Should Approved Claimant Report New Medical Problems to Social Security During Continuing Disability Review?
Posted Dec 20 2008 6:46pm
I don't get a lot of questions about "continuing disability reviews" (CDR). Here is one that raises an important issue. For those not familiar with the term, a CDR is the process by which Social Security evaluates approved claimants to confirm that they still meet the requirements for disability under Social Security's rules.
Sometimes, judges will specifically provide for a review in 12 months. The official Social Security disability web sites provides that all cases are to be reviewed every 36 months (although it has been my observation that the 36 month reviews have been performed at random). Although I have not seen any regulations to this effect, I suspect that the cases which are reviewed may be ones where improvement might be most likely. For example, if your approval is based on a condition that could be corrected by (invasive) surgery, your case might be flagged for review.
You should also understand that disability attorneys like me rarely get involved in CDR cases. Why? In a CDR case there are no "past due benefits" involved meaning that I cannot accept a CDR case on a contingency contract. The legal work that must be done, however, is basically the same as what I would do for a new applicant. Even if I was to agree to represent a claimant in a CDR for a flat fee of $2,000 or $3,000, most CDR claimants do not have this kind of money available to pay a lawyer.
The good news here is that once you have been approved, the burden falls on Social Security to prove to a judge that you no longer qualify. As long as you have continued to seek medical treatment and as long as applicable diagnostic testing does not show a significant improvement, you should have a good chance at winning. Social Security also looks at your earnings record to see if you have been working. The biggest CDR risk for a disability claimant would be someone who:
has not sought regular medical treatment
has earnings from part time work or regular work attempts
has medical records that show an improvement in his/her condition
has references to "malingering" or "drug seeking behavior" in his/her medical record
This morning, I received an interesting question from a lady who wrote me about a CDR issue. Here is the question:
Jonathan, thanks for your informative blog. I've receiving SSDI for over 3yrs now for various physical disabilities. Now neurogenic bladder requiring intermittent self-catheterization clean at home 4-5x a/day. Urologist&nurses explained to me outside my home catheterization must be sterile (lying down) and I wouldn't be able to share a bathroom with lots of other people due to increased risks of UTI's due to cath procedures. Is this something I need to report when my CDR comes due?I also have other medical diagnosis I didn't when awarded SSDI originally. All affect my ability to work negatively. How does this affect my CDR/SSDI? Thanks, J.
Here are my thoughts: J did not say whether she has seen improvement in the various physical issues that resulted in her original favorable disability determination. For sake of argument, let's say that J was approved for disability based on back pain and over the years, her condition has improved as the result of surgery, physical therapy or pain management.
I think that in such a situation J would be well served in reporting this "new" condition to Social Security. If J's original condition has improved significantly, there is an increased possibility that Social Security might attempt to cut her off - but having evidence of a new, equally disabling condition should preserve her benefits. J should seek assistance from his urologist in the form of a functional capacity form (or a detailed letter) that identifies specific activity limitations arising from his condition.
In this case, J's need for a sterile restroom might very well eliminate a large percentage of jobs out there, but it might not eliminate every one. Another factor that could help here is the time. If the limitation is both (1) needing a sterile restroom to self catheterize, and (2) needing an unscheduled 20 to 30 minute break to perform this procedure three or four times during the workday, I think that most vocational witnesses would conclude that the job base for individuals with these restrictions is extremely limited.
If I was advising J, I would provide SSA with evidence documenting the continuing limitations arising from the conditions that supported the original disability determination. In addition to that, I would provide to Social Security information showing that a new condition with its own limitations has arisen and now creates additional impediments to work performance.
Have you faced a continuing disability review? What were your experiences? Do you agree with my response to J's questions? Please use the comment box to add to this discussion.