. The average time for an Appeals Council decision can be approximately two years of waiting. Social Security will not allow you to file an additional application during this time period unless you get permission from the Appeals Council to file a new claim.


Should the Appeals Council deny your appeal for benefits, you can file a new application and/or appeal the claim to Federal District Court. It is important to read your Appeals Council denial carefully. Some decisions have an important paragraph noting that if you decide to file a new claim within 6 months of the date of the AC denial, you can use the date you requested AC review as your protective filing date. Your onset date in these matters, however, can go back to the day after the ALJ's unfavorable decision.


Why is this important? Social Security will only pay retroactive benefits for 12 months prior to the date you filed, even if your onset date for disability is more than 12 months back. For example: An ALJ denies your claim in an unfavorable decision dated January 1, 2016. You appeal it to the Appeals Council on February 15, 2016. The Appeals Council takes almost two years and denies your appeal on January 30, 2018. If you filed a new claim on March 1, 2018 alleging disability beginning the day after the ALJ's denial, January 2, 2016, and was approved, you would only receive retroactive benefits back to March 1, 2017 and your Medicaid would not go into effect till March of 2019. However, if the Appeals Council denial allows you to use your appeal date of February 15, 2016, and your onset date is January 2, 2016, then your retroactive benefits would begin to calculate in June of 2016 (January minus the 5 month waiting period), and your Medicaid would be effective in June of 2018.

This can be the difference in thousands of dollars in benefits and medical coverage for yourself or a loved one. If you are filing for disability, been denied for benefits, or know someone who has, please call and talk to an experienced disability representative at our firm who can help advise you on your appeal options at 251-343-1111 for a free consultation. Gardberg & Kemmerly specializes in helping the injured and disabled in Alabama, Mississippi, Florida, and Louisiana.  

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