September 18, 2014

Should Approved Claimant Report New Medical Problems to Social Security During Continuing Disability Review?

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.

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Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.

Comments

  1. All originally approved medical conditions are the same or worse. The urinary condition is a result of nerve damage from the back condition. I have a medical team I see throughout the year. Thanks

  2. Can a person win a disability case on bad nerves/anxiety/depression and going for regular medical treatment for that?

  3. Since I work for a legal services program, we do help our clients (people with HIV/AID)S with continuing disability reviews. The form specifically asks about new health problems, and I don’t think there’s any downside in reporting them. I would certainly do so, with lots of vivid detail, when the new condition has such profound effects on the ability to engage in substantial gainful activity as J’s new condition does.

    There’s actually a section in the POMS that says people with HIV aren’t supposed to have CDRs. I’ve stopped several in their tracks by citing it.

  4. Mary Seroski says:

    I’m curious about the age factor. My husband has been told he will have a CDR in 3 to 5 years. By at least 3 years he will be over 55 years of age. He has fibromyalgia, hypertension, sleep apnea, and severe depression. He is in constant pain in his legs and back. He has not reached a point where he qualifies for Medicare so he is reluctant to go to doctors more than twice a year.

    So will the age of 55 be a factor for him when his CDR comes? What do you think?

  5. T. Schmidt says:

    I just recieved my letter approving my ssdi via an “otr”. For continuing care and documentation do I still need to go to the doctor every two months? Or what is acceptable once you have been approved?

    Thanks,

  6. i have been trying to get my ssd started now they want me to see two of the ssd doctors is thi normal

  7. I started receieving SSD last year, because of having Multiple Sclerosis. I was diagnosed with this when I was 21 years old. I worked in the Medical field for amost 30 years. I was in relapsing and remitting stage. Two years ago I was in an auto accident and had compression fractures from C3 thru C6. Now with that being said my M.S. is now in what is called secondary – progressive. If I try to take a class in college, and use the Disability tuition waviver will I lose my SSD check, and be no longer considered disabied?

  8. In response to J’s post on December 14, 2008:
    Assuming you have been seeking treatment, and you have medical doctors to confirm that your original condition still exists and is still “the same or worse”, then you should still receive benefits. If you’re urinary problem is related to the condition, your medical records should (and ideally would) indicate this, and (as Jonathan Ginsburg noted) describe any additional severities. Upon a full CDR, a note from a doctor describing in detail the treatment and severity and functional limitations would be helpful. Any evidence from other sources (therapists, surgeons, physical rehabilitation centers, chiropractors—if they are not contradictory—and IF you did see any—wouldn’t hurt. Of course, as Jonathan Ginsburg noted, any evidence of malingering or drug seeking would not look good for your case. Any side effects of treatment should be noted, and it is, of course, helpful that you attempt to follow treatment and work with your medical professionals!
    ——-
    In response to Lynn’s post on December 17, 2008:
    Yes, it is possible to receive benefits on the basis of anxiety disorders or affective disorders or combination of both—if the symptoms are severe enough and are **functionally limiting** enough to meet or equal the requirement s of a “Listing” or allowable on a “medical-vocational basis” or meet a mental RFC for “less than unskilled work”—or even combine with a physical limitation and meet these standards—and are **documented** acceptably according to SSA standards. SSA regulations require that mental disorders have documentation by a licensed psychiatrist (M.D. or D.O.) and/or PhD.-level licensed clinical psychologist.
    As far as your situation **personally***, one would have to see your medical records and situation.
    ————
    In response to Mary Seroski’s post on February 20, 2009

    If hypertension continues to result in related health problems that are documentable, these must be documented. Personally I would understand his unwillingness to see a doctor more than twice per year. However, you mention that he has not yet qualified for Medicare. If I were him, since the CDR is “3 to 5 years, and Medicare is available after 2 years, I would start seeing doctors more regularly after Medicare is granted. Preferably, he would be seeking needed treatment for his depression, even low-cost counseling of some type in meantime is better than nothing, and even though “psychotherapy notes” cannot be released, the therapist could help by writing detailed documented letter of course and nature of depression and treatment, and ideally, with Medicare, he could be referred to a rheumatologist to discuss prior and current and continuing need for diagnosis and treatment. The more specific description of his pain and location, how it feels, how it affects him, etc. and examination and such, the need for and response to treatment, the better; as well as his other ailments by other physicians. The age should be taken into account. I would recommend that his doctors document his age in his records (55-year-old male; 56-year-old male) as appropriate, just for emphasis.
    —————————————–
    In response to T. Schmidt’s post on May 26, 2009

