What should you do if you receive a notice from Social Security that they have reviewed your case and determined that your medical condition has improved such that you are no longer disabled, and that your benefits will be cut off as of a certain date?
This type of termination is being processed under something called a continuing disability review (CDR) and we are seeing more and more of these CDR termination notices.
First of all, do not panic. Under Social Security’s rules you will have an opportunity to contest SSA’s termination decision. You can also choose to continue receiving your benefits while the CDR evaluation process drags on – this can take a year or longer.
Second, you need to take action fairly quickly. If you want your benefits to continue while the CDR appeal process drags on, you need to file a benefit continuation election statement. The language for this statement is contained in Social Security’s Program Operations Manual System (POMS) here: https://secure.ssa.gov/poms.nsf/lnx/0412095171 but there does not appear to be an actual form for this statement.
You can put your statement on form SSA-795 but this would require a good bit of typing or writing. Here is a sample form requesting that SSA continue with both your SSDI benefits and your Medicare coverage. Your requirements may be different so you can modify this form as you wish.
This benefit continuation election statement must be filed with Social Security within ten (10) days from the date you receive your notice of benefits termination. SSA will assume that you have received your letter 5 days after the date on the letter unless you can prove otherwise.
I have seen cases where SSA dated a letter but did not mail it out for several weeks. Letters can also get lost in the mail. If you receive a termination letter dated more than 5 days from the date of receipt you could have a big problem. It can be almost impossible to prove when you received a letter. I don’t think that SSA deliberately delays sending out termination letters, but if your letter gets lost in the mail, you will have very little recourse.
Assuming you get your letter in time to file your benefit continuation election, you should file your election immediately. If possible, hand deliver the form to your local SSA office and get a receipt. You can also fax or mail your election letter but you would be taking a risk that your election letter will be lost or delayed.
Understand that if you elect to have your benefits continue, and you lose your CDR appeal, you will have to pay back any benefits received after the proposed termination date. You can request a waiver of this “overpayment” or bankruptcy on it, but you would have to deal with this debt in some fashion.
In addition to filing an election to continue receiving benefits (if you so choose), you will also need to file an appeal – a request for reconsideration. This is the same reconsideration form and medical report that you likely completed back when you originally filed for benefits. Here is a link to the forms you need to request a reconsideration of your termination of benefits. Your reconsideration appeal must be filed within 60 days from the date you received your termination notice. The reconsideration paperwork includes:
- Form SSA-561 Request for Reconsideration
- Form SSA-3441 Reconsideration Medical Appeal
- Form SSA-827 Authorization to Disclose Info to SSA
Your reconsideration appeal will likely take 4 to 6 months to be decided. If your appeal is denied, you will need to request a hearing. The forms you need are here, and they include:
- Form HA-501 Request for Hearing
- Form SSA-3441 Disability Report Appeal
- Form SSA-827 Authorization and Release
Your hearing appeal must be filed within 60 days from the date you receive your reconsideration denial.
Should You Hire a Lawyer to Help with Your CDR?
You can hire a lawyer to help you with your reconsideration appeal or with your hearing appeal paperwork and, eventually, your hearing before a judge. You may face a problem regarding how to pay your lawyer.
If you have elected to continue receiving benefits, there will obviously be no past due benefits so you cannot hire a lawyer on a “no fee unless you win” basis. In a normal disability application, lawyers are paid 25% of past due benefits with a cap of $6,000 in a fee agreement case. Since basically the same work is involved in a CDR hearing, you can expect most lawyers to charge several thousand dollars for a CDR representation.
You may need to set up a payment plan with your lawyer early in the process so you can have your lawyer paid by the time your hearing approaches. The hearing in a CDR case is exactly like a hearing in a regular disability case, meaning that you would be at a real disadvantage if you attempt to present your case without an attorney.
Disability judges expect that anyone appearing in their courts will be responsible for updating your exhibit file with evidence, obtaining work capacity opinion evidence from your doctors, presenting an opening statement, developing your case for the judge, cross examining a vocational and/or medical expert and making legal arguments to the judge.
Are You Likely to Face a Continuing Disability Review?
While Social Security has increased the number of continuing disability reviews and efforts to terminate benefits, many of these actions seem to be focused on claimants who were approved based on “invisible” illnesses like:
- chronic fatigue
Another trigger for review and termination seem to be cases where an approved claimant is not seeking on-going medical care, or when care is limited to visits to a family doctor or internist and not to a specialist.
These are the same areas of concern that we see with new applicants for benefits. You stand a much better chance at winning if your medical condition can be visualized with an objective test like an MRI, CT, ultrasound or other medical test, and if your record shows treatment and support from a specialist as opposed to a family doctor.
There is nothing you can do to predict if your case will be flagged for review but you should be aware that reviews do seem to be increasing and this trend is likely to continue. Obviously if your condition does improve you should explore Social Security’s return to work programs like Trial Work Periods and Ticket to Work, and you should continue to try to improve your capacity to work by following your doctor’s recommendations and seeking on-going care.