Legal Question in Social Security Law in California

SSA Appeals Council Duty

1-SSI Disability denied by ALJ#1. 2-Appealed to AC which issues ambiguous denial of review. 3-Claimant reapplies using same onset date. 4-Claim allowed but with onset date of 2nd claim application. 5-Onset date appealed. 6-ALJ#2 decides Claim #1 can not be reopened--res judicata applies. 7- AC agrees. 6-US Dist Court decides ALJ #2 and Appeals Council were wrong. (Claim #1 can be reopened. Res juducata does not apply). Court remands to AC for appropriate action. AC sends it back down for another hearing. 8-ALJ#3 holds hearing covering period of Claim #1 and Claim #2 . 9. ALJ #3 denies disability for Claim #1 period, but reaffirms it for Claim #2 (Claimant still getting paid).

QUESTIONS: 1) Does AC have right to avoid review of ALJ #1's decision (which was ridden with reversible legal error) and get ''another bite at the apple'' to deny Claim #1? and 2) What would be the best course of action now? (ALJ#3 decision still within the appeals period). Thank you.


Asked on 8/24/08, 5:53 pm

1 Answer from Attorneys
Samuel Salazar Law Offices of Samuel L. Salazar

Re: SSA Appeals Council Duty

I have one question first, but I will answer both ways as I am unclear as to what ALJ #3 did. You said he denied Claim #1 but "reaffirms" Claim #2. You had 2 decisions for Claim # 2, one you were granted a favorable Decision and the second was later denied. I'm assuming that the reaffirming was to grant benefits for cliam # 2.

To answer your question Res Judicata does apply pursuant to the Chavez decision (citation ommited). I can get you the cite later. However Res Judicata wil NOT apply if ther is a "change in circumstances". In other words Res Judicata depends on the actual facts and is decided on a case to case basis.

To answer your question, the Appeals Council can avoid review (which is what they do in most cases).

Now let me answer your 2 questions: 1) Can I appeal, you can always appeal if you think you have a good legal argument. If there are "judicial erros" you should appeal. But you must know the law and should not undertake this without an attorney.

Question 2 is what is the best course of action. I will simply state that "a bird in hand is worth 2 in the bush". I do not think you should have appealed the second decision when the amended the onset date. You had a favorable decision and decided to appeal that. I do not know any of the circumstances of the decision and why the Judges found what and how they did. I would have to see all of the decisions to evaluate the Judges decsions. I cannot give legal advise with blinders on.

Having said that, from a practical matter, you should just keep the favorable decision you received and drop the issue. I do not know why the Judge gave you a different onset date, but is is very likely that you reached another age (50, 54 or 60 it depends upon what your physical residual capacity is.) after the new onset date. If that is the case, DO NOT APPEAL. That is exactly what happened in the Chavez case. Reaching the age of 50 or 54 or 60)which is a "change in circumstances" that I mentioned earlier. If you need more information you can email me directly at: [email protected]

Good luck

Samuel L. Salazar

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Answered on 8/26/08, 9:23 am


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