AR 92-2(6): Rescinded 2/21/2013 by Federal Register Vol. 78, No. 35, page 12120
EFFECTIVE/PUBLICATION DATE: 03/17/92
AR 92-2(6): Difford v. Secretary of Health and Human Services, 910 F.2d 1316 (6th Cir. 1990), reh'g denied, February 7, 1991 — Scope of Review on Appeal in a Medical Cessation of Disability Case — Title II of the Social Security Act.
Whether in deciding the appeal of a determination that an individual's disability has medically ceased, the adjudicator must consider the issue of the individual's disability through the date of the Secretary's final decision, rather than deciding the appeal based on the issue of continuing disability only through the date of the initial cessation determination.
Section 223(f) of the Social Security Act (42 U.S.C. 423(f)), 20 CFR 404.1579, 404.1589, 404.1590, 404.1594.
Sixth (Kentucky, Michigan, Ohio, Tennessee)
Difford v. Secretary of Health and Human Services, 910 F.2d 1316 (6th Cir. 1990), reh'g denied, February 7, 1991.
APPLICABILITY OF RULING:
The court's holding affects only cases at the disability hearing/reconsideration, Administrative Law Judge and Appeals Council levels. Therefore, this Ruling applies only to determination or decisions made at those levels.
DESCRIPTION OF CASE:
On October 19, 1976, the plaintiff applied for disability benefits. It was determined that he was disabled effective April 2, 1976. In June 1982, he was notified of a proposal to terminate his benefits because current medical records showed that he was no longer disabled. Benefits were terminated as of August 31, 1982. The plaintiffs request for reconsideration was denied and he did not pursue any further appeal.
The plaintiff filed a new application on May 16, 1983. This application was denied initially and throughout the administrative review process, culminating in the Appeals Council denying the plaintiff's request for review on April 13, 1984. The plaintiff did not file any action in court to challenge the final decision of the Secretary.
In June 1984, the plaintiff obtained employment. On January 2, 1985, he injured his knee and back in an accident at work. He had surgery on his right knee in January 1985 and became unemployed.
Because the plaintiff was a member of the Holden class (Holden v. Heckler, 584 F.Supp. 463 (N.D. Ohio 1984), an Ohio class action which successfully challenged the Secretary's former policies and procedures used in continuing disability reviews), he received notice in February 1985 that he had the right to apply for reinstatement of his disability benefits and to have him claim reviewed under the appropriate medical improvement standard. He requested review of his case on March 19, 1985. The Secretary determined, both initially and on reconsideration, that the original termination decision was correct. On January 28, 1988, after considering only the evidence of the plaintiff's condition through June 1982, an Administrative Law Judge issued a decision finding that the plaintiff's disability had ceased as of June 1982 because his condition had medically improved. The Appeals Council denied the request for review. Accordingly, the Administrative Law Judge's decision became the final decision of the Secretary. The plaintiff then sought judicial review.
In affirming the Secretary's cessation decision, the district court noted that the plaintiff had worked for six months after it had been determined that his disability had ceased. The court found that the plaintiff's knee and arthritis impairments as of the time of the Administrative Law Judge hearing were a direct result of his 1985 job-related accident. Therefore, the court concluded that the relevant time frame for consideration of cessation of disability was 1976-1982. The plaintiff then appealed to the United States Court of Appeals for the Sixth Circuit.
The Sixth Circuit stated that the case turned "on the correct interpretation of certain provisions of § 2(a) of . . . Pub. L. No. 98-460, 98 Stat. 1794 (1984), codified at 42 U.S.C. § 423(f), which sets the standard of review for termination of disability benefits." Those provisions, in relevant part, provide as follows:
A recipient of benefits under this title or title XVIII based on the disability of any individual may be determined not to be entitled to such benefits on the basis of a finding that the physical or mental impairment on the basis of which such benefits are provided has ceased, does not exist, or is not disabling only if such finding is supported by —
(1) substantial evidence which demonstrates that —
(A) there has been any medical improvement in the individual's impairment or combination of impairments (other than medical improvement which is not related to the individual's ability to work), and
(B) the individual is now able to engage in substantial gainful activity . . .
Any determination under this section shall be made on the basis of all the evidence available in the individual's case file, including new evidence concerning the individuals prior or current condition which is presented by the individual or secured by the Secretary. (Emphasis added.)
The court held that:
the plain meaning of statutory references to "now" or "current" compels a consideration of an individual's ability to perform substantial gainful activity at the time of the hearing. . . . We note, however, that interpretation of § 423(f) to require assessment of Difford's condition as of the 1988 hearing does not preclude a finding by the Secretary that the length of time of Difford's employment . . . is a period of non-disability for which benefits may be withheld.
910 F.2d at 1320, emphasis added.
STATEMENT AS TO HOW DIFFORD DIFFERS FROM SOCIAL SECURITY POLICY:
SSA interprets the term "current," as used in the statutory and regulatory language concerning termination of disability benefits, to relate to the time of the cessation under consideration in the initial determination of cessation. In making an initial determination that a claimant's disability has ceased, SSA considers the claimant's condition at the time SSA is making the initial determination. In deciding the appeal of that cessation determination, the Secretary considers what the claimant's condition was at the time of the cessation determination, not the claimant's condition at the time of the disability hearing/reconsideration determination, ALJ decision or Appeals Council decision. However, if the evidence indicates that the claimant's condition may have again become disabling subsequent to the cessation of his or her disability or that he or she has a new impairment, the adjudicator solicits a new application.
The Sixth Circuit Court of Appeals has found that, in reviewing a cessation determination, SSA must consider the claimant's condition through the date of the Secretary's final determination or decision.
EXPLANATION OF HOW SSA WILL APPLY THE DECISION WITHIN THE CIRCUIT:
This Ruling applies to cases involving claimants who reside in Kentucky, Michigan, Ohio, or Tennessee at the time of the determination or decision at the disability hearing/reconsideration, the Administrative Law Judge or Appeals Council levels.
In making a determination or decision concerning whether or not an individual's disability has ceased, the disability hearing officer, Administrative Law Judge or Appeals Council may not limit consideration to the period of time ending with the date disability was initially determined to have ceased, but must also give consideration to the individual's ability to perform substantial gainful activity through the date on which the appeal determination or decision is being made.
The adjudicator will consider whether the initial cessation determination was correct. If the adjudicator determines that the initial cessation was correct, he or she will then consider whether the claimant has again become disabled at any time through the date of his or her determination or decision as a result of a worsening of an existing impairment or by the onset of a new impairment. If, on the other hand, the adjudicator determines that the initial cessation determination was not correct, the adjudicator will determine if the evidence establishes medical improvement as a basis for termination of benefits as of any time through the date of his or her determination or decision. In every case where it is established that the claimant was not continuously disabled through the date of the appeal determination, the adjudicator will fully explain the basis for the conclusions reached, and will state the month that the claimant's disability ended, and, if applicable, the month a new disability began and any intervening months of nondisability.