SSR 13-3p: Title II : Appeal of an Initial Medical Disability Cessation Determination or Decision

Effective Date: February 21, 2013 Publication Date: February 21, 2013 Federal Register

Vol. 78, No. 35, page 12130

Policy Interpretation Ruling

Purpose: This SSR explains how we will review an initial medical

cessation determination or decision when we receive a timely

request for administrative review of the cessation determination

or decision. In this SSR, we are adopting as our nationwide

policy the holding in Difford v. Secretary of Health and Human

Services , 910 F.2d 1316 (6th Cir. 1990). We have applied the

holding in that decision under Acquiescence Ruling (AR) 92-2(6)

to cases involving beneficiaries residing in States within the

Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee). Because

this SSR addresses the issue decided by the Difford court, in this issue of the Federal Register , we are also publishing a

notice rescinding AR 92-2(6) as obsolete in accordance with our acquiescence regulations, 20 CFR

404.985(e)(4) . [1]

Citations: Sections 223(f) of the Social Security Act, as amended; Regulations No. 4, Subpart D, section 404.316 ;

Subpart J, sections 404.902 , 404.905 ; and Subpart P, sections 404.1579 , 404.1589 , 404.1590 , 404.1593 , and 404.1594 .

Pertinent History: Section 223(f) of

the Social Security Act (Act) sets forth the standard of review for determining whether

an individual's disability has medically ceased. This provision

provides, in relevant part, as follows:

“ (f) 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, as follows:

“ (f) 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; or

(2) substantial evidence which—

(A) consists of new medical evidence and a new assessment of the

individual's residual functional capacity, and demonstrates

that—

(i) although the individual has not improved medically, he or

she is nonetheless a beneficiary of advances in medical or

vocational therapy or technology (related to the individual's

ability to work), and

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

activity, or

(B) demonstrates that—

(i) although the individual has not improved medically, he or

she has undergone vocational therapy (related to the

individual's ability to work), and

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

activity; or

(3) substantial evidence which demonstrates that, as determined

on the basis of new or improved diagnostic techniques or

evaluations, the individual's impairment or combination of

impairments is not as disabling as it was considered to be at

the time of the most recent prior decision that he or she was

under a disability or continued to be under a disability, and

that therefore the individual is able to engage in substantial

gainful activity; or

on the basis of new or improved diagnostic techniques or

evaluations, the individual's impairment or combination of

impairments is not as disabling as it was considered to be at

the time of the most recent prior decision that he or she was

under a disability or continued to be under a disability, and

that therefore the individual is able to engage in substantial

gainful activity; or

(4) substantial evidence (which may be evidence on the record at

the time any prior determination of the entitlement to benefits

based on disability was made, or newly obtained evidence which

relates to that determination) which demonstrates that a prior

determination was in error.

*     *     *

*     *

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 individual's prior

or current condition, which is presented by the individual or

secured by the Commissioner of Social Security. Any

determination made under this section shall be made on the basis

of the weight of the evidence and on a neutral basis with regard

to the individual's condition, without any initial inference as

to the presence or absence of disability being drawn from the

fact that the individual has previously been determined to be

disabled.”

Introduction

Since Congress enacted section 223(f) of the Act in 1984, we have interpreted the words “now”

and “current” in that section

of the Act to mean that, generally, when deciding the appeal of

a medical cessation, an adjudicator would consider what the

beneficiary's condition was at the time of the initial cessation

determination. The adjudicator would not consider the

beneficiary's condition at the time of the reconsideration or

disability hearing officer's determination, the administrative

law judge's (ALJ) decision, or the Appeals Council's (AC)

decision

g the appeal of

a medical cessation, an adjudicator would consider what the

beneficiary's condition was at the time of the initial cessation

determination. The adjudicator would not consider the

beneficiary's condition at the time of the reconsideration or

disability hearing officer's determination, the administrative

law judge's (ALJ) decision, or the Appeals Council's (AC)

decision. If the adjudicator determined that the medical

cessation date was appropriate, but evidence also showed that

the beneficiary had 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, the adjudicator would solicit a new application for

title II disability benefits. In title XVI cases, a new

application is not required if a recipient of supplemental

security income payments again becomes disabled while an appeal

is pending ( 20 CFR 416.305(b) ).

