CONTINUING DISABILITY REVIEWS:
The What, Why, When and How

by Julie Justicz

What Are CDRs?

Most SSI and Social Security disability recipients assume that once they have navigated the complicated application process and started receiving benefits, their monthly check will continue indefinitely. The Social Security Administration (SSA), however, is required by law to conduct periodic checks of a person's medical condition to determine if they continue to meet disability standards. These periodic evaluations of a person's disability status are called Continuing Disability Reviews (CDRs). Those who receive SSI and SSDI, as well as advocates who work in the disability arena, can expect to hear a lot more about CDRs in the near future.

Why the Recent Focus on CDRs?

About 500,000 cases become due for a continuing disability review each year. For many years, SSA took a rather low-key approach to CDRs and did not review most of the cases at the scheduled time. As a result, there is now a backlog of one and a half million CDR cases. To deal with the backlog and to compel SSA to keep on top of new CDRs, Congress recently passed legislation that mandates more timely reviews and provides money to conduct them. The Contract with America Advancement Act of 1996 provided funds for SSA to conduct thousands of CDRs over the next few years. SSA has initiated many adult reviews because of the requirements of this law. Similarly, as a result of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, SSA is now required to conduct a CDR of each child's SSI case every three years.
The Social Security Administration's focus on CDRs is part of a recent movement to limit the growth of federal disability rolls and weed out undeserving cases. The danger of SSA's aggressive CDR policy, of course, is that many recipients who meet disability standards risk losing benefits anytime they have to go through a complicated review process. To help prevent unnecessary termination of benefits, people with disabilities and their advocates should understand how CDR process works.

When and How Does SSA Conduct CDRs?

SSA utilizes a different standard for CDRs from the standard used in initial disability determinations. The Disability Benefit Reform Act of 1984 established the medical improvement standard which is now used in CDRs. SSA has issued extensive regulations to interpret this medical improvement standard. The pertinent regulations can be found at 20 CFR 404.1594 (Social Security disability cases) and 20 CFR 416.994 and 994a (Adult and Children's SSI cases).

We will look at the relevant CDR standards for children and adults, in turn, below.

CDRs for Children's SSI Cases

Any child who receives SSI disability benefits will have their eligibility reviewed at least once every three years. (Note: SSI children who went through a redetermination to see whether their impairments fall within the new childhood disability definition will not be subject to CDRs for three years from the time of their favorable redetermination decision). The CDR process for children occurs as follows:

STEP ONE:
Has there has been medical improvement in the child's impairments? SSA defines medical improvement as any decrease in the medical severity of [the] impairment(s) which was present at the time of the most recent favorable decision . . .20 CFR 416.994a(c).
If there has been NO medical improvement, the child is still disabled and entitled to benefits.
If there has been medical improvement, go to STEP TWO.

STEP TWO:
If there has been medical improvement, SSA determines whether the impairment(s) the child had at the time of SSA's most recent favorable decision NOW meets or medically or functionally equals the severity of the listing it met at that time.
If the current impairment(s) still meets or equals the original listing, the child remains disabled and benefits will continue.
If there has been medical improvement and the child's impairment(s) no longer meets the listing that it met at the time of the last favorable decision, go on to STEP THREE.

STEP THREE:
SSA must consider whether the child's impairment(s) is disabling under the new childhood disability standard, as it appears at 20 CFR 416.924.
If the child's impairment(s) falls within the new childhood disability standard, disability benefits will continue.
If it does not, disability will cease.
In determining whether a child is currently disabled at STEP THREE, SSA conducts the following review:

Does the child have a severe impairment?
If yes, go on to next step.
If no, the child is not disabled.

Does the child's impairment(s) meet or equal any of the current listed impairments?
If yes, the child remains disabled.
If no, go on to next step.

Does the child's impairment functionally equal the severity of any listed impairment?
If yes, the child is remains disabled.
If no, the child is not disabled.

NOTE: There are a few exceptions in which disability may end, even if there has been no medical improvement. Advocates should review the regulations at 20 CFR 416.944a(e) and (f).

CDRs for Adult SSI and SSDI Cases

Most adults who receive SSI or Social Security disability benefits will be subject to a continuing disability review at some point. The time frame for the CDR depends on how the case was initially categorized. SSA generally places adult cases in the following categories and sets CDRs for the corresponding time period:

Category
MINE (Medical Improvement Not Expected)
Review Timetable
Every 7 years

Category
MIP (Medical Improvement Possible)
Review Timetable
Every 3 years

Category
MIE (Medical Improvement Expected)
Review Timetable
Every 18 months or less

The adult CDR process works as follows:

STEP ONE:
Is the individual engaged in substantial gainful activity?
If yes, has he or she exhausted trial work period?
If TWP is exhausted, then disability ends. (Trial Work Period does not apply to SSI recipients).
If individual is not engaged in SGA, go on to STEP TWO.

STEP TWO:
Does the individual have a current impairment(s) that meets or equals a listing?
If yes, disability continues.
If no, go on to STEP THREE.

STEP THREE:
Has there been medical improvement in the individual's condition?
If no, disability continues (unless case falls within groups of exceptions listed at 20 CFR 416.994(b)(3) and(b)(4)).
If yes, go on to STEP FOUR.

STEP FOUR:
Is the individual_s medical improvement related to his or her he ability to do work?
If no, disability continues (unless exceptions apply).
If yes, and no exceptions apply, go on to STEP SIX.

STEP FIVE:
Determine whether any of the exceptions apply. If exceptions from 20 CFR 416.994(b)(3) apply, go on to STEP SIX. If any exceptions from 20 CFR 416.994(b)(4) apply, disability ends.

STEP SIX:
Are the individual's current impairments severe?
If no, disability ends.
If yes, make a determination of the individual's residual functional capacity, and go on to STEP SEVEN.

STEP SEVEN:
Can claimant return to his or her past relevant work?
If yes, disability ends.
If no, go on to STEP EIGHT.

STEP EIGHT:
Can the claimant do any other work that exists in the national economy?
If yes, disability ends
If no, disability continues.

 

CDR Rights and Procedures

Notice
Social Security and SSI recipients have certain important rights when SSA begins the CDR process. Recipients are entitled to notice that a CDR will be conducted, why the review is happening, how the medical improvement standard works, that review could result in the termination of benefits, and that the recipient has the right to submit medical and other information. If SSA determines that disability benefits should stop, it must provide written notice of the termination, as well as information about the right of appeal.

Benefits Paid Pending Appeal
SSI and SSDI recipients can receive benefits during the appeal of a CDR termination decision. To do so, they must elect benefits by filing a Request for Reconsideration within 10 days of receiving the unfavorable CDR decision. If a recipient does not wish to request benefits during appeal, he or she has 60 days from the date of the decision to file a Request for Reconsideration.

Benefits generally can continue through the appeals process through the date of an ALJ hearing decision, as long as the recipient re-requests continued benefits within 10 days of the Reconsideration denial. If a recipient misses the deadline for requesting benefit continuation, but has good cause for missing the deadline, he or she may still be entitled to receive the benefits during appeal.

If SSA ultimately determines that a recipient is not entitled to disability benefits, the agency will ask for repayment of any continued benefits paid during appeal. However, recipients have the right to ask that they not have to pay back the benefits by filing a waiver. Generally, they are entitled to a waiver of overpayment as long as the cessation denial was made in good faith.

Legal Help
The CDR process can be extremely confusing. Persons who receive a CDR notice should seek legal help and take immediate steps to request benefits pending appeal. Legal help is available through local legal aid and legal assistance agencies.

 

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