AR 92-2(6): Rescinded

AR 92-2(6): Rescinded 2/21/2013 by Federal

Register Vol. 78, No. 35, page 12120

EFFECTIVE/PUBLICATION DATE: 03/17/92

ISSUE:

Whether in deciding the appeal of a determination that an individual's

disability has medically ceased, the adjudicator must consider the issue

of the individual's disability through the date of the Secretary's final

decision, rather than deciding the appeal based on the issue of continuing

disability only through the date of the initial cessation

determination.

STATUTE/REGULATION/RULING CITATION:

Section 223(f) of the Social Security Act (42 U.S.C. 423(f)), 20 CFR

404.1579, 404.1589, 404.1590, 404.1594.

CIRCUIT:

Sixth (Kentucky, Michigan, Ohio, Tennessee)

Difford v. Secretary of Health and Human Services , 910 F.2d 1316

(6th Cir. 1990), reh'g denied , February 7, 1991.

APPLICABILITY OF RULING:

The court's holding affects only cases at the disability

hearing/reconsideration, Administrative Law Judge and Appeals Council

levels. Therefore, this Ruling applies only to determination or decisions

made at those levels.

DESCRIPTION OF CASE:

On October 19, 1976, the plaintiff applied for disability benefits. It was

determined that he was disabled effective April 2, 1976. In June 1982, he

was notified of a proposal to terminate his benefits because current

medical records showed that he was no longer disabled. Benefits were

terminated as of August 31, 1982. The plaintiffs request for

reconsideration was denied and he did not pursue any further appeal.

The plaintiff filed a new application on May 16, 1983. This application

was denied initially and throughout the administrative review process,

culminating in the Appeals Council denying the plaintiff's request for

review on April 13, 1984. The plaintiff did not file any action in court

to challenge the final decision of the Secretary.

n was denied and he did not pursue any further appeal.

The plaintiff filed a new application on May 16, 1983. This application

was denied initially and throughout the administrative review process,

culminating in the Appeals Council denying the plaintiff's request for

review on April 13, 1984. The plaintiff did not file any action in court

to challenge the final decision of the Secretary.

In June 1984, the plaintiff obtained employment. On January 2, 1985, he

injured his knee and back in an accident at work. He had surgery on his

right knee in January 1985 and became unemployed.

Because the plaintiff was a member of the Holden class ( Holden

v. Heckler , 584 F.Supp. 463 (N.D. Ohio 1984), an Ohio class action

which successfully challenged the Secretary's former policies and

procedures used in continuing disability reviews), he received notice in

February 1985 that he had the right to apply for reinstatement of his

disability benefits and to have him claim reviewed under the appropriate

medical improvement standard. He requested review of his case on March 19,

1985. The Secretary determined, both initially and on reconsideration,

that the original termination decision was correct. On January 28, 1988,

after considering only the evidence of the plaintiff's condition through

June 1982, an Administrative Law Judge issued a decision finding that the

plaintiff's disability had ceased as of June 1982 because his condition

had medically improved. The Appeals Council denied the request for review.

Accordingly, the Administrative Law Judge's decision became the final

decision of the Secretary. The plaintiff then sought judicial review.

plaintiff's condition through

June 1982, an Administrative Law Judge issued a decision finding that the

plaintiff's disability had ceased as of June 1982 because his condition

had medically improved. The Appeals Council denied the request for review.

Accordingly, the Administrative Law Judge's decision became the final

decision of the Secretary. The plaintiff then sought judicial review.

In affirming the Secretary's cessation decision, the district court noted

that the plaintiff had worked for six months after it had been determined

that his disability had ceased. The court found that the plaintiff's knee

and arthritis impairments as of the time of the Administrative Law Judge

hearing were a direct result of his 1985 job-related accident. Therefore,

the court concluded that the relevant time frame for consideration of

cessation of disability was 1976-1982. The plaintiff then appealed to the

United States Court of Appeals for the Sixth Circuit.

HOLDING:

The Sixth Circuit stated that the case turned "on the correct

interpretation of certain provisions of § 2(a) of . . . Pub. L. No.