In Difford , the United States Court of Appeals for the Sixth

Circuit interpreted the references to “now” and “current” in

section 223(f) of the Act to require that when we review a

medical disability cessation determination or decision, we must

consider whether the beneficiary was disabled at any time

through the date of the adjudicator(s)'s final determination or

decision. Under Difford , as applied in AR 92-2(6) , when we

review a determination or decision that disability has medically

ceased, the adjudicator must consider the individual's

disability through the date of his or her determination or

decision, rather than determining only whether the individual's

disability had ceased at the time of the initial cessation

determination. We are now revising our interpretation of section

223(f) of the Act to adopt the policy contained in Difford AR as

our nationwide policy.

eased, the adjudicator must consider the individual's

disability through the date of his or her determination or

decision, rather than determining only whether the individual's

disability had ceased at the time of the initial cessation

determination. We are now revising our interpretation of section

223(f) of the Act to adopt the policy contained in Difford AR as

our nationwide policy.

In this SSR, we use the term “final decision” to differentiate

between the initial cessation determination and the subsequent

determination or decision on appeal that becomes

administratively final. As used in this Ruling, “final

decision” refers to the administrative determination or decision

that becomes final because the beneficiary does not request

further administrative review, or when the AC issues a decision.

“Final decision” does not refer to cases where the AC denies a

request for review or issues remand or dismissal order. At the

time an adjudicator makes a determination or decision at the

reconsideration or hearing level, the adjudicator does not know

if the beneficiary will request an appeal. Therefore, the

adjudicator cannot know whether the determination or decision

will become the final determination or decision. In

implementing this Ruling, we refer to a determination or

decision made at any administrative review level as though it

will become a final determination or decision.

Policy Interpretation: This SSR revises our policy to provide

that we will use the same timeframe for determinations or

decision we make in both title II and title XVI medical

disability cessation cases reviewed at the reconsideration and

hearings level(s) of our administrative review process. Under

the policy we are adopting in this Ruling, the adjudicator

reviewing the medical cessation determination or decision will

decide whether the beneficiary is under a disability through the

date of the adjudicator's determination or decision.

I and title XVI medical

disability cessation cases reviewed at the reconsideration and

hearings level(s) of our administrative review process. Under

the policy we are adopting in this Ruling, the adjudicator

reviewing the medical cessation determination or decision will

decide whether the beneficiary is under a disability through the

date of the adjudicator's determination or decision.

When the AC receives a request for review of a hearing decision,

the AC generally considers evidence that relates to the period

on or before the date of the ALJ's decision. When deciding

whether to grant a request for review of an ALJ's decision in a

medical cessation case, the AC will not consider evidence that

does not relate to the period on or before the date of the ALJ's

decision. If the ALJ correctly applied this Ruling and there is

no basis for review on any other issue, the AC will deny the

request for review. If the AC grants the request for review,

vacates the ALJ's decision and remands the medical cessation

case to the ALJ for further proceedings, on remand, the ALJ will

apply the provisions of this Ruling. However, in a medical

cessation case when the AC grants review and exercises its

authority to issue a decision, then it will determine the

beneficiary's disability through the date of the AC decision,

which will be our final decision.

In addition, a timely request for administrative review of a

disability cessation determination or decision, including cases

where we find good cause for late filing, constitutes a

protective filing of an application permitting a determination

of disability through the date of the final determination or

decision on appeal.

the date of the AC decision,

which will be our final decision.

In addition, a timely request for administrative review of a

disability cessation determination or decision, including cases

where we find good cause for late filing, constitutes a

protective filing of an application permitting a determination

of disability through the date of the final determination or

decision on appeal.

Adjudicators use the date of the initial request for review of

the disability cessation determination as the filing date for a

new period of disability. We establish a new period of

disability if the beneficiary again became disabled as a result

of a worsening of an existing impairment or by the onset of a

new impairment before the date of the determination or decision

on appeal, and if all other requirements for establishing a

period of disability, including the duration and insured status

requirements in title II cases, have been met. If cessation of a

prior period of disability is confirmed, a beneficiary will not

be found eligible for a subsequent period of disability if he or

she did not become disabled again until after the date last

insured (as determined after taking account of all prior periods

of disability and updates to a claimant's earnings record).

