I received a letter from SSA saying that they are reviewing my current SSDI benefit and possible to end my benefits due to substantial work between 2004 and now.   I would like to have your advisement how I should handle this and what options I can do to keep my SSDI benefits.   I only have Medicare insurance and living with AIDS.   Also, I am deaf.

My response: Social Security is saying that you engaged in "substantial activity" from 2004 to the present.  "Substantial activity" is a term of art and refers to activity that is work or work like activity.   Substantial activity can be work for pay, volunteer work, school or other similar activites.

In a CDR context, Social Security is most likely looking at your earnings record.  As you know, when you work your employer files copies of all W-2's and 1099's generated on behalf of employees.  If you were working and your employer was withholding taxes as the law requires there is a written record of your earnings.

I have posted a table on this blog setting out what you can earn and still fall below SGA (substantial gainful activity).   Social Security will look at your earnings month by month to calculate how many months you exceeded SGA.  You could, in theory, could be asked to repay SSA for each month that you received earnings over SGA and also collected SSDI.

Note that a couple of other concepts apply hear.  After you are deemed disabled, you are eligible for a trial work period of 9 months in which you can earn over SGA but still receive full benefits.  Beyond that, you are placed into an extended period of eligibility (EPE) for disability for an additional 36 months.  While in your EPE, you will be paid for months where you were under SGA and not paid for months over.  So, your overpayment problem will reflect amounts paid to you during your EPE in months when you were over SGA.

If you take the position that you were not actually performing work at SGA level despite payment at or over SGA amounts, you will need to put on evidence to convince a judge that your benefits should not be terminated.  This evidence can include your testimony, testimony from any employer and medical evidence.   For example, if a relative gave you a "job" for the purpose of supporting you and getting a tax deduction and building up your Social Security account, and you were not doing anything of value you might have an argument.

Post from: Social Security Disability Blog

Approved Claimant Returns to Work – Are there any Defenses to a Continuing Disability Review or Termination Action by SSA

What about unhelpful medical records?  I see this frequently in cases where there was a workers' compensation case.  "Company doctors" often minimize symptoms and generate records indicating that a claimant has the capacity to return to work.   Other times I see unhelpful records in cases where my client just did not "click" with his or her physician or psychiatrist.

One of my blog readers wrote me to ask about his obligation to submit unhelpful records in the context of a continuing disability review:

I have been on SSI for 8 years for mental illness. One recently former psychologist would say I was never disabled while my psychiatrist, and my new psychiatrist (the present one is moving) say I am disabled. The psychologist and my new psychiatrist say not to put the former psychologist's name on the Review form: ssa-454-bk.  Am I allowed legally to leave her name off? What consequences whould there be. There is nothing on the form that says I can't omit information (no perjury warning). What are my rights, and if I put her on the form will my new psychiatrists' opinions outweigh the old?

Here is my response: I do not believe that a claimant (or a claimant's attorney) has any obligation to submit unhelpful medical records.   This issue periodically comes up on listservs that go to claimant's lawyers and the general consensus among most attorneys seems to be that an attorney's obligation is to represent his clients zealously, meaning that there is no affirmative burden for that lawyer to submit unhelpful information.  I do know some lawyers, however, who take the opposite position, but it appears to me that they are in the minority.

In my opinion, this does not mean that you can lie during a hearing.  If a judge sees a reference to the unhelpful doctor in other records and asks you about it, you should tell the truth.  Unless the missing records constitute a huge black hole in your records, as a practical matter hearing judges usually do not have the time or inclination to hold up a decision to get those records.

Post from: Social Security Disability Blog

Are Claimants Required to Submit Unhelpful Medical Records

In theory, every Social Security disability case will be subject to a CDR.  In reality, because of the current backlog, I rarely hear from my clients that their cases are being reviewed.   The few cases that do seem to end up in a CDR typically involve younger claimants.

I am not usually called upon to handle CDR cases because a CDR representation does not involve past due benefits, and therefore cannot be handled under a contingency contract.   Very few of my clients have the funds available to pay a lawyer for representation.  A CDR hearing is very much like a disability determination hearing, involving medical record collection and submission, and representation at a hearing and often a CDR representation takes as much or more time than a disability determination.

Although CDR's are still somewhat rare because of the current backlog in disability determination cases,  Social Security still conducts continuing disability reviews on some cases.   Here is an email that I received from a blog reader regarding such a review:

I am 21 yrs. old, have been on SSI 2 yrs. for major depression and social anxiety disorder, and am expecting a CDR in december.  My condition has not changed much from when I was approved.   I want to go to college or JobCorps in the next few months(program lasts 2-3 yrs.), but I worry if I do well in a program like that, social security will consider me "signaficantly improved" at the CDR and cut me off.  What does SSI consider "signaficantly improved" in regards to mental illness?   I want to work and going to school will help me do that.Will I be penalized for trying to work out my issues (and succeeding)?

Here is my response: I am thinking that you are a prime candidate for continuing disability reviews over the next several years.   You are obviously very young to fall within the disability process and your impairment – a form of mental illness – often triggers disability reviews.  Hopefully, your treating psychiatrist will find the right combination of drugs that will allow you to return to the workforce.

"Significantly improved" means that your capacity to function in a work environment has been restored.   Remember, Social Security defines work capacity in terms of your ability to get through an 8 hour workday, 5 days a week.   You would no longer be considered disabled if you could perform a simple, unskilled "warm body" type of job, such as serving as a textile inspector, a circuit board assembler, or a surveillance system monitor.   It does not matter that you would not earn very much at one of these kinds of jobs or that there is no such job near where you live.   The only question – could you perform one of these simple, unskilled jobs if it was made available to you.

I think that if you enroll in college and are able to maintain a regular course load or even something close to a regular course load, Social Security will consider that activity as "substantial activity."

Similarly, if you attend job corps and can function in activities that are equivalent ot full time work, Social Security will argue that disability benefits should be terminated.  You should note that Social Security has a number of work incentive programs such as the "Ticket to Work" program that will continue to pay you while you train and can ease your transition back into the work force.

If you attempt to attend college or if you attempt to participate in a work training program and you cannot sustain the activity because of your mental health issues, such failures will serve as evidence in your favor.  This assumes that you continue to seek regular mental health treatment and you have a physician or therapist who will support you.

I think that you are wise to plan for the possibility that Social Security will try to cut you off, and, of course, you will ultimately make more money if you work as opposed to collect disability.  Best of luck to you.

Post from: Social Security Disability Blog

How Do Job Training Programs Affect Continuing Disability Reviews

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.

Post from: Social Security Disability Blog

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