To Re-File or not to Re-File? A Guide to Post-Denial Decisionmaking

Updated: Jul 27, 2019

One of the hardest parts of my job involves talking to clients who recently received a denial letter from a Social Security judge. With tears in their eyes, they inevitably ask a crucial question: what comes next? The answer depends on your specific situation and goals, but there are a few general guidelines to consider.

There are usually two options for the claimant who has been denied by an ALJ: appeal or re-file. ALJ decision appeals go to the Appeals Council, located in Falls Church, VA. The Appeals Council has three options: deny the request for review (the ALJ decision stands), remand the case to the ALJ (send it back), or reverse the decision (award benefits). Unlike with the ALJ, the Appeals Council makes its decision without seeing you in person. It also limits its decision to the time period before the ALJ decision; in other words, if you are denied and get cancer the following week, that evidence will not be considered. If that sounds harsh, get ready for this: the Appeals Council's remand rate has dropped sharply from FY 2010 to FY 2016, from 21.77% to 12.03%. The reversal rate is even less. That means you have a small chance of prevailing on appeal.


In most cases, the better option is to re-file your claim, essentially starting over. It is important to note that, for Social Security disability (Title II) cases, you may only file a new claim if your date last insured has not expired. This date is generally five years after your last day worked. If your date last insured has expired, you must appeal your claim in order to preserve your Title II eligibility. Please note that this requirement does not apply to SSI claims; you may re-file your SSI application as many times as you want.


The circumstances surrounding each case vary, and it is important to get legal advice regardless of the decision you make. An experienced attorney can help you file your appeal with the Appeals Council and file a legal brief arguing why your claim should be awarded. If you've been denied by an ALJ, hang in there - you have options.

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This website is an advertisement for legal services. Merely contacting this office does not establish an attorney-client relationship. The information provided herein is for informational purposes only, and is not meant to constitute legal advice. You should seek legal advice that is specific to your circumstances. Offices located in Kentucky. Our firm serves clients in all 50 states. Services may be performed by others.  

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