Association of Administrative Law Judges

23rd Annual Educational Conference

Savannah, GeorgiaOctober 7-9, 2014

Continuing Disability Review, Onset Date, and Reopening

A Musical Guide

ALJ John P. CostelloRochester, NYOctober 2014

Why these topics?

• Continuing Disability Review (CDR)– SSA initiative– Will likely see more in coming year– SSR 13-3p change

• Onset date– Related to CDR

• Reopening– Practical tips

A Practical Guide

• Discuss the Regulation, SSRs• Discuss how it arises at the hearing level• Give advice on how to apply the law• Tips you can remember

CDR – Administrative Procedure• Frequency of CDR (20 CFR 404.1590 and 416.990)

– Generally based on likely medical improvement• Expected – review in 6 – 18 months• Not expected – 5-7 years• Possible – within 3 years• ALJ decision - > 3 years

– ALJ recommendation means little

• Ticket to Work and Work Incentives Improvement Act – Work activity alone will not trigger CDR if:

• Ticket to work, or• Receiving benefits at least 24 months (SSI excluded)

• Notice of termination– Reconsideration before Hearing Officer– Benefits continue if hearing request in 10 days

CDR Evaluation Process20 CFR 404.1594, 416.944 and 994a

• Three basic steps1. Is individual engaged in SGA?2. Do current impairments meet/= Listing?3. Has there been Medical Improvement?• Is it related to ability to do basic work activity?• If yes, are current impairment(s) severe?• Can individual perform PRW or other work?

Step One – Engaged in SGA?

• Title II – Is the SGA part of a Trial Work Period (TWP)?– How this might arise at hearing• DDS discontinues based on completion of TWP• You make de novo determination

• Title XVI– No TWP– Disability ends with work

Step Two – Meet or Equal Listing?

• Look at current impairments– At this step, not comparing to earlier ones– Inquiry ends if meets/=

Step Three – Medical Improvement?

• Medical Improvement Review Standard (MIRS)

• 3 step inquiry– Medical improvement?– Related to ability to work?– Can individual perform SGA?

Medical Improvement

• Period Under Consideration– SSR 13-3p• Through date of ALJ decision• For Title II and XVI• Rescinds AR 92-2(6); based on Difford

Medical Improvement?

• Decrease in medical severity at Comparison Point Date (CPD)– CPD is last favorable decision date– Improvement in signs, symptoms, or lab findings– Consider only impairments at time of CPD• Examples

– Lumbar disc disease– Rheumatoid arthritis

CPD Example

• Onset date – January 15, 2001• ALJ favorable decision – June 1, 2002• CDR by DDS – February 20, 2010

• What is the Comparison Point Date?

MIRS Step One – Has there been Medical Improvement?

• Improvement in signs, symptoms, or laboratory findings

• Of impairments at time of CPD• Example– Cpd – lumbar disc disease and carpal tunnel – Now – lumbar disc disease and depression

MIRS Step Two – Is it Related to the Ability to work?

• MI can be based on improvement in one basic work activity

• Does not require exertional capacity improvement• Consider all non exertional, including mental

– (concentration, memory, judgment, dealing with changes; others)

How do you determine if MI related to ability to work?

• Prior decision meets/= listing– Does claimant currently meet/=

• Prior decision based on RFC– Compare to current rfc– Practical considerations – how do you make this

comparison?• Prior file missing• Prior RFC missing• Prior RFC unclear

Prior RFC problems – cont’d

• Prior file missing– Determine if claimant can engage in SGA based on

all current impairments • If so, disability continues• If not?

– Reconstruct file

• Prior RFC Missing– Reconstruct to determine maximum RFC consistent

with allowance• This becomes the CPD RFC

Prior RFC problems – cont’d

• Prior RFC unclear– Look to body of decision for references • ALJ decision – did it incorporate a Medical source

statement• DDS – do they refer to a particular report

– Reconstruct consistent with allowance– Examples• DDS – “disability continues”

Obscure Points

• Work activity during period of entitlement is not Past Relevant work

Exceptions to Medical Improvment

• Means that even without medical improvement – disability ends– Group 1– Group 2

• Limited situations• Unlikely to play much role at hearing level• Beware of “substituting judgment”

Group One Exceptions20 CFR 404.1594; POMS DI 28020.050 – .380

• Beneficiary of advances in medical or vocational therapy or technology– “very limited application”– Does not apply to children SSI

• Vocational therapy • New or improved diagnostic/evaluative techniques show

the individual’s impairment(s) to be not as disabling as it was considered to be at the CPD– Electrocardiographic exercise test replaced the Master’s 2 Step

Test. Cardiac condition not as disabling as previously thought• Individual is engaging in SGA.

Group One cont’d

• Substantial evidence shows prior disability decision was in error– “on its face” prior determination in error

• Evidence misread • Listing misapplied• Grid Rule misapplied• At prior evaluation, required and material evidence of severity

of impairment missing• New evidence refutes prior determination

– If available claim would not have been allowed– Cannot substitute judgment– “Substantial evidence” needed to show prior error

Group Two Exceptions

Disability ends if:• Fraud• Failure to Cooperate

– E.g., Failure to attend a CE; supply evidence– Applies only when other evidence does not justify continuance– Practice Tip – ALJ must develop case

• Can’t find claimant• Failure to follow prescribed treatment

– Treatment “clearly expected" to restore ability to work (POMS DI 23010.005)

– Must be prescribed by treating source

Child Disability CDR

• Same basic rules as adult– Medical improvement?– Does not Meet, Equal, or Functionally Equal Listing

Age 18 redeterminations

• CDR rules do not apply– No need to show Medical Improvement– Use care with Intellectual Disability cases

Onset Date – Closed Period of Disability

• Distinguish Closed Period and TWP– TWP – continues disabled; testing work ability– Closed Period – disability ends

• Closed Period– Must be medical improvement • Apply MIRS

Closed Periods cont’d

– How shown• Medical evidence• Claimant acknowledgement (20 CFR 404.1591, 416.991• Return to work alone may not show MI• Practical tips

– Have Representative identify evidence showing MI– Use testimony to establish MI– Be clear on rfc and MI in instructions/decisions

Reopening

• Measured from Initial Denial date of prior application– For any reason

• 1 year– New and material evidence

• 2 years – Title XVI• 4 years – Title II

• Implied Reopening– If AOD invades prior determination

• Must address in decision if requested– Even in Unfavorable Decisions

Reopening - Considerations

• Ask for showing by representative• Effect of favorable decision invading prior

decision time– Does not alter earlier decision

• Prior ALJ decisions