I-5-4-40.Implementation of the Difford Acquiescence Ruling

1. What is the meaning of “final decision” as stated under the “ISSUE” section of the ruling?

The term “final decision” was used in the ruling to differentiate between the initial determination of cessation and the subsequent determination or decision on appeal that becomes administratively final. As used in the ruling, “final decision” refