The Continuing Disability Evaluation Process
Your Social Security disability benefits cannot be terminated unless (with various exceptions) there is substantial evidence that your medical condition has improved and you are now able to engage in Substantial Gainful Activity (SGA).
The evaluation of your medical improvement is accomplished by an eight-step sequential process for Title II that begins (like the five-step sequential evaluation process for initial claims) with “Are you engaging in substantial gainful activity?” In SSI continuing disability review cases, there are only seven steps because the issue of engaging in substantial gainful activity is not included.
The second step of the Title II sequential evaluation process (the first step for SSI) addresses whether your impairments meet or equal an impairment found in the current Listing of Impairments. This is actually a shortcut that allows the Social Security Administration to avoid the issue of whether there has been medical improvement. At this step the Social Security Administration evaluates all impairments, including impairments that arose after the individual was originally found disabled.
It is only after the Social Security Administration addresses whether all current impairments meet or equal the current Listings that it addresses the issue of medical improvement. The medical improvement standard generally requires that there be evidence that (1) there has been medical improvement of your impairments, (2) the medical improvement is related to your ability to work and (3) you are now able to engage in substantial gainful activity.
In order to determine if you are capable of engaging in Substantial Gainful Activity, the sequential evaluation process looks very similar to the sequential evaluation process for initial disability determinations except that the step considering whether all your impairments meet or equal the Listings has already been addressed.
Schedule of Continuing Disability Reviews
Although SSA doesn’t always hold to this schedule, for most people the eligibility for Social Security disability benefits is supposed to be reviewed every three years. These investigations are called “Continuing Disability Reviews” or CDRs.
People with permanent impairments such as amputations or retardation are subject to review every seven years. Claimants with impairments such as fractures that are likely to improve may be scheduled for review within 6 to 18 months of approval of the claim.
Safeguards Against Termination of Eligibility for Disability Benefits
There is no presumption of continuing disability. The statute for Continuing Disability Reviews says:
Any determination made under this section shall be made on the basis of the weight of the evidence and on a neutral basis with regard to the individual’s condition, without any initial inference as to the presence or absence of disability being drawn from the fact that the individual has previously been determined to be disabled.
Because the status can change, Continuing Disability Reviews strike fear in the hearts of disability benefit recipients. However, more than 90 percent of reviews find that the recipient’s disability continues.
Social Security Disability law provided three important safeguards for you: (1) benefit continuation pending appeal; (2) face-to-face reconsideration hearings; and (3) the medical improvement standard.
However, since then Congress has sought ways to encourage those who still qualify for disability benefits to return to work, passing various work incentive legislation, while at the same time urging the Social Security Administration to remove from the disability rolls those who no longer qualify as disabled or worse, those who never should have been found disabled in the first place. The result is a complicated patchwork of incentives and disincentives for beneficiaries to work.
Perhaps as important as anything is that you cooperate with the Social Security Administration because you are required to provide information or attend consultative examinations if requested. Non-cooperation alone can be the basis for finding that disability ended.
Benefit Continuation Pending Appeal
If your eligibility for disability benefits is terminated after a Continuing Disability Review, benefits will usually cease two months after you are sent a cessation notice.
The notice will inform you that you have 60 days to request reconsideration of the decision to terminate benefits. But reconsideration must be requested within 10 days of receiving the termination notice if you want benefits to continue pending the reconsideration determination. Since the Social Security Administration presumes that you receive Social Security notices 5 days after the notices are dated, this means that you have 15 days from the date on the face of the cessation notice to file a request for reconsideration along with a request for continuation of benefits. If you elect to receive continuing benefits, Medicare and Medicaid as well as auxiliary benefits for your children and spouse, if any, will also continue pending the reconsideration determination.
If the request for benefit continuation is filed too late then the Social Security Administration will determine whether good cause exists for failure to timely request benefit continuation.
Similarly, if you receive a reconsideration determination affirming the cessation of benefits, the reconsideration notice will inform you of the right to request an ALJ hearing within 60 days, but if you want benefits continued pending the ALJ decision, a hearing must be requested within 10 days of receiving the reconsideration determination. If you request continued benefits pending an ALJ decision but did not request continuing benefits while the Social Security Administration reconsidered the initial cessation determination, Social Security disability benefits will begin effective the month of the reconsideration determination.
The Social Security Administration takes the position that if Social Security disability benefits are terminated due to your performance of substantial gainful activity (as opposed to a determination that the impairments are no longer disabling or never were disabling), it will not continue benefits during appeal. However, benefits will be continued in SSI and concurrent cases even if termination is due to performance of Substantial Gainful Activity.
