Continuing Disability Review
- Statutes,
Regulations and Rules
(Note: There are other relevant statutes, rules, and regs, but those compiled here are often useful when dealing with CDR issues. In addition, it should be noted that this page was last updated 5/26/00, and there may be changes to the law since that time.)
Table of Contents
42 USC
§ 423. Disability insurance benefit
payments
§ 421. Disability determinations
§ 1320b-19. The Ticket to Work and
Self-Sufficiency program
§ 404.1590 When and how often we
will conduct a continuing disability review
§ 404.1589 We may conduct a review
to find out whether you continue to be disabled
§ 404.1593 Medical evidence in
continuing disability review cases
§ 404.1579 How we will determine
whether your disability continues or ends
DI 13001.001 The Obligation To
Review Continuance of Disability
DI 40501.001 The Obligation to
Review Continuance of Disability
DG 95-219 PREEFFECTUATION REVIEW OF CONTINUINGDISABILITY REVIEW DECISIONS
DI 13005.005 Basis for Deciding
Continuance of Disability
AO
99N-128 OTH CONTINUING
DISABILITY REVIEW CONTROL
SM 05901.002 Claims Folder Flow
DI 28501.015 Reopening in
Continuing Disability Cases
DI 28001.001 What is a Continuing
Disability Review (CDR)?
(g) Continued payment of disability benefits during appeal
(1) In any case where--
(A) an individual is a recipient of disability insurance benefits, or of child's, widow's, or widower's insurance benefits based on disability,
(B) the physical or mental impairment on the basis of which such benefits are payable is found to have ceased, not to have existed, or to no longer be disabling, and as a consequence such individual is determined not to be entitled to such benefits, and
(C) a timely request for a hearing under section 421(d) of this title, or for an administrative review prior to such hearing, is pending with respect to the determination that he is not so entitled,
such individual may elect (in such manner and form and within such time as the Commissioner of Social Security shall by regulations prescribe) to have the payment of such benefits, the payment of any other benefits under this subchapter based on such individual's wages and self-employment income, the payment of mother's or father's insurance benefits to such individual's mother or father based on the disability of such individual as a child who has attained age 16, and the payment of benefits under subchapter XVIII of this chapter based on such individual's disability, continued for an additional period beginning with the first month beginning after January 12, 1983, for which (under such determination) such benefits are no longer otherwise payable, and ending with the earlier of (i) the month preceding the month in which a decision is made after such a hearing, or (ii) the month preceding the month in which no such request for a hearing or an administrative review is pending.
(2)(A) If an individual elects to have the payment of his benefits continued for an additional period under paragraph (1), and the final decision of the Commissioner of Social Security affirms the determination that he is not entitled to such benefits, any benefits paid under this subchapter pursuant to such election (for months in such additional period) shall be considered overpayments for all purposes of this subchapter, except as otherwise provided in subparagraph (B).
(B) If the Commissioner of Social Security determines that the individual's appeal of his termination of benefits was made in good faith, all of the benefits paid pursuant to such individual's election under paragraph (1) shall be subject to waiver consideration under the provisions of section 404 of this title. In making for purposes of this subparagraph any determination of whether any individual's appeal is made in good faith, the Commissioner of Social Security shall specifically take into account any physical, mental, educational, or linguistic limitation such individual may have (including any lack of facility with the English language).
(h) Interim benefits in cases of delayed final decisions
(1) In any case in which an administrative law judge has determined after a hearing as provided under section 405(b) of this title that an individual is entitled to disability insurance benefits or child's, widow's, or widower's insurance benefits based on disability and the Commissioner of Social Security has not issued the Commissioner's final decision in such case within 110 days after the date of the administrative law judge's determination, such benefits shall be currently paid for the months during the period beginning with the month preceding the month in which such 110-day period expires and ending with the month preceding the month in which such final decision is issued.
(2) For purposes of paragraph (1), in determining whether the 110-day period referred to in paragraph (1) has elapsed, any period of time for which the action or inaction of such individual or such individual's representative without good cause results in the delay in the issuance of the Commissioner's final decision shall not be taken into account to the extent that such period of time exceeds 20 calendar days.
(3) Any benefits currently paid under this subchapter pursuant to this subsection (for the months described in paragraph (1)) shall not be considered overpayments for any purpose of this subchapter (unless payment of such benefits was fraudulently obtained), and such benefits shall not be treated as past-due benefits for purposes of section 406(b)(1) of this title.
(i) Review of disability cases to determine continuing eligibility; permanent disability cases; appropriate number of cases reviewed; reporting requirements
(1) In any case where an individual is or has been determined to be under a disability, the case shall be reviewed by the applicable State agency or the Commissioner of Social Security (as may be appropriate), for purposes of continuing eligibility, at least once every 3 years, subject to paragraph (2); except that where a finding has been made that such disability is permanent, such reviews shall be made at such times as the Commissioner of Social Security determines to be appropriate. Reviews of cases under the preceding sentence shall be in addition to, and shall not be considered as a substitute for, any other reviews which are required or provided for under or in the administration of this subchapter.
(2) The requirement of paragraph (1) that cases be reviewed at least every 3 years shall not apply to the extent that the Commissioner of Social Security determines, on a State-by-State basis, that such requirement should be waived to insure that only the appropriate number of such cases are reviewed. The Commissioner of Social Security shall determine the appropriate number of cases to be reviewed in each State after consultation with the State agency performing such reviews, based upon the backlog of pending reviews, the projected number of new applications for disability insurance benefits, and the current and projected staffing levels of the State agency, but the Commissioner of Social Security shall provide for a waiver of such requirement only in the case of a State which makes a good faith effort to meet proper staffing requirements for the State agency and to process case reviews in a timely fashion. The Commissioner of Social Security shall report annually to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives with respect to the determinations made by the Commissioner of Social Security under the preceding sentence.