98-460, 98 Stat. 1794 (1984), codified at 42 U.S.C. § 423(f), which sets

the standard of review for termination of disability benefits." Those

provisions, in relevant part, provide as follows:

A recipient of benefits under this title or title XVIII based on the

disability of any individual may be determined not to be entitled to such

benefits on the basis of a finding that the physical or mental impairment

on the basis of which such benefits are provided has ceased, does not

exist, or is not disabling only if such finding is supported by —

in relevant part, provide as follows:

A recipient of benefits under this title or title XVIII based on the

disability of any individual may be determined not to be entitled to such

benefits on the basis of a finding that the physical or mental impairment

on the basis of which such benefits are provided has ceased, does not

exist, or is not disabling only if such finding is supported by —

(1) substantial evidence which demonstrates that —

(A) there has been any medical improvement in the individual's impairment

or combination of impairments (other than medical improvement which is not

related to the individual's ability to work), and

(B) the individual is now able to engage in substantial gainful

activity . . .

Any determination under this section shall be made on the basis of all the

evidence available in the individual's case file, including new evidence

concerning the individuals prior or current condition which is

presented by the individual or secured by the Secretary. (Emphasis

added.)

The court held that:

the plain meaning of statutory references to "now" or "current" compels a

consideration of an individual's ability to perform substantial gainful

activity at the time of the hearing . . . . We note, however, that

interpretation of § 423(f) to require assessment of Difford's condition as

of the 1988 hearing does not preclude a finding by the Secretary that the

length of time of Difford's employment . . . is a period of non-disability

for which benefits may be withheld.

910 F.2d at 1320, emphasis added.

STATEMENT AS TO HOW DIFFORD DIFFERS FROM SOCIAL SECURITY

POLICY:

. . . We note, however, that

interpretation of § 423(f) to require assessment of Difford's condition as

of the 1988 hearing does not preclude a finding by the Secretary that the

length of time of Difford's employment . . . is a period of non-disability

for which benefits may be withheld.

910 F.2d at 1320, emphasis added.

STATEMENT AS TO HOW DIFFORD DIFFERS FROM SOCIAL SECURITY

POLICY:

SSA interprets the term "current," as used in the statutory and regulatory

language concerning termination of disability benefits, to relate to the

time of the cessation under consideration in the initial determination of

cessation. In making an initial determination that a claimant's disability

has ceased, SSA considers the claimant's condition at the time SSA is

making the initial determination. In deciding the appeal of that cessation

determination, the Secretary considers what the claimant's condition was

at the time of the cessation determination, not the claimant's condition

at the time of the disability hearing/reconsideration determination, ALJ

decision or Appeals Council decision. However, if the evidence indicates

that the claimant's condition may have again become disabling subsequent

to the cessation of his or her disability or that he or she has a new

impairment, the adjudicator solicits a new application.

The Sixth Circuit Court of Appeals has found that, in reviewing a

cessation determination, SSA must consider the claimant's condition

through the date of the Secretary's final determination or decision.

EXPLANATION OF HOW SSA WILL APPLY THE DECISION WITHIN THE CIRCUIT:

This Ruling applies to cases involving claimants who reside in Kentucky,

Michigan, Ohio, or Tennessee at the time of the determination or decision

at the disability hearing/reconsideration, the Administrative Law Judge or

Appeals Council levels.

ondition

through the date of the Secretary's final determination or decision.

EXPLANATION OF HOW SSA WILL APPLY THE DECISION WITHIN THE CIRCUIT:

This Ruling applies to cases involving claimants who reside in Kentucky,

Michigan, Ohio, or Tennessee at the time of the determination or decision

at the disability hearing/reconsideration, the Administrative Law Judge or

Appeals Council levels.

In making a determination or decision concerning whether or not an

individual's disability has ceased, the disability hearing officer,

Administrative Law Judge or Appeals Council may not limit consideration to

the period of time ending with the date disability was initially

determined to have ceased, but must also give consideration to the

individual's ability to perform substantial gainful activity through the

date on which the appeal determination or decision is being made.

The adjudicator will consider whether the initial cessation determination

was correct. If the adjudicator determines that the initial cessation was

correct, he or she will then consider whether the claimant has again

become disabled at any time through the date of his or her determination

or decision as a result of a worsening of an existing impairment or by the

onset of a new impairment. If, on the other hand, the adjudicator

determines that the initial cessation determination was not correct, the

adjudicator will determine if the evidence establishes medical improvement

as a basis for termination of benefits as of any time through the date of

his or her determination or decision. In every case where it is

established that the claimant was not continuously disabled through the

date of the appeal determination, the adjudicator will fully explain the

basis for the conclusions reached, and will state the month that the

claimant's disability ended, and, if applicable, the month a new

disability began and any intervening months of nondisability.