If continued benefits are received during an appeal which ultimately proves unsuccessful, the Social Security Administration says that it will ask for repayment of the continued benefits. However, the Social Security Administration says that waiver of repayment of the overpayment will be considered as long as the determination was appealed in good faith. In practice, waivers are freely granted since a recipient who appeals in good faith is without fault and such a recipient usually cannot afford to repay the overpaid benefits.
Face-to-Face Reconsideration Hearings
In cessation cases, you are allowed a face-to-face reconsideration hearing with a disability examiner, usually held at a local Social Security office.
The disability examiners are not ALJs. They are state agency employees responsible for determining eligibility at the initial and reconsideration levels. Examiners do not need to be attorneys.
Face-to-face reconsideration hearings are generally less formal than ALJ hearings. However, procedural rights such as representation, issuance of subpoenas, presentation of witnesses, submission of new evidence, and so forth are available. If you waive the right to appear at the hearing, the disability examiner will issue a written reconsideration determination based on the information in the case file.
Determination Is Based on Your Current Condition
To make an initial medical improvement determination, the Social Security Administration compares two points in time: the “current” date and the date of the most recent prior decision finding that you were disabled.
Adjudicators are supposed to assess the case based only on your current condition (with certain exceptions). Thus, they are not concerned with figuring out if you have been continuously disabled. Instead, they are allowed to ignore evidence that there may have been a time when you was receiving benefits but may not have been disabled.
If there has been medical improvement, then the Social Security Administration does not concern itself with determining if medical improvement could possibly have occurred earlier. It simply finds that your disability ended at the time of evaluation. The cessation date is the date of the notice informing you that you are no longer disabled.
Is There Medical Improvement?
“Medical improvement” means “any decrease in the medical severity of your impairment(s).”
The decision that there has been a decrease in medical severity “must be based on changes (improvement) in the symptoms, signs and/or laboratory findings ... associated with your impairment(s).”
The Social Security Administration will consider only the impairments that had at the time of the most recent favorable decision, and will not consider those impairments that developed since that time. (Newly developed impairments are considered before the issue of medical improvement is addressed and are also considered at a later step in the analysis.)
Medical improvement must be more than minor.
Also, if the impairment is subject to temporary remission, a temporary improvement will not warrant a finding of medical improvement.
Is Medical Improvement Related to Ability to Work?
Once the Social Security Administration has decided that medical improvement has occurred, it will then determine whether the improvement is related to ability to work.
To make this determination, it compares your residual functional capacity (RFC) at the time of the most recent favorable decision with a current RFC based on only those impairments that were present at the time eligibility was most recently approved.
You can imagine the difficulties in comparing, for example, the RFC of a person found disabled years ago due to a back impairment, subsequently develops diabetes with neuropathy in his feet and legs and now has arthritis in one knee as well. In the meantime, however, the range of motion in his back has improved. By looking at the back alone, one might find an improved RFC. And that is what state agency adjudicators are supposed to do at this step; but then they come back again later in the analysis to evaluate the RFC when considering all impairments.
If no medical improvement is found or medical improvement is found not related to ability to work, the inquiry stops and the disability is found to continue as long as none of the exceptions to medical improvement applies.
Exceptions to Medical Improvement
If no medical improvement is found or medical improvement is found not related to ability to work, the decision maker must look to see if any exception to medical improvement applies. There are two groups of exceptions.
First Group of Exceptions
The regulations say that:
These exceptions to medical improvement are intended to provide a way of finding that a person is no longer disabled in those limited situations where, even though there has been no decrease in severity of the impairment(s), evidence shows that the person should no longer be considered disabled or never should have been considered disabled.
If one of the first group of exceptions applies, instead of finding that disability continues, SSA continues with the CDR sequential evaluation process to determine if the recipient is capable of engaging in substantial gainful activity.
The first group of exceptions in the Social Security disability regulations contains five specific items:
- where advances in medical or vocational therapy or technology increases a recipient’s ability to work;
- the individual has completed vocational therapy;
- on the basis of new and improved diagnostic techniques, the individual’s impairment is determined not to be as disabling as it was considered to be at the time of the most recent prior favorable decision;
- where the prior decision granting benefits was clearly an error; and
- where the recipient is working at the substantial gainful activity level.
Advances in Medical or Vocational Therapy
It is hard to determine the applicability of the exception that applies to advances in medical or vocational therapy or technology that increase your ability to work. In fact, the Social Security Administration has acknowledged in the regulation itself that this exception has very limited application.