(3) The Commissioner of Social Security shall report annually to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives with respect to the number of reviews of continuing disability carried out under paragraph (1), the number of such reviews which result in an initial termination of benefits, the number of requests for reconsideration of such initial termination or for a hearing with respect to such termination under subsection (d) of this section, or both, and the number of such initial terminations which are overturned as the result of a reconsideration or hearing.
(4) In any case in which the Commissioner of Social Security initiates a review under this subsection of the case of an individual who has been determined to be under a disability, the Commissioner of Social Security shall notify such individual of the nature of the review to be carried out, the possibility that such review could result in the termination of benefits, and the right of the individual to provide medical evidence with respect to such review.
(a) Authority of Commissioner of Social Security
Subject to subsection (b) of this section, the Commissioner of Social Security may make such administrative and other arrangements (including arrangements for the determination of blindness and disability under section 1382c(a)(2) and (3) of this title in the same manner and subject to the same conditions as provided with respect to disability determinations under section 421 of this title) as may be necessary or appropriate to carry out the Commissioner's functions under this subchapter.
(b) Examination to determine blindness
In determining, for purposes of this subchapter, whether an individual is blind, there shall be an examination of such individual by a physician skilled in the diseases of the eye or by an optometrist, whichever the individual may select.
(c) Notification of review
In any case in which the Commissioner of Social Security initiates a review under this subchapter, similar to the continuing disability reviews authorized for purposes of subchapter II of this chapter under section 421(i) of this title, the Commissioner of Social Security shall notify the individual whose case is to be reviewed in the same manner as required under section 421(i)(4) of this title.
(d) Regulations regarding completion of plans for achieving self-support
The Commissioner of Social Security shall establish by regulation criteria for time limits and other criteria related to individuals' plans for achieving self-support, that take into account--
(1) the length of time that the individual will need to achieve the individual's employment goal (within such reasonable period as the Commissioner of Social Security may establish); and
(2) other factors determined by the Commissioner of Social Security to be appropriate.
(i) Suspension of disability reviews
During any period for which an individual is using, as defined by the Commissioner, a ticket to work and self-sufficiency issued under this section, the Commissioner (and any applicable State agency) may not initiate a continuing disability review or other review under section 421 of this title of whether the individual is or is not under a disability or a review under subchapter XVI of this chapter [ 42 U.S.C.A. § 1381 et seq.] similar to any such review under section 421 of this title.
(a) General. We conduct continuing disability reviews to determine whether or not you continue to meet the disability requirements of the law. Payment of cash benefits or a period of disability ends if the medical or other evidence shows that you are not disabled as determined under the standards set out in section 223(f) of the Social Security Act.
(b) When we will conduct a continuing disability review. A continuing disability review will be started if--
(1) You have been scheduled for a medical improvement expected diary review;
(2) You have been scheduled for a periodic review (medical improvement possible or medical improvement not expected) in accordance with the provisions of paragraph (d) of this section;
(3) We need a current medical or other report to see if your disability continues. (This could happen when, for example, an advance in medical technology, such as improved treatment for Alzheimer's disease or a change in vocational therapy or technology raises a disability issue.);
(4) You return to work and successfully complete a period of trial work;
(5) Substantial earnings are reported to your wage record;
(6) You tell us that you have recovered from your disability or that you have returned to work;
(7) Your State Vocational Rehabilitation Agency tells us that--
(i) The services have been completed; or
(ii) You are now working; or
(iii) You are able to work;
(8) Someone in a position to know of your physical or mental condition tells us that you are not disabled, that you are not following prescribed treatment, that you have returned to work, or that you are failing to follow the provisions of the Social Security Act or these regulations, and it appears that the report could be substantially correct;
(9) Evidence we receive raises a question as to whether your disability continues; or
(10) You have been scheduled for a vocational reexamination diary review.
(c) Definitions. As used in this section--
"Medical improvement expected diary"--refers to a case which is scheduled for review at a later date because the individual's impairment(s) is expected to improve. Generally, the diary period is set for not less than 6 months or for not more than 18 months. Examples of cases likely to be scheduled for medical improvement expected diary are fractures and cases in which corrective surgery is planned and recovery can be anticipated.
"Permanent impairment"--medical improvement not expected--refers to a case in which any medical improvement in the person's impairment(s) is not expected. This means an extremely severe condition determined on the basis of our experience in administering the disability programs to be at least static, but more likely to be progressively disabling either by itself or by reason of impairment complications, and unlikely to improve so as to permit the individual to engage in substantial gainful activity. The interaction of the individual's age, impairment consequences and lack of recent attachment to the labor market may also be considered in determining whether an impairment is permanent. Improvement which is considered temporary under §§ 404.1579(c)(4) or 404.1594(c)(3)(iv), as appropriate, will not be considered in deciding if an impairment is permanent. Examples of permanent impairments taken from the list contained in our other written guidelines which are available for public review are as follows and are not intended to be all inclusive:
(1) Parkinsonian Syndrome which has reached the level of severity necessary to meet the Listing in Appendix 1.
(2) Amyotrophic Lateral Sclerosis which has reached the level of severity necessary to meet the Listing in Appendix 1.
(3) Diffuse pulmonary fibrosis in an individual age 55 or over which has reached the level of severity necessary to meet the Listing in Appendix 1.
(4) Amputation of leg at hip.
"Nonpermanent impairment"--refers to a case in which any medical improvement in the person's impairment(s) is possible. This means an impairment for which improvement cannot be predicted based on current experience and the facts of the particular case but which is not at the level of severity of an impairment that is considered permanent. Examples of nonpermanent impairments are: regional enteritis, hyperthyroidism, and chronic ulcerative colitis.
"Vocational reexamination diary"--refers to a case which is scheduled for review at a later date because the individual is undergoing vocational therapy, training or an educational program which may improve his or her ability to work so that the disability requirement of the law is no longer met. Generally, the diary period will be set for the length of the training, therapy, or program of education.
