In 1996, Congress mandated that Social Security do an increasing number of CDRs, and set aside approximately $4.1 billion to ensure that the CDRs take place. This resulted in a dramatic increase in the number of CDRs. For example Social Security completed 690,500 CDRs in 1997, ten times the number completed in 1993 (64,800). Social Security plans to do 1,000,000 CDRs per year beginning in 1999. Obviously, many recipients of benefits who have gone some time without having their disability status reviewed will face a review in the next few years.
Futhermore, recipients of Title II and SSI benefits will likely find themselves facing CDRs without the benefit of an experienced representative. Unlike the initial application, where a substantial retroactive payment usually accrues while the application is pending, a CDR generally does not generate a large retroactive payment. As discussed below, a recipient can elect, and usually will elect, to continue receiving benefits while the CDR is in process. Hence, once the CDR is resolved favorably, no pool of money exists out of which an attorney can be paid. For this reason, most attorneys do not accept CDR cases.
Hence, this manual will guide you through the CDR process with the assumption that you do not have representation. The Hawkins Center intends the manual to be a practical, how-to source of information on self representation.
Next, Social Security sends the files that it has chosen to review to the local district office for development of the CDR. The local district office then notifies you of the review and asks you to fill out a 454 form which updates Social Security on your medical and vocational situation. Social Security then sends the case to the local Disability and Adult Programs Division (DAPD) which gathers your medical records, orders physical and mental examinations if necessary, and makes the decision on whether you are still disabled. You can locate the state agency, also known as DAPD, and local Social Security district office handling your case through the Social Security Advisory Service's Service Area Directory (SAD).
Once the DAPD has made a decision on the claim, it sends the file back to the local Social Security district office which notifies you of the result of the review. In 90% of the cases, Social Security continues benefits. In the other 10% it issues a notice of termination. The notice of termination is the initial determination in the CDR process.
If you receive a termination and feel that you cannot work because of a disability, you should file a Request for Reconsideration-Disability Cessation within 10 days of the notice of termination. Actually, you have 60 days to request reconsideration. However, if you file within 10 days of the notice, you can opt to continue receiving benefits while the appeal is pending.
You should be aware that by requesting the continuation of benefits, the possibility of an overpayment arises. If your appeal is denied and your benefits are terminated, Social Security will ask that you pay back any benefits that you received after the initial termination of benefits. In most cases, Social Security will waive the overpayment. However, if you have significant resources or you fail to fully cooperate with the CDR determination process and do not follow through with your appeal, then Social Security will not waive the overpayment. For this reason, it is very important that you carefully consider whether or not you seriously intend to follow through on your appeal before you request ongoing benefits.
The request for reconsideration generates another review of your medical file. Social Security will send the file back to the DAPD which will take another look at the file. Unlike the initial application process, you have the option to meet with the person who decides the reconsideration. You can present evidence and arguments to the decision maker at DAPD. However, the meaningfulness of this type of hearing has been seriously questioned by claimants' representatives. Depending on your abilities and disabilities, you may or may not choose to meet with the DAPD decision maker. To request a conference with the person who decides your case, you need to check the box "informal conference" on the request for reconsideration.
In most cases, Social Security will confirm the termination of benefits at the reconsideration stage. You will receive a notice from Social Security stating that the initial termination stands. Again, you have only 10 days to appeal that decision by requesting a hearing before an administrative law judge if you wish to have your benefits continue while you wait for your hearing. If you miss the 10 day deadline, you still have 60 days in which to request an administrative law judge hearing. At the hearing, you will have the opportunity to present your evidence and argue your case to the administrative law judge. If you had a hearing when you first got benefits, you will have some familiarity with the hearing process. Below, under "Practical How-To Information about Developing Your Claim" you will find out what needs to be done before you go to a hearing to assure continuation of benefits.
Social Security evaluates the vast majority of CDR cases under what is known as the medical improvement standard. In the following several paragraphs, the medical improvement standard will be explained in detail. However, there are several other reasons that Social Security uses on occasion to terminate benefits. This manual will not go into great detail about these other reasons for termination, because they are used relatively infrequently. Other reasons for termination of a claim include: (1) the recipient fraudulently received benefits initially; (2) the claimant failed to cooperate with Social Security in its review; (3) Social Security cannot locate the recipient; (4) the recipient has failed to follow treatment prescribed by his or her doctor that would likely restore the claimant's health to the point that he or she could go back to work; (5) the claimant has benefited from an advancement in medical or vocational technology that would allow the person to go back to work; (6) the claimant has undergone vocational rehabilitation and is now able to work; (7) a new diagnostic technique or exam exists that shows that the person's impairment was not as severe as it was initially believed to be; and (8) the prior decision was in error. You will notice that number 8 is very vague. Fortunately, Social Security has rarely used this rationale in terminating benefits. If you receive a notice which states that your benefits have been terminated because the prior decision was in error, you may contact The Hawkins Center for advice about how to proceed.