Before this exception may be applied, the state agency is required to submit an explanation to the Regional Office Center for Disability, which undoubtedly discourages its use.
This exception dealing with the completion of vocational therapy has many exceptions and qualifications.
For example, the vocational school has to prepare you for a specific type of job. Broad general education such as a technical school associate degree in business does not qualify because a “broad, general training program does not significantly affect [a recipient’s] ability to transfer directly to skilled work.”
New or Improved Diagnostic or Evaluative Techniques Show Impairments Not as Disabling as They Were Considered to Be
When substantial evidence shows that based on new or improved diagnostic or evaluative techniques your impairments are not as disabling as they were considered to be at the time of the most recent favorable decision, the Social Security Administration requires that the new or improved diagnostic or evaluation techniques “must have become generally available after the date of our most recent favorable medical decision.”
However, the list of new or improved diagnostic or evaluative techniques does not contain anything new since October 1984.
Prior Decision Was Wrong
A prior determination that you were disabled will be found in error only if:
- substantial evidence shows on its face that the prior determination should not have been made;
- crucial evidence, which was missing at the time of the prior evaluation, becomes available and shows that had it been available at the time of the earlier determination, the finding of disability would not have been made; or
- substantial new evidence refutes the conclusions that were based on the prior evidence.
Second Group of Exceptions
If one of the second group of exceptions applies, benefits are terminated without further inquiry. That is, there is no inquiry whether you can now engage in substantial gainful activity.
This second group of exceptions includes the following situations:
- The favorable decision was obtained by fraud.
- You fail to cooperate with the Social Security Administration (by, for example, refusing to provide requested information or failing to attend a consultative examination).
- The Social Security Administration cannot locate you.
- You fail without good cause to follow prescribed treatment that would be expected to restore the ability to work.
When Medical Improvement Is Found Related to Ability to Work
If medical improvement is found to be related to your ability to work, the inquiry does not stop. The severity of all current impairments must be analyzed, including those that may not last 12 months. Residual functional capacity must be assessed based on all current impairments, and the issue whether or not you are capable of past relevant work must be addressed. However, past relevant work does not include any job you performed during the current period of entitlement. Past relevant work includes only those jobs performed in the 15 years prior to adjudication. If you cannot perform past relevant work, then it must be considered whether you, considering age, education and work experience, can do other work.
In short, after considering whether there is medical improvement and whether it is related to ability to work, the analysis turns to the last two steps of the Continuing Disability Review process, which are identical to the last two steps of the five-step sequential evaluation process for determining initial entitlement to disability benefits.
As with the sequential evaluation process for determining initial entitlement to disability benefits, a proper determination of residual functional capacity is essential. Many impairment-related factors must be considered in assessing your functional capacity for basic work activities. Age is one key factor. Medical literature shows that there is a gradual decrease in organ function with age. Studies have also shown that the longer an individual is away from the workplace and is inactive, the more difficult it becomes to return to ongoing gainful employment. In addition, a gradual change occurs in most jobs so that after about 15 years, it is no longer realistic to expect that skills and abilities acquired in these jobs will continue to apply to the current workplace. Thus, if you are age 50 or over and have been receiving disability benefits for a considerable period of time, this factor will be considered along with your age in assessing your residual functional capacity.
If disability is found to continue after applying the medical improvement standard’s sequential evaluation process, the Social Security Administration will then apply additional steps in some cases to evaluate whether drug addiction or alcoholism is a contributing factor material to the finding of disability. The test is whether the recipient would still be disabled if he or she stopped using drugs or alcohol.
Cessation of Benefits Because of Performance of Substantial Gainful Activity
The principles of cessation of benefits because of performance of substantial gainful activity are easy to state: When you return to work and perform substantial gainful activity, benefits will stop. Whether benefits stop right away or after completion of a nine-month trial work period, and whether benefits will resume again if you stop performing substantial gainful activity depends on whether the Social Security Administration finds that you medically improved to the point that you are no longer disabled.
However, the regulations are confusing.
The possibility of cessation of benefits based on performance of substantial gainful activity appears as step one of the Continuing Disability Review sequential evaluation process. However, there are exceptions, and you get to the first group of exceptions only after it is determined that your impairment either did not improve or the medical improvement was not related to the recipient’s ability to work. Since this is a sequential evaluation process, why do we need an exception that calls for benefits to stop because of working even when there is no medical improvement?