(d) Frequency of review. If your impairment is expected to improve, generally we will review your continuing eligibility for disability benefits at intervals from 6 months to 18 months following our most recent decision. Our notice to you about the review of your case will tell you more precisely when the review will be conducted. If your disability is not considered permanent but is such that any medical improvement in your impairment(s) cannot be accurately predicted, we will review your continuing eligibility for disability benefits at least once every 3 years. If your disability is considered permanent, we will review your continuing eligibility for benefits no less frequently than once every 7 years but no more frequently than once every 5 years. Regardless of your classification, we will conduct an immediate continuing disability review if a question of continuing disability is raised pursuant to paragraph (b) of this section.
(e) Change in classification of impairment. If the evidence developed during a continuing disability review demonstrates that your impairment has improved, is expected to improve, or has worsened since the last review, we may reclassify your impairment to reflect this change in severity. A change in the classification of your impairment will change the frequency with which we will review your case. We may also reclassify certain impairments because of improved tests, treatment, and other technical advances concerning those impairments.
(f) Review after administrative appeal. If you were found eligible to receive or to continue to receive disability benefits on the basis of a decision by an administrative law judge, the Appeals Council or a Federal court, we will not conduct a continuing disability review earlier than 3 years after that decision unless your case should be scheduled for a medical improvement expected or vocational reexamination diary review or a question of continuing disability is raised pursuant to paragraph (b) of this section.
(g) Waiver of timeframes. All cases involving a nonpermanent impairment will be reviewed by us at least once every 3 years unless we, after consultation with the State agency, determine that the requirement should be waived to ensure that only the appropriate number of cases are reviewed. The appropriate number of cases to be reviewed is to be based on such considerations as the backlog of pending reviews, the projected number of new applications, and projected staffing levels. Such waiver shall be given only after good faith effort on the part of the State to meet staffing requirements and to process the reviews on a timely basis. Availability of independent medical resources may also be a factor. A "waiver" in this context refers to our administrative discretion to determine the appropriate number of cases to be reviewed on a State by State basis. Therefore, your continuing disability review may be delayed longer than 3 years following our original decision or other review under certain circumstances. Such a delay would be based on our need to ensure that backlogs, reviews required to be performed by the Social Security Disability Benefits Reform Act of 1984 (Pub.L. 98-460), and new disability claims workloads are accomplished within available medical and other resources in the State agency and that such reviews are done carefully and accurately.
[51 FR 16825, May 7, 1986]
After we find that you are disabled, we must evaluate your impairment(s) from time to time to determine if you are still eligible for disability cash benefits. We call this evaluation a continuing disability review. We may begin a continuing disability review for any number of reasons including your failure to follow the provisions of the Social Security Act or these regulations. When we begin such a review, we will notify you that we are reviewing your eligibility for disability benefits, why we are reviewing your eligibility, that in medical reviews the medical improvement review standard will apply, that our review could result in the termination of your benefits, and that you have the right to submit medical and other evidence for our consideration during the continuing disability review. In doing a medical review, we will develop a complete medical history of at least the preceding 12 months in any case in which a determination is made that you are no longer under a disability. If this review shows that we should stop payment of your benefits, we will notify you in writing and give you an opportunity to appeal. In § 404.1590 we describe those events that may prompt us to review whether you continue to be disabled.
[51 FR 16825, May 7, 1986]
(a) General. If you are entitled to benefits or if a period of disability has been established for you because you are disabled, we will have your case file with the supporting medical evidence previously used to establish or continue your entitlement. Generally, therefore, the medical evidence we will need for a continuing disability review will be that required to make a current determination or decision as to whether you are still disabled, as defined under the medical improvement review standard. See §§ 404.1579 and 404.1594.
(b) Obtaining evidence from your medical sources. You must provide us with reports from your physician, psychologist, or others who have treated or evaluated you, as well as any other evidence that will help us determine if you are still disabled. See § 404.1512. You must have a good reason for not giving us this information or we may find that your disability has ended. See § 404.1594(e)(2). If we ask you, you must contact your medical sources to help us get the medical reports. We will make every reasonable effort to help you in getting medical reports when you give us permission to request them from your physician, psychologist, or other medical sources. See § 404.1512(d)(1) concerning what we mean by every reasonable effort. In some instances, such as when a source is known to be unable to provide certain tests or procedures or is known to be nonproductive or uncooperative, we may order a consultative examination while awaiting receipt of medical source evidence. Before deciding that your disability has ended, we will develop a complete medical history covering at least the 12 months preceding the date you sign a report about your continuing disability status. See § 404.1512(c).
(c) When we will purchase a consultative examination. A consultative examination may be purchased when we need additional evidence to determine whether or not your disability continues. As a result, we may ask you, upon our request and reasonable notice, to undergo consultative examinations and tests to help us determine if you are still disabled. See § 404.1517. We will decide whether or not to purchase a consultative examination in accordance with the standards in §§ 404.1519a through 404.1519b.
[50 FR 50130, Dec. 6, 1985; 56 FR 36962, Aug. 1, 1991]
(a) General.
(1) The rules for determining whether disability continues for widow's or widower's monthly benefits for months after December 1990 are discussed in §§ 404.1594 through 404.1598. The rules for determining whether disability continues for monthly benefits for months prior to January 1991 are discussed in paragraph (a)(2) of this section and paragraphs (b) through (h) of this section.
(2) If you are entitled to disability benefits as a disabled widow, widower, or surviving divorced spouse, and we must decide whether your disability continued or ended for monthly benefits for months prior to January 1991, there are a number of factors we consider in deciding whether your disability continued. We must determine if there has been any medical improvement in your impairment(s) and, if so, whether this medical improvement is related to your ability to work. If your impairment(s) has not so medically improved, we must address whether one or more exceptions applies. If medical improvement related to your ability to work has not occurred and no exception applies, your benefits will continue. Even where medical improvement related to your ability to work has occurred or an exception applies, in most cases (see paragraph (e) of this section for exceptions) before we can find that you are no longer disabled, we must also show that your impairment(s), as shown by current medical evidence, is no longer deemed, under Appendix 1 of this subpart, sufficient to preclude you from engaging in gainful activity.
