Thanks to increased funding in recent years, the Social Security Administration (SSA) has dramatically increased the number of Continuing Disability Reviews (CDRs). In fact, in August, Acting Commissioner Nancy Berryhill announced that SSA has finally “achieved currency with the release of all available medical Continuing Disability Reviews (CDR) for fiscal year 2018,” something not seen since 2002.
Advocates are undoubtedly seeing more of these cases, either at the Disability Hearing Officer (DHO), or face-to-face reconsideration level, or at the ALJ level. And advocates have probably also noticed that many of the cases are not properly developed. In particular, the evidence that lead to the initial award of benefits may not be included in the record. Without this Comparison Point Decision (CPD) evidence, it is difficult or impossible to make an accurate finding of medical improvement, which is, of course, vital to the congressionally mandated medical improvement review standard for CDRs. Instead, all too often, CDR cases are devolving into little more than second guesses of the initial awards, especially in cases involving mental health issues. Individuals whose initial award were based on an Intellectual Disabilities are particularly at risk, since the testing originally relied upon was done when they were children, and tests are usually not repeated once they become adults.
Oftentimes, ALJs will make a finding of medical improvement in a CDR by asserting that a claimant who previously was found to meet or equal a Listing no longer meets a Listing. Instead of weighing the previous evidence and applying the special CDR sequential evaluation, the ALJ will make new findings and conclude there must be improvement; the ALJ simply concludes the claimant does not meet a Listing without giving any weight to the CPD and the supporting evidence used to make the prior listing decision. That approach leads to the kind of de novo decision that Congress put a stop to by adopting the medical improvement standard in 1983.
A team of advocates including NOSSCR, NADR, and legal services attorneys recently met with SSA to raise these concerns. They pointed out the agency’s duty to develop the record and include the CPD, which SSA acknowledges is required under existing policy per 20 C.F.R. §§ 404.1594 and 416.994a.
Advocates with CDR cases should request the DHO or ALJ include the CPD evidence in the Exhibit file, citing the regulations. In cases currently pending in the Appeals Council where the CPD and supporting evidence were not included in the record, advocates should request immediate remand. If you have such a case and make a demand for remand, please share the outcome with NOSSCR, Kate Lang at Justice in Aging (firstname.lastname@example.org), or Richard Weishaupt at Community Legal Services, Inc. (RWeishaupt@clsphila.org). SSA claims that it cannot identify CDR cases at the Appeals Council level without doing a case by case examination; examples will be extremely helpful in continued advocacy on this issue.