If you are working but did not medically improve, an exception provides that even though you are is still disabled, benefits may be stopped for performance of substantial gainful activity after completion of any applicable trial work period.
Thus, one regulation provides the basis for skipping step one of the sequential continuing disability review process and another regulation provides the basis for stopping benefits for someone who continues to be disabled after completion of the trial work period and is therefore eligible for a reentitlement period.
Are You Eligible for a Trial Work Period?
If you are receiving disability insurance benefits you are generally entitled to a trial work period. That is, you are eligible to test your ability to return to work for nine months, not necessarily consecutive, during which time full benefits continue.
However, the general rule is that if your impairment is not expected to improve, the Social Security Administration will not conduct a continuing disability review until the completion of the nine-month trial work period. Furthermore, the regulations recognize some possibilities for a recipient not being entitled to a full nine-month trial work period.
First, if your impairment was expected to improve and you return to work with no significant medical limitations and acknowledges to the Social Security Administration that medical improvement has occurred, the Social Security Administration may find that your disability ended in the month you returned to work. Thus, you are not entitled to a nine-month trial work period.
Second, a trial work period can end when “new evidence, other than evidence relating to any work you did during the trial work period, shows that you are not disabled” even though the full nine-month trial work period has not been completed.
It is also possible for a recipient to use up the trial work period more or less without noticing. Recipients who have done some part-time work, as so many do these days while waiting for a hearing to be held, may find that although the work was well below the substantial gainful activity level, it counts for trial work. After the date of application and after the five-month waiting period, any month in which you earn over a certain amount constituting “services” for trial work period purposes, qualifies as a trial work period month, even if those months of work are also determined to be unsuccessful work attempts and even if your income did not constitute substantial gainful activity.
If you are self-employed, whether work constitutes “services” is determined by looking at both income and the number of hours worked. If income exceeds the “services” amount used for recipients employed by other people, then the work for that month constitutes “services.” But even if you do not earn this much, as long as you are working enough hours in a month, the month counts as a services month.
Once you perform “services” for 9 months in what the Social Security Administration calls a rolling 60-month period, the trial work period is used up. To determine whether the 9 months of work fall within the 60-month rolling period, take the last month that qualifies as a services month and count backward in time for 60 months. If during that 60-month period there are 9 months of trial work, the trial work period ends.
Although you are entitled to only one trial work period during a period of disability, you can actually have more than nine months of trial work if the months are spaced widely enough apart so that nine of them do not fall in any 60-month period.
Will the Social Security Administration Conduct a Medical Review During a Trial Work Period?
A trial work period ends after you perform services in nine months during a rolling period of 60 months. But it can also end earlier. It can end the month in which new evidence shows that you are not disabled, even though you have not worked a full 9 months.
However, in order for the trial work period to end and benefits to be terminated before the nine months of trial work are used up, the Social Security Administration must have new evidence of improvement other than evidence relating to the work you have done. This provision is meant as a work incentive. It is the Social Security Administration’s way of providing that the work itself won’t be used against you.
For the Social Security Administration to discover new evidence of improvement, it must conduct a continuing disability review. In fact, return to work is a trigger for a continuing disability review. The Social Security Administration will start a continuing disability review under the following circumstances:
Substantial earnings are reported to your wage record;
You tell the Social Security Administration that you have returned to work;
Your State Vocational Rehabilitation Agency tells the Social Security Administration that you are now working;
Someone in a position to know of your physical or mental condition tells the Social Security Administration that you have returned to work.
Although the Social Security Administration provides the trial work period as an incentive for recipients to return to work, the specter of a continuing disability review operates as a distinct disincentive for return to work.
In order to increase the incentive for returning to work, there is an exception for those who have received disability benefits for at least 24 months. For such recipients the Social Security Administration will not start a medical continuing disability review based solely on a report of work activity.
Nevertheless, although recipients of disability benefits who have received benefits for 24 months are protected from the Social Security Administration initiating a continuing disability review solely because of work activity, such recipients are subject to regularly scheduled medical CDRs and medical CDRs that are initiated for other reasons.
If the Social Security Administration erroneously starts a medical continuing disability review solely because of work activity for a recipient who received 24 months of benefits, the Social Security Administration will vacate any medical cessation determination as long as it receives information about its error within 12 months of the date of the cessation determination.