(b) Terms and definitions. There are several terms and definitions which are important to know in order to understand how we review your claim to determine whether your disability continues.
(1) Medical improvement. Medical improvement is any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled. A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings (see § 404.1528) associated with your impairment(s).
. . .
(f) Evaluation steps. To assure that disability reviews are carried out in a uniform manner, that decisions of continuing disability can be made in the most expeditious and administratively efficient way, and that any decisions to stop disability benefits are made objectively, neutrally and are fully documented, we will follow specific steps in reviewing the question of whether your disability continues. Our review may stop and benefits may be continued at any point if we determine there is sufficient evidence to find that you are still unable to engage in gainful activity. The steps are:
(1) Are you engaging in substantial gainful activity? If you are (and any applicable trial work period has been completed), we will find disability to have ended.
(2) If you are not, has there been medical improvement as defined in paragraph (b)(1) of this section? If there has been medical improvement as shown by a decrease in medical severity, see step (3). If there has been no decrease in medical severity, there has been no medical improvement. (see step (4).)
(3) If there has been medical improvement, we must determine (in accordance with paragraph (b)(2) of this section) whether it is related to your ability to work. If medical improvement is not related to your ability to do work, see step (4). If medical improvement is related to your ability to do work, see step (5).
(4) If we found at step (2) that there has been no medical improvement or if we found at step (3) that the medical improvement is not related to your ability to work, we consider whether any of the exceptions in paragraphs (d) and (e) of this section apply. If none of them apply, your disability will be found to continue. If one of the first group of exceptions to medical improvement (see paragraph (d) of this section) applies, we will proceed to step (5). If an exception from the second group of exceptions to medical improvement applies, your disability will be found to have ended. The second group of exceptions to medical improvement may be considered at any point in this process.
(5) If medical improvement is related to your ability to work or if one of the first group of exceptions to medical improvement applies, we will determine (considering all your impairments) whether the requirements of Appendix 1 of this subpart are met or equaled. If your impairment(s) meets or equals the requirements of Appendix 1 of this subpart, your disability will be found to continue. If not, your disability will be found to have ended.
[45 FR 55584, Aug. 20, 1980, as amended at 47 FR 12162, Mar. 22, 1982; 49 FR 22272, May 29, 1984; 50 FR 50126, Dec. 6, 1985; 51 FR 7063, Feb. 28, 1986; 51 FR 16015, April 30, 1986; 57 FR 30121, July 8, 1992; 59 FR 1635, Jan. 12, 1994]
Difford v. Secretary of Health and Human Services, 910 F.2d 1316 (6th Cir.1990), reh'g denied, February 7, 1991
ISSUE: Whether in deciding the appeal of a determination that an individual's disability has medically ceased, the adjudicator must consider the issue of the individual's disability through the date of the Secretary's final decision, rather than deciding the appeal based on the issue of continuing disability only through the date of the initial cessation determination.
STATUTE/REGULATION/RULING CITATION: Section 223(f) of the Social Security Act ( 42 U.S.C. 423(f)), 20 CFR 404.1579, 404.1589, 404.1590, 404.1594.
CIRCUIT:
Sixth (Kentucky, Michigan, Ohio, Tennessee)
Difford v. Secretary of Health and Human Services, 910 F.2d 1316 (6th Cir.1990), reh'g denied, February 7, 1991.
APPLICABILITY OF RULING: The court's holding affects only cases at the disability hearing/reconsideration, Administrative Law Judge and Appeals Council levels. Therefore, this Ruling applies only to determinations or decisions made at those levels.
DESCRIPTION OF CASE: On October 19, 1976, the plaintiff applied for disability benefits. It was determined that he was disabled effective April 2, 1976. In June 1982, he was notified of a proposal to terminate his benefits because current medical records showed that he was no longer disabled. Benefits were terminated as of August 31, 1982. The plaintiff's request for reconsideration was denied and he did not pursue any further appeal.
The plaintiff filed a new application on May 16, 1983. This application was denied initially and throughout the administrative review process, culminating in the Appeals Council denying the plaintiff's request for review on April 13, 1984. The plaintiff did not file any action in court to challenge the final decision of the Secretary.
In June 1984, the plaintiff obtained employment. On January 2, 1985, he injured his knee and back in an accident at work. He had surgery on his right knee in January 1985 and became unemployed.
Because the plaintiff was a member of the Holden class (Holden v. Heckler, 584 F.Supp. 463 (N.D.Ohio 1984), an Ohio class action which successfully challenged the Secretary's former policies and procedures used in continuing disability reviews), he received notice in February 1985 that he had the right to apply for reinstatement of his disability benefits and to have his claim reviewed under the appropriate medical improvement standard. He requested review of his case on March 19, 1985. The Secretary determined, both initially and on reconsideration, that the original termination decision was correct. On January 28, 1988, after considering only the evidence of the plaintiff's condition through June 1982, an Administrative Law Judge issued a decision finding that the plaintiff's disability had ceased as of June 1982 because his condition had medically improved. The Appeals Council denied the request for review. Accordingly, the Administrative Law Judge's decision became the final decision of the Secretary. The plaintiff then sought judicial review.
In affirming the Secretary's cessation decision, the district court noted that the plaintiff had worked for six months after it had been determined that his disability had ceased. The court found that the plaintiff's knee and arthritis impairments as of the time of the Administrative Law Judge hearing were a direct result of his 1985 job-related accident. Therefore, the court concluded that the relevant time frame for consideration of cessation of disability was 1976-1982. The plaintiff then appealed to the United States Court of Appeals for the Sixth Circuit.
HOLDING: The Sixth Circuit stated that the case turned "on the correct interpretation of certain provisions of § 2(a) of ... Pub.L. No. 98-460, 98 Stat. 1794 (1984), codified at 42 U.S.C. § 423(f), which sets the standard of review for termination of disability benefits." Those provisions, in relevant part, provide as follows:
A recipient of benefits under this title or title XVIII based on the disability of any individual may be determined not to be entitled to such benefits on the basis of a finding that the physical or mental impairment on the basis of which such benefits are provided has ceased, does not exist, or is not disabling only if such finding is supported by--
(1) substantial evidence which demonstrates that--
(A) there has been any medical improvement in the individual's impairment or combination of impairments (other than medical improvement which is not related to the individual's ability to work), and
(B) the individual is now able to engage in substantial gainful activity ...