However, a second avenue for obtaining disability benefits exists. An impairment or combination of impairments will generate a finding of disability if that impairment or impairments is so severe that it prevents the person from going back to the work he or she did in the past and prevents the person from adapting to any other type of work within the national economy, given the person's age, education and work experience. Under this standard, the more severe the impairment, the more likely the person will be found disabled. Similarly, the older and less educated the person is, the more likely they are to be found disabled. Finally, the more strenuous the past work history, the more likely the person will be found disabled. These considerations are embodied in Social Security regulations known as the Grids. The Grids are described under the Practical How-To section.
The next thing that Social Security must show is that your medical improvement is related to your ability to work. In most cases, an improvement in your medical condition will allow you to do more work-like activities. Social Security compares your condition from the time that you were initially found disabled, or from the last CDR that you underwent, to your condition at the time when Social Security decided to terminate your benefits. Social Security should obtain the old file from when you first got benefits to make the comparison. If it does not and cannot reconstruct your prior medical history, then it cannot terminate benefits. With regard to showing that your ability to work has increased, Social Security will refer to your residual functional capacity (RFC). RFC is what you are able to do despite your medical condition. The components of RFC are your ability to stand, walk, sit, lift, your ability to concentrate, interact with other people, deal with work stresses, etc. Social Security must show that your abilities in these types of areas have improved.
The first step in the medical improvement standard is to determine whether or not you are currently working. If you are currently working, known as doing substantial gainful activity (SGA), then you are no longer disabled and no longer eligible for benefits. Social Security determines whether you are doing SGA through a variety of parameters, but practically speaking, Social Security looks to see how much money you are earning. If you are earning less than $300 a month, then you are not doing SGA. If you are earning between $300 and $500 a month, then whether you are doing SGA is up in the air. If you earn more than $500 a month, then your work will be presumed SGA and you will be presumed to no longer be disabled. You can rebut this presumption through a variety of ways, including showing that you are in a sheltered workshop where special considerations are given to you because of your disabilities.
The second thing that Social Security will look at is whether your condition now meets a listing. If it now meets a listing, then you are still disabled and no further inquiry is necessary. If your condition previously met a listing but no longer meets a listing, then medical improvement will be presumed and that improvement will be assumed to be related to your ability to work.
After Social Security has determined that medical improvement exists and that improvement increases your RFC, it will next inquire whether you can now do the work that you have done in the past. If it determines that you can, then Social Security will decide that you are no longer disabled. Again, the concept of RFC is critical here. Whether you can go back to work depends on whether you can do the exertional and nonexertional components of that work. You need to think about whether or not you are able to do, for example, the sitting, walking, or standing that was required by your past work.
After Social Security has determined that medical improvement exists and that improvement increases your RFC, it will next inquire whether you can now do the work that you have done in the past. If it determines that you can, then Social Security will decide that you are no longer disabled. Again, the concept of RFC is critical here. Whether you can go back to work depends on whether you can do the exertional and nonexertional components of that work. You need to think about whether or not you are able to do, for example, the sitting, walking or standing that was required by your past work.
If Social Security decides that you cannot return to your past relevant
work, then it will inquire whether you can make an adjustment to any other
type of work that exists in the national economy, given your age, education
and work experience. These considerations have been boiled down into a
decisional framework known as the Grids. While there are several details
which could affect the outcome on the Grids, the primary considerations
for whether you are disabled under the Grids are as follows:
1. If you are younger than 50 years old, you have to show that you
cannot do your past relevant work and cannot do any other work which exists
in significant numbers in the economy. Essentially, you have to show that
you cannot do the easiest type of work that exists. For example, unskilled
sit-down work or any other kind of work. Examples of unskilled sit-down
work are sit-down assembly work and working as a parking lot attendant.
2. If you are 50-54 years old, you have to show that you are unable to do your past relevant work and are unable to do everything but sit down type of work. Hence you have to show that you are unable to do work on your feet and work that requires lifting of 10 pounds frequently and 20 pounds occasionally. One exception exists, if you have done skilled work in the past, you have to show that you have no transferable skills to sit-down work.
3. If you are between the ages 55 and 65, you have to show that you cannot do your past relevant work and that you have no skills that are transferable to the sedentary or light range and that you are limited to doing at most light work. You have to show that you cannot do medium work. Medium work involves standing on your feet at least six hours a day and lifting 50 pounds occasionally and 25 pounds frequently.