    It depends what your condition(s) is/are, and how often it/they require(s) treatment. For example, amputees, may require virtually no regular treatment, except for pain or infections. But for most cases, probably AT LEAST once every 3 months. Some people need medication changes and evaluations based on problems, so their condition naturally warrants more “regular” visits, and this would be expected. Some condition, maybe as few as once or twice a year. Maybe you could visit a doctor and ask for an opinion.
    As a suggestion, hopefully you could find a decent g.p or internist who is knowledgeable about your conditions, and if you need to see him/her for any reason, ask him/her about your condition(s) and opinions, need for referral /follow-up with a specialist, etc.
    ——–
    In response to Tammy’s post on July 9, 2009

    This is definitely not unheard of, especially if the SSA/DDS needs specific and/or more detailed information/documentation from 2 different specialists. Of course, make sure these specialists are relevant to the ailments from which you are disabled, and that you make clear to these doctors the severity, and that you do not exaggerate but do not undermine your limitations. Make sure what you say is consistent with what you have reported to your own treating physicians.
    ———————————————–
    In response to Dee’s post on August 12, 2009

    No—well, not necessarily. And probably not from taking one class. Taking ONE class is NOT equivalent to working full-time or performing “substantial gainful activity”. Of course, if you receive any “reasonable accommodations” under the Americans with Disabilities Act (ADA) of 1990 (through the schools Disabled Students Program), I would be sure to have your doctor document in her/his records, and possibly get a letter from your instructor/professor, and/or Disabled Students Program counselor.
    Of course, if you are undergoing a vocational training program under a private Employment Network or received services under a public Vocational Rehabilitation Program**, or have attempted to, **Within the last 12 months** when undergoing a full CDR (Continuing Disability Review), you are required to reveal that information. If you had started but stopped, you are required to explain why. So , if your class is part of such a program, then you are required to explain.
    Of course, you are required to explain how you spend a typical day, so if school is part of it, then you need to list it. However, taking ONE class ALONE would not be THE factor that denies you benefits upon review. If you need special accommodation to get to class, this should be documented—again, by your doctor—and mentioned by you, too. If this is not designed to get you a job or vocational training, this should be mentioned by you, too. And if you do not complete this class for a reason related to your disability, then, this, too, should be mentioned by you.
    Other factors documented by you and your medical professionals, and perhaps others, should reveal the severe physical limitations that limit your ability to perform any substantial gainful activity, DESPITE the class you are taking, which would, if determined so, allow benefits to continue.
    —————

  9. Hi, just found your site.. I cannot find on my original letter of approval what I was approved on, no numbers, nothing. So.. I do know that I was approved for three years..
    I understand that I will have a CDR? I continue in pain management, my condition is Chiari 1 Malformation, and assorted other conditions. I have done some mystery shopping, which requires some time looking on the computer, then 10-15 minutes in a store, then at my leisure to write a small report. I get paid 15-20 dollars to submit the reports. I am considered a Independent Contractor, but I have never received a 1099 from the companies.
    I have never received more than 600 in any given month, and some months I don’t do any work. The most I have ever earned is 450 in a month and that was spread over 10 companies. I get paid via paypal.
    Do I need to be concerned? I haven’t filed taxes yet, but the companies have my SSN.
    Will SS know of this and consider this valid work attempts? I have only done these shops to earn some extra money during the months that I needed extra money.
    I also now have a service dog, and I didn’t before. If I have a CDR, that should be in March 2010. My husband is my Rep Payee, but works out of state. What would I do to have him complete the report?
    I know. Hard questions. I was approved first time through. I have had brain surgery, and also fused from the skull to c4 which is hard to move my head and I have significant pain issues.
    Thanks for your time. Great site!
    KM

  10. Is it OK to have a Physical Therapist fill out an Fit For Work RFC form? Is it accepted as credible by SSA?

  11. Joe Siudock says:

    Good morning Applied for SSD November 4th, 2010. Disabled by State of Florida Retirement and Federal judge Conway in ADA also stated I was disabled by law. Well SSD ignored their own blue book Briddle diabetes A1c, three labs 11.4, 10.4 and 10. Acidisos since last August 2008. kicking ketones every report. Ignored profound motor and sensory polyneuropathy, Five endrocrinogists reports since last August. Ignored my general doctor reports , my foot doctor reports and to compound their behavior ignore two medical source statements from two different doctors then sent me to bias phyicans, they work for the school board on contract as well as SSD to claim I needed to return to teaching as they were trying to fire me last October and I take away state disability retirement. I thought they had a blue book but they put me on their grid. Every doctor on their list after their ten minute exam stated I need to be placed on insulin pump and refuse to look at any medical files. I thought my phyician reports had values. They were really clear.

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