Association of Administrative Law Judges 23 rd Annual Educational Conference Savannah, Georgia October 7-9, 2014

Continuing Disability Review, Onset Date, and Reopening A Musical Guide ALJ John P. Costello Rochester, NY October 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

Musical Guide?

CDR – Administrative Procedure Frequency of CDR (20 CFR and ) – 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 Process Adult – 20 CFR (f), (b)(5) Child – 20 CFR a

ADULT CDRs 8 Step Process 1.SGA? 2.Meets / = ? 3.Medical Improvement? 4.Medical Improvement related to ability to do Basic Work Activities? 5.Group I or II Exception Apply? 6.Severe Impairment? 7.Can Do PRW? 8.Can Do Other Work?

Adult CDR Three easy steps 1.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 only – Is the SGA part of a Trial Work Period (TWP)? – If engaged in SGA, disability ends – How this might arise at hearing DDS discontinues based on completion of TWP You make de novo determination Title XVI – Step one doesn’t apply

Step Two – Meet or Equal Listing? Look at current impairments – At this step, not comparing to earlier ones – Inquiry ends if meets/= What if person meets listing now, but didn’t earlier? – E.g., Step 5 allowance at CPD; now meets listing Do you need to evaluate entire period since CPD?

Step Three – Medical Improvement? Medical Improvement Review Standard (MIRS) Most CDRs at ALJ level decided here Essence – Has there been medical improvement – If so, can the person work now

MIRS (cont’d) These are Steps 3, 4, 5 of the 8 steps Three question inquiry 3.Medical Improvement? 4.Related to ability to work? 5.Does an Exception Apply?

Medical Improvement? Decrease in medical severity since Comparison Point Decision (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 Decision?

MIRS cont’d Step 3 - 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

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

MIRS Cont’d Step 4 - 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”

MIRS cont’d – Exceptions to Medical Improvement Step 5 – Group 1 and II Exceptions – If exception applies, go to next step – Should be rare Recap – steps 1 – 5 – You’ve found there is medical improvement related to ability to work or an exception applies Now – considering all CURRENT impairments, can person work

CDR cont’d Final 3 Steps 6.Severe impairment 7.Can do PRW 8.Can do other work In essence, applying familiar sequential evaluation process to determine if person is disabled now

Group One and Group Two Exceptions to Medical Improvement Step 5 of the CDR Process Means that even without medical improvement – must go to step 6 – Group One – consider at this step – Group 2 – consider anytime Limited situations Unlikely to play much role at hearing level Beware of “substituting judgment”

Group One Exceptions 20 CFR ; POMS DI –.380 All Require “Substantial Evidence” 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

Group One cont’d 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

Group Two Exceptions (Cont’d) Can’t find claimant Failure to follow prescribed treatment – Treatment “clearly expected" to restore ability to work (POMS DI ) – Must be prescribed by treating source

Age 18 redeterminations CDR rules do not apply – No need to show Medical Improvement – Use care with Intellectual Disability cases

Child Disability CDR 20 CFR a Three Steps 1.medical improvement? Consider only CPD impairments If yes, continue to step 2 2.Do the CPD impairments now meet, equal, or functionally equal the severity of a CPD listing? Or does an exception apply If no, continue to step 3 3.Is the child currently disabled, considering all the impairments?

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 , 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

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