Equally important is that you file your appeals promptly so that you can continue getting your benefits while your appeal is pending and so that you do not give up your right to Social Security benefits. As soon as you get any notice, you need to respond to that notice that day or the following day. Do not wait. If you do not know what to do, call Social Security or call the attorney that represented you in your initial case.
Thirdly, you must get control of the medical issues in your case. Social Security makes its decisions based on what is in the medical record. You can tell Social Security about all your problems, but unless you can back it up with hard medical evidence, you will not win your case. This means that you want to make sure that Social Security has all of your medical records, particularly the ones that tend to show that you have a severe medical problem. The DAPD is supposed to gather all the medical evidence. In some cases it does. In the majority of cases, it fails to gather all relevant evidence. For this reason, if you are able, you should try to gather all of the medical evidence yourself and submit it to the DAPD. If you have only one provider, such as Kaiser, getting your medical records will be easy. You simply need to contact the medical records department and ask for a copy of your records. In some cases providers will charge a small fee for copying. If you have a number of providers and hospitals, it may be more difficult to get your medical records. Similarly, your disabilities may not allow you to do the footwork required to get your records. However, this does not mean that you cannot do anything. You should provide detailed information, including phone numbers and addresses, of every doctor, psychologist, physical therapist, chiropractor, etc. that you have seen, and make sure that the person at DAPD has this information and has ordered records from these providers. To do this, you need to provide detailed information on the 454 form when Social Security notifies you that it is reviewing your case. Next, you need to contact the analyst at DAPD who has your case and pressure that person to get all of your records. You can find out who is handling your case by calling the master file number which is provided in the Appendix. You simply call that person and go over what records exist and which records the analyst has requested.
Next you need to get an opinion from your doctor about your condition and how your condition affects your ability to work. Social Security gives great weight to the opinions of your treating physicians about the nature and severity of your impairment and how this affects your ability to work. The easiest way to get an opinion from your doctor is to ask him or her to write a letter to Social Security stating his or her opinion about the following:
(1) What is your condition (i.e. what are his or her diagnoses of your
medical problems);
(2) What treatment has the doctor given you to ameliorate your medical
problems;
(3) How severe does the doctor feel your problems are;
(4) Does the doctor think you are able to go back to work; and
(5) Why does the doctor feel that you are not able to return to work.
You must remember that a simple statement that you are disabled will not help you in any way. You must have the doctor explain why he or she feels that you cannot work. This means that the doctor has to state, for example, that because you are unable to sit for more than two hours per day and stand for two hours per day, you could not do an eight hour work day. Or, for example, because you cannot handle work stresses without becoming extremely anxious, you cannot make it through a work day on a regular basis.
You need to talk to your doctor about your situation with some understanding of what you have to show in order for your disability benefits to continue. As described above, you need to consider, first, whether your medical condition has improved at all from the date of your initial award of Social Security benefits. If your doctor does not believe that your medical condition has improved since that time, ask him or her to state that in his or her letter. Second, you may want to consult the listings and ask your doctor whether of not you meet the listing for your particular medical problem. Third, and most important, you should understand where you fit on the Grids and to what extent you have to show yourself to be functionally impaired. If you are under 50, tell him or her that you need to show that your functional capacity is so low that you cannot even make it though an eight hour day at a sit down job. This means that you would have to show that you would be unable to sit for six hours per day. Or it could mean that you were unable to mentally handle full-time work of any kind.
The importance of your doctor's opinion regarding your condition cannot be overstated. For this reason, it is very important that you know ahead of time what you need for that doctor to say before you ask him or her for your letter. For example, if you feel that you are unable to sit six hours per day and unable to lift more than five pounds on an occasional basis, you need to tell your doctor this and explain to him or her why this is true. Then you should ask your doctor to write a letter stating his or her opinion. Oftentimes a doctor will believe what you have told him or her about your condition and echo it in his or her letter. If your doctor gives you a letter that you feel is inaccurate, make an appointment with him or her and try to explain to him or her why you feel that the letter is wrong.
Aside from the medical evidence, there are several other sources of information that can help your case. For example, oftentimes people try to go back to school but cannot finish because of their impairments. If that was the case, then get your medical records and get statements from your teachers who know the problems that you have. Another good source of information is from friends or neighbors who have seen how your problems have affected your life. Have them write statements about your condition and submit them. If you went through vocational rehabilitation, ask your counselor to write a letter if he or she feels that you have not gained the ability to go back to work. If you tried to go back to work and failed, ask your supervisor to write a letter explaining why you failed at work.
In sum, you need to emphasize what your limitations are. Do not try
to be a stoic in this process. If you gather all the information described
above, your chances of success are greatly enhanced.