Since this Ruling revises how we consider the title II appeal

(or in concurrent cases, the title II portion) of a medical

disability cessation case, it eliminates the need for a new

claim for reentitlement in title II cases. The adjudicator will

evaluate disability through the date of the appeal determination

or decision regarding the beneficiary's medical cessation and

possible reentitlement, thereby eliminating the need for filing

a new application for reentitlement in title II cases.

Adjudicators will consider the following in administrative

review of determinations or decisions that a beneficiary's

disability has medically ceased:

e disability through the date of the appeal determination

or decision regarding the beneficiary's medical cessation and

possible reentitlement, thereby eliminating the need for filing

a new application for reentitlement in title II cases.

Adjudicators will consider the following in administrative

review of determinations or decisions that a beneficiary's

disability has medically ceased:

- If the adjudicator determines the initial medical

cessation determination was correct, he or she will then

determine whether the beneficiary has again become disabled

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

decision because of a worsening of an existing impairment

or the onset of a new impairment, if all other requirements

for establishing a period of disability, including the

duration and insured status requirements are met.

- If the adjudicator determines that the initial

disability cessation determination was not correct, he or

she will determine if the evidence establishes medical

improvement as a basis for cessation of disability at any

time through the date of final determination or decision.

- In every case where we find that that the beneficiary

was not continuously disabled through the date of the

appeal determination or decision, the adjudicator must

fully explain the basis for the conclusion reached in the

determination or decision. The adjudicator will state the

month the beneficiary's disability ended, and, if

applicable, the month in which a new period of disability

began and any intervening months during which there was no

disability.

- If the beneficiary's disability has medically ceased,

the determination or decision must specifically address the

initial cessation determination and the beneficiary's

eligibility (or ineligibility) for a new a period of

disability through the date on which the appeal

determination or decision is being made, or, if earlier,

through the date last insured.

h there was no

disability.

- If the beneficiary's disability has medically ceased,

the determination or decision must specifically address the

initial cessation determination and the beneficiary's

eligibility (or ineligibility) for a new a period of

disability through the date on which the appeal

determination or decision is being made, or, if earlier,

through the date last insured.

If the adjudicator determines the initial medical

cessation determination was correct, he or she will then

determine whether the beneficiary has again become disabled

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

decision because of a worsening of an existing impairment

or the onset of a new impairment, if all other requirements

for establishing a period of disability, including the

duration and insured status requirements are met.

If the adjudicator determines that the initial

disability cessation determination was not correct, he or

she will determine if the evidence establishes medical

improvement as a basis for cessation of disability at any

time through the date of final determination or decision.

In every case where we find that that the beneficiary

was not continuously disabled through the date of the

appeal determination or decision, the adjudicator must

fully explain the basis for the conclusion reached in the

determination or decision. The adjudicator will state the

month the beneficiary's disability ended, and, if

applicable, the month in which a new period of disability

began and any intervening months during which there was no

disability.

If the beneficiary's disability has medically ceased,

the determination or decision must specifically address the

initial cessation determination and the beneficiary's

eligibility (or ineligibility) for a new a period of

disability through the date on which the appeal

determination or decision is being made, or, if earlier,

through the date last insured.

ich there was no

disability.

If the beneficiary's disability has medically ceased,

the determination or decision must specifically address the

initial cessation determination and the beneficiary's

eligibility (or ineligibility) for a new a period of

disability through the date on which the appeal

determination or decision is being made, or, if earlier,

through the date last insured.

Effective Date: This Ruling is effective upon publication in

the Federal Register .

[1] This SSR applies only to determinations or decisions finding

that a beneficiary is no longer entitled to benefits because the

physical or mental impairment on the basis of which the benefits

have been paid has ceased, does not exist, or is no longer

disabling. We call this type of finding a medical cessation

determination or decision. This SSR does not apply to disability

cessations based on substantial gainful activity.