The Social Security Administration also says that for those recipients who have received benefits for 24 months, it will not consider the activities performed in the work done by the recipient during the current period of entitlement based on disability if the activities support a finding that disability has ended. But the Social Security Administration will consider the work activities if they support a conclusion that disability continues. For those not subject to protection from continuing review because they have received benefits for 24 months, at the conclusion of the trial work period, SSA will consider whether the work performed during the trial work period shows that the disability has ended.
Evaluation After a Trial Work Period
Consider this example:
A recipient with a high school education and a medium unskilled work background who was 49 when he was found disabled returns to work at a full-time sedentary job with earnings above the substantial gainful activity level. He works for 11 months by the time SSA evaluates his case. The rule is that after the 9-month trial work period is over, monthly benefits will end when the claimant performs substantial gainful activity. Since our hypothetical claimant is performing Substantial Gainful Activity in the tenth month of work, the tenth month of work is the month disability is found to have ceased. He is paid for that month and the next two months.
The Social Security Administration refers to this as finding that “disability ceased.” This is not a finding that the claimant no longer has a disabling impairment or that the claimant has medically improved. It is a finding only that the claimant is engaging in Substantial Gainful Activity after the end of the trial work period.
After working for 9 months, disability ends because of performance of substantial gainful activity pursuant to step one of the CDR process.
For someone who has not yet received 24 months of benefits, the Social Security Administration still has to determine whether or not the person continues to meet the “disability requirements of the law” (that is, whether there has been medical improvement).
But if you have already received 24 months of benefits by the time the continuing disability review is begun, the Social Security Administration will not conduct a continuing disability review. Since there will be no continuing disability review to find your medical disability has ended, it will be considered to continue.
How does the Social Security Administration consider the work done in the trial work period after it is over? That is, will the Social Security Administration use the work activity itself as evidence that you are no longer medically disabled? The trial work period regulation says that the Social Security Administration will not consider the work performed during the trial work period as showing that disability has ended until you have performed nine months of trial work. But then the Social Security Administration will consider that work.
But if you have received benefits for 24 months before a continuing disability review is begun, the Social Security Administration will not consider the work if it supports a finding that disability has ended; the Social Security Administration will consider the work activity if it supports a finding that disability continues.
If you are self-employed, there is a work incentive provision if you have received benefits for 24 months before a continuing disability review is begun. The Social Security Administration compares your countable income to the Substantial Gainful Activity amount. If you are not earning more than this amount, the work is not Substantial Gainful Activity. Even if you are earning more than the Substantial Gainful Activity amount in a particular month, but you are not rendering significant services to the business in the particular month, the work will not be considered Substantial Gainful Activity. The Social Security Administration will also not consider the services performed in work when it evaluates whether there was medical improvement unless the particulars of the work activity support a finding that disability continues.
Extended Period of Eligibility / Reentitlement Period
If it is determined that you are performing Substantial Gainful Activity after the trial work period is over, disability is found to cease. You are paid for the first month of Substantial Gainful Activity and the next two months. Whether you are paid benefits in the months after those three months depends on whether you are actually performing Substantial Gainful Activity in those months and whether you continue to have a disabling impairment.
For 36 months counting from the end of the trial work period (the “reentitlement period”) benefits will not be paid for any month in which you are performing substantial gainful activity. On the other hand, benefits will be paid for any month in which you are not performing Substantial Gainful Activity as long as you continue to have a disabling impairment.
What happens after the 36-month reentitlement period is over? This depends on whether you worked at the Substantial Gainful Activity level during the reentitlement period. If you are working at the Substantial Gainful Activity level at any time during the 36-month reentitlement period, the Social Security Administration will find that your entitlement to disability benefits terminates with the very first month of Substantial Gainful Activity after the end of the reentitlement period.
If you worked enough at the beginning of the 36-month reentitlement period to have benefits cease because of performance of Substantial Gainful Activity, and then stopped working during the reentitlement period, your benefits will resume and continue beyond the 36-month reentitlement period until the very first month you perform Substantial Gainful Activity.
Because there are significant consequences for using up the trial work period, it is recommended that you keep your income below the trial work services amount.
If your disability benefits were terminated because of the performance of Substantial Gainful Activity, and you stopped working after the end of the reentitlement period, you can request “expedited reinstatement” for 60 months after entitlement is terminated because you returned to work at the Substantial Gainful Activity level.
To qualify for expedited reinstatement you must:
- Not be performing Substantial Gainful Activity in the month you apply for expedited reinstatement;
- Be unable to work at the Substantial Gainful Activity level due to your medical condition;
- Have your current medical impairment be the same as or related to the original impairment; and
- Be under a disability based on application of the medical improvement review standards.