Any determination under this section shall be made on the basis of all the evidence available in the individual's case file, including new evidence concerning the individual's prior or current condition which is presented by the individual or secured by the Secretary. (Emphasis added.)
The court held that:
the plain meaning of statutory references to "now" or "current" compels a consideration of an individual's ability to perform substantial gainful activity at the time of the hearing.... We note, however, that interpretation of § 423(f) to require assessment of Difford's condition as of the 1988 hearing does not preclude a finding by the Secretary that the length of time of Difford's employment ... is a period of non-disability for which benefits may be withheld.
910F.2d at 1320, emphasis added.
STATEMENT AS TO HOW DIFFORD DIFFERS FROM SOCIAL SECURITY POLICY: SSA interprets the term "current," as used in the statutory and regulatory language concerning termination of disability benefits, to relate to the time of the cessation under consideration in the initial determination of cessation. In making an initial determination that a claimant's disability has ceased, SSA considers the claimant's condition at the time SSA is making the initial determination. In deciding the appeal of that cessation determination, the Secretary considers what the claimant's condition was at the time of the cessation determination, not the claimant's condition at the time of the disability hearing/reconsideration determination, ALJ decision or Appeals Council decision. However, if the evidence indicates that the claimant's condition may have again become disabling subsequent to the cessation of his or her disability or that he or she has a new impairment, the adjudicator solicits a new application.
The Sixth Circuit Court of Appeals has found that, in reviewing a cessation determination, SSA must consider the claimant's condition through the date of the Secretary's final determination or decision.
EXPLANATION OF HOW SSA WILL APPLY THE DECISION WITHIN THE CIRCUIT: This Ruling applies to cases involving claimants who reside in Kentucky, Michigan, Ohio, or Tennessee at the time of the determination or decision at the disability hearing/reconsideration, the Administrative Law Judge or Appeals Council levels.
In making a determination or decision concerning whether or not an individual's disability has ceased, the disability hearing officer, Administrative Law Judge or Appeals Council may not limit consideration to the period of time ending with the date disability was initially determined to have ceased, but must also give consideration to the individual's ability to perform substantial gainful activity through the date on which the appeal determination or decision is being made.
The adjudicator will consider whether the initial cessation determination was correct. If the adjudicator determines that the initial cessation was correct, he or she will then consider whether the claimant has again become disabled at any time through the date of his or her determination or decision as a result of a worsening of an existing impairment or by the onset of a new impairment. If, on the other hand, the adjudicator determines that the initial cessation determination was not correct, the adjudicator will determine if the evidence establishes medical improvement as a basis for termination of benefits as of any time through the date of his or her determination or decision. In every case where it is established that the claimant was not continuously disabled through the date of the appeal determination, the adjudicator will fully explain the basis for the conclusions reached, and will state the month that the claimant's disability ended, and, if applicable, the month a new disability began and any intervening months of nondisability.
PURPOSE: To state the policy for developing medical evidence in a continuing disability investigation (CDI).
CITATIONS (AUTHORITY): Sections 216(i), 223(d), and 1614(a) of the Social Security Act, as amended; Regulations No. 4, Subpart P, sections 404.1513 and 404.1517; and Regulations No. 16, Subpart I, sections 416.913 and 416.917.
INTRODUCTION: This Program Policy Statement states the need to update the medical evidence at the time of a CDI to determine the current status of the beneficiary's impairment and indicates possible sources of this information.
POLICY STATEMENT:
Development of Medical Evidence
The development of medical evidence and the evidentiary requirements that apply in determining initial disability also apply in determining whether disability continues. However, the development of medical evidence in connection with a CDI is basically an updating process.
The medical evidence for determining continuing disability should consist of evidence which is sufficiently detailed as to signs, symptoms, and laboratory findings to enable a sound judgment to be made by an independent reviewer as to the individual's current condition. Detail is especially needed when the evidence indicates cessation of disability but the individual alleges inability to return to work due to the impairment or the treating physician has restricted work activity.
Medical Evidence of Record
If the individual has a current treatment source that source will always be requested to furnish reports of the most recent examination describing the individual's current medical condition. Depending upon the individual's clinical history, it may be necessary to develop the severity and duration of an impairment over an extended period of time. Some impairments, such as mental disorders, may have periods of exacerbation and remission which require the development of medical evidence earlier than one year before the date the CDI was initiated. However, in all cases, the Disability Determination Service (DDS) is required to make every effort to obtain all medical evidence of record (MER) from the treating physician and other medical sources that have treated the beneficiary within the past 12 months. The medical evidence should contain sufficient signs, symptoms, and laboratory findings to permit independent judgment for a sound determination of continuance or cessation.
Occasionally, the evidence from the treating source may not be sufficient to resolve the question of continuing disability. Nonetheless, the presence in file of reports from the individual's medical sources will better ensure that no pertinent evidence has been overlooked and thus ensure the soundest possible basis for making a disability determination. DDS efforts to obtain MER will always be documented.
Conflicts Between the Individual and the Medical Source
Ordinarily, the treating physician will tell the individual when his or her current medical condition permits a return to work. If, however, the individual states that the physician advised against return to work or the individual feels unable to work because of the impairment, but the medical evidence received from the treating physician indicates that the beneficiary is not disabled, the conflict must be resolved. If the treating physician's position is supported by conclusive objective medical evidence, a consultative examination is not required. However, if the conflict raises a substantive medical question and the treating physician's position is not fully documented as to signs, symptoms, and laboratory findings, a consultative examination by an independent medical source will be arranged before a determination is made.
Consultative Examinations
In addition to the resolution of conflict situations, a consultative examination will be obtained when evidence of record concerning the individual's condition is not available, is equivocal, or is not sufficiently detailed in terms of signs, symptoms, and laboratory findings to enable a sound independent judgment to be made.
Documentation
An unsigned report may be used to establish a favorable determination and a continuance may be processed pending confirmation by a signed report. However, medical evidence used to establish that the individual is not disabled must be in writing and signed by the source of the information.
The source will be properly identified. An exception can be made when a signed, written report was previously received during the current investigation and it is necessary only to confirm or clarify some detail by telephone. In this situation, a report of telephone conversation is sufficient.
Vocational Rehabilitation Agency
When an individual is known to a State Vocational Rehabilitation (VR) Agency at the time of the continuing disability investigation, the agency will be contacted for a full report about the individual including medical reports relating to the individual's current medical status and other data pertinent to a determination. If data previously obtained from the agency (e.g., in connection with the initial adjudication) indicated that the case was closed and the individual states that the case has not been reopened, a further contact with VR will not be made. Evidence secured from the treating source and evidence available through the VR agency may be sufficient to permit a sound determination as to whether disability continues.
In no instance will a clear-cut cessation (i.e., cessation without current medical development on the basis medical recovery is indicated by return to full-time work without medical restrictions) be made where VR services are continuing since participation in VR constitutes "evidence to the contrary." Medical recovery may normally be found when current medical evidence establishes a present capacity for engaging in substantial gainful activity. When the medical evidence establishes such capacity, cessation will be found despite the fact that the individual may be an active participant in a State-sponsored vocational rehabilitation program.
Example:
Claimant was determined to be disabled because of multiple fractures and complications which indicated the disability condition would meet the 12-month duration requirement. When the medical reexamination diary came due, the CDI disclosed that the individual was enrolled in a 2-year bookkeeping course under a State-sponsored VR program. The State agency adjudicator obtained evidence from the VR, which stated that one year of schooling remains. The Social Security Administration then obtained current medical evidence which clearly established medical recovery. Therefore, a determination of cessation was made.
Drug Addiction and Alcoholism
Any drug addiction and alcoholism (DA and A) case in which a CDI is initiated will be developed under the basic guides which apply to any other CDI. Specifically, documentation should include the following: (1) The Report of Continuing Disability Interview; and (2) contact with the current treating sources, including the DA and A treatment facility. Documentation will be obtained for individuals who are currently in a treatment program (e.g., methadone maintenance, therapeutic treatment facility, etc.) as well as for those who have completed treatment or are otherwise reported out of treatment.
In conversion cases involving drug addicts or alcoholics, when the State welfare agency medical records and evidence used in making the original disability determinations are unavailable, the issue of whether an individual is presently disabled on the basis of current medical and nonmedical evidence will be resolved.
Contact with the treatment facility will elicit the following information: (1) overall current manifestations of the drug addiction or alcoholism. (e.g., inability to relate to others, specific restrictions of daily activities); (2) an assessment of the present course of treatment and the need for continued treatment as well as the prognosis with or without continued treatment; and (3) a statement of functional ability and the reasons for any continuing loss of functional ability.
Note: Individuals who have been participating in a methadone maintenance program (or any other DA and A treatment program) and who continue to participate in such a program do not, simply by virtue of participating in such treatment, necessarily continue to meet the disability criteria under either Federal or State plan criteria. Evaluation of continuing disability must take into consideration whether the individual is well maintained on such treatment and has the current ability to function.
The need to order a consultative examination will depend on the information received from the recipient and the evidence obtained from the treating sources. When the evidence is equivocal or does not provide a sound basis for evaluation, a consultative examination will be obtained. (See SSR 82-60 (PPS-83: Evaluation of Drug Addiction and Alcoholism).)
EFFECTIVE DATE: The policies covered by this Program Policy Statement have been in effect for many years except for the 12-month requirement for obtaining medical evidence of record. This 12-month requirement became effective in May 1982.
CROSS-REFERENCE: Program Operations Manual System Part 4, Chapter II.
. . .
Age-18 Redeterminations
Pub. L. 104-193, as amended by Pub. L. 105-33, requires all SSI childhood disability beneficiaries who were eligible as children in the month before the month in which they attained age 18 to have their eligibility redetermined under the adult standards for initial claims either during the 1-year period beginning on the individual's 18th birthday, or in lieu of a continuing disability review, whenever the Commissioner determines that an individual's case is subject to redetermination. These disability redeterminations will be done using the adult disability criteria for initial claims except for the first step of sequential evaluation, SGA. The medical improvement review standard (MIRS) does not apply. Individuals who are dissatisfied with the results of the age-18 redetermination may appeal the reconsidered determination to the ALJ hearing level and the hearing decision or dismissal to the AC level.
. . .
(Use on Form SSA-L8052-U2)
This notice concerns your continuing eligibility to supplemental security
income payments.
We have reviewed the evidence and find that you are still disabled. As a
result of our review, it has been determined that you now meet the
disability requirements of the law due to a disabling condition other than
(drug addiction) (alcoholism) (1)
Therefore, you are not required to receive treatment for (drug addiction)
(alcoholism) (1) . Your payments will be sent directly to you if you are
able to manage your own money.
Your claim will be reviewed from time to time to see if you are eligible
for benefits based on disability or blindness. When your claim is reviewed,
you will be contacted if there is any question as to whether your
eligibility continues.
NOTE: Include any appropriate language from blocks 1 through 4 of the
SSA-L1014. Also include the language from the reverse of the SSA-L1014.
Enclosure: SSA Pub. No. 05-11011
(1) Use term that applies.
Option: The DDS may type the second and third paragraphs on the bottom of
an SSA-L1014 if desired. Omit the first sentence of the second paragraph if
the SSA-L1014 is used.
[ DDS POMS ]
DI 31510.025
(Use on Form SSA-L8052-U2)
This notice concerns your continuing eligibility to supplemental security
income payments.
We have reviewed the evidence and find that you are still disabled and that
(drug addiction) (alcoholism) (1) continues to contribute to your
disability. The law requires that a person whose disability is determined
to be related to (drug addiction) (alcoholism) (1) must receive his/her
supplemental security income payments through another person and must
undergo any appropriate available treatment for his/her condition.
Therefore, you will continue to receive your payments through another
person, and you must continue to undergo appropriate, available treatment.
Since your condition may improve, we have scheduled a review of your case
for (show month and year of reexam diary). You will be contacted at that
time.
A review of your disability status may also be necessary if you return to
work. In addition, any change which may affect your eligibility or payment
amount under any of the other requirements of the law could require a
review of your case. The enclosed pamphlet describes all the events which
would affect your continuing eligibility for or amount of benefits and
which must be reported. Should any of these events occur, it is important
that the Social Security Administration be notified immediately.
NOTE: Include appeals language from DI 31510.035.
Enclosure: SSA Pub. No. 05-11011
(1) Use term that applies.
[ DDS POMS ]
DI 31510.030
After deciding that an individual is disabled, SSA has an obligation to
evaluate the impairment to determine whether or not the disability
continues. To fulfill this obligation, SSA will conduct a continuing
disability review (CDR). When a review is scheduled, the individual is
notified, offered the opportunity to submit medical or other evidence
regarding his/her health, and informed that the review could result in
the termination of benefits. If evidence obtained in the review indicates
benefits should be stopped, the individual is notified of the decision in
writing and given an opportunity to appeal. During the review, every
effort is made to develop complete information on the individual's
impairment and/or work activity. If an individual is found not to meet
the disability criteria of the law, SSA must suspend or terminate benefits
/payments and freeze period entitlement.
[ DDS POMS ]
DI 13001.005
Citations
Social Security Act -- Section 222(c)(1)-(4), 223(a)(1)(D),
223(e),223(d)(4)
Regulations -- 20 CFR 404.1571- 404.1575, 404.1584- 404.1585, 404.1592,
404.1592a, 404.1576
A. INTRODUCTION
Work done in a period during which an individual alleges disability may
show that the person has used all or part of the trial work period (TWP) and
/or has demonstrated the ability to perform substantial gainful activity
(SGA). The processsing centers (PC's) review and process these TWP/SGA
determinations, prepare development requests, and make determinations not
completed by the field offices (FO's).
B. POLICY - JURISDICTION AND RESPONSIBILITIES
1. FO
The FO:
a. Develops continuing disability work issues, prepares
determinations, and refers cases to the DDS after conducting a personal
interview when a continuing disability medical issue exists.
b. Assures that the individual understands that a continuing disability
review (CDR) may result in benefits being stopped and that the
individual has the opportunity to submit any evidence bearing on a
determination.
c. Maintains jurisdiction for the adjudication of the following types of
work issue cases:
o title II (except age 55 or older statutory blind)
o title XVI (disability-not title XVI blindness cases)
o concurrent title II/title XVI
o dual-entitlement
d. Is responsible for:
o documenting the folder concerning the evidence or action
o providing due process
o preparing the appropriate notice(s)
o developing evidence to establish or disprove a suspicion of fraud.
2. PC
The PC:
a. Screens and processes work activity alerts produced by the Continuing
Disability Review Enforcement Operation (CDREO).
b. Records TWP history and maintains TWP diaries for title II cases on the
master beneficiary record (MBR) via the automated continuing
investigation of disability (ACID) system.
c. Performs a medical folder review (MFR) when an individual is expected to
complete or has completed the TWP in title II cases, and in certain
title XVI only and concurrent title II/title XVI cases.
d. Requests FO development, and initiates development via direct contact
and documents the folder concerning the evidence or action.
e. Prepares determinations, affords due process and issues
appropriate notices for age 55 or older statutory blind cases and for
title II only and the title II portion of concurrent title II/title XVI
cases not completed by the FO.
f. Maintains jurisdiction for the adjudication of age 55 or older title II
statutory blind work issue cases.
g. Is responsible for:
o Alerting the FO during development when the file indicates potential
suicidal/homicidal behavior.
o Initiating, controlling, and taking followup action on direct contact and
FO assisted development requests.
o Reviewing a determination at the FO's request and either requesting
additional development or processing the case to completion.
C. POLICY - PC REVIEW
1. Finality of a Determination
a. The PC must avoid substitution of judgment in the review. Additional
development or change in a determination will be undertaken only when:
o the evidence is insufficient to support the decision, or
o the decision is clearly contraindicated by the evidence, or
o a specific procedural or technical requirement has not been met.
b. An initial determination remains final unless it is appealed or reopened
and revised under the rules of administrative finality in DI 12045.105
and DI 13010.125).
2. Suicide /Homicide
During the review of CDR work issue cases, PC's will identify and flag
cases in which there is evidence of potential for suicidal/homicidal
behavior (See DI 40505.001D for instructions).
D. PROCEDURE - DUAL/MULTIPLE ENTITLEMENT INVOLVED
1. Related Folders In Same PC - FO Development Needed
For related folders in the same PC:
Associate folders before FO development is undertaken.
2. Related Folders Not In Same PC And Action Needed In FO
For related folder(s) not in the same PC:
Have the FO obtain the related folder(s).
3. Action Needed In PC Only
The PC that maintains the folder on which the primary payment is being made
must secure both folders and take the necessary action(s).
4. Annotating Development/Routing Forms
a. Note all multiple entitlements on all development and routing forms.
b. Use the Disability Review Section (DRS) addresses in DI 32015.010B.4.
when sending folders to and/or requesting action from the program
service center (PSC).
E. WHEN TO USE
The following forms are used in CDR work cases:
1. (Continuing Disability Review)
Use the to record a finding that a person is currently disabled
based upon established screening criteria and to record other events that
do not affect or do not immediately affect entitlement, i.e., work during
the TWP.
NOTE: The is not an initial determination, i.e., not subject
to the rules of administrative finality.
2. (Report Of Work Activity - Continuing Disability)
Use the to make direct (mail) contact with an employed
beneficiary or the representative payee to get details of a voluntary
report of work or an explanation of CDREO postings.
3. /SSA-5530-U2 (Report of Contact)
Use the /SSA-5530-U2 to record information obtained through direct
(telephone) contact (See GN 01070.001ff)
4. (Request for Assistance - Disability)
Use the to develop work and earnings information through the
FO.
5. (Trial Work Period Tally Sheet)
Use the as a tool to help summarize work activity to determine
expiration of the TWP and the extended period of eligibility (EPE).
6. Form (CDR Coding Sheet)
Use the to enter TWP data into the Disability Investigation (DIB
INV) field and medical disability data into the Periodic Review (PRV) field
of the master beneficiary record (MBR) via the Automated Continuing
Investigation of Disability (ACID) system per SM 00625.008ff.
NOTE: If the MBR already contains termination information for the
beneficiary, ACID cannot be updated for that beneficiary.
7. (Diary And Listing Slip)
Use the to prepare a manual diary and/or a listing. (See DI
41501.020ff.)
F. GLOSSARY OF TERMS
Term Explanation
ACID Automated Continuing Investigation of
Disability
CDREO Continuing Disability Review Enforcement
Operation
CDIE Continuing Disability Investigation Ending
(Date)
CDIO Continuing Disability Investigation
Origination (Date)
CDR Continuing Disability Review
COM Current Operating Month
Concurrent Entitlement Simultaneous title II and title XVI
entitlement
Currently Disabled Term used when a set of screening criteria
establishes that an individual continues to
have a disabling impairment for purposes of
eligibility to the EPE and certain other
work incentive benefits
DEQY Detailed Earnings Query
Determination / initial and
reconsideration determinations.
DIB INV Disability Insurance Benefit Investigation
Data
DID Disability Investigation Data
Direct Contact ODIO/PSC-DRS development via mail or
telephone
DOEC Date of Entitlement Current
Dual/Multiple Entitlement Entitlement to more than one type of benefit
under the same title, e.g., RIB/DIB, DIB/
DWB, DIB/CDB.
EPE Extended Period of Eligibility-period after
the TWP during which cash benefits are paid
for months of below SGA earnings
EPE Suspension Months of non-payment during the EPE due to
SGA level earnings
Extended Medicare Twenty-four months of extended eligibility
for Medicare coverage beginning at a
specific point after disability has ceased
due to SGA
Impairment Severity DDS medical determination for
determining whether an individual continues
to have a disabling impairment after
disability ceased due to SGA
I & R Income and resources (Term used for test
that applies to title XVI cases)
MBR Master Beneficiary Record
MQGE Medicare For Qualified Government Employee
NAN No Action Necessary
NH Number Holder
PWAE Prior Work Activity End (Date)
PWAS Prior Work Activity Start (Date)
RDI Reason for Disability Investigation
SALT Suspension and Life Termination
SEQY Summary Earnings Query
SGA Substantial Gainful Activity
SGA Cessation Decision/determination that disability
ceased due to demonstrated ability to
perform SGA based on established guidelines
SSI-2 Title XVI systems query
TWP Trial Work Period
TWPS Trial Work Period Start (Date)
1619 A title XVI work incentive provision
established to provide income and medical
protection for individuals who return to
work after entitlement to disability.
DI 40510.010
DEVELOPING WORK ACTIVITY
A. Introduction
Individuals receiving disability benefits must continue to meet the
disability requirements of the law. To ensure this, SSA conducts continuing
disability reviews (CDRs).
B. Policy Principles
1. PERIODIC REVIEW
Under the law, all disability beneficiaries must be reviewed at least once
every three years, unless they are permanently disabled.
Permanently disabled beneficiaries must be reviewed on a schedule
determined to be appropriate by the Secretary.
2. FREQUENCY OF
REVIEW
The frequency of scheduled review is determined by the likelihood of
improvement of the impairment(s).
a. Medical Improvement Expected (MIE) Cases
Scheduled for review when improvement is expected. MIE diaries are set
to mature 6-24 months following the most recent decision.
b. Medical Improvement Possible (MIP) Cases
Reviewed at least every 3 years. MIP diaries are set for 3 years from
the most recent medical decision.
c. Medical Improvement Not Expected (MINE) Cases (permanent impairments)
Reviewed at least every 7 years, but no more often than every 5 years.
MINE diaries are set for 7 years from the most recent decision.
3. MEDICAL IMPROVEMENT REVIEW
STANDARD (MIRS)
Under the law, a disability beneficiary is found no longer disabled only if
the evidence shows both:
a. Medical improvement (MI) related to the ability to work (or an exception
to MI); and,
b. Ability to engage in SGA . (Some of the exceptions to MI do not require
a finding of ability to engage in SGA.)
See DI 28005.001ff - DI 28020.001ff for discussion of the MIRS and the
exceptions to MI.
4. ADMINISTRATIVE
FINALITY
A final decision remains final unless it is reopened under the rules of
administrative finality. If a medical or work issue casts doubt on the
correctness of a prior determination, the actions which must be taken are
guided by the rules of administrative finality - see DI 27505.001ff, and DI
13010.125 (work-issue reopenings).
[ DDS POMS ]
DI 40501.005
Date: Ocxtober 20, 1995
RETENTION DATE: November 1, 1996
CONTACT: John Bryan PHONE: (410) 966-2352
AUDIENCE : ODO: ALL EMPLOYEES
OIO: BET, FDE, FDEC, RECONE
OMS: FA, FC, LFC, LMC, MC
REFERENCE : POMS GN 04440.00ff
ACTION NOTE: Obsolete the following General Series Program
Circulars: 87-315, 89-188, 90-331, 93-360, 94-188 and
95-144
Effective immediately ODIO will discontinue preeffectuation review of
continuing disability review continuances prepared by the DDSs.
Continuing disability review continuances received in the modules
should have any unreleased notices date stamped and released. Prior
to releasing the notice, make certain that the correct envelope is
being used by the DDS. The correct envelope contains NO indicia stamp
and ODIO's return address with Zip Code 21241.
The SSA-832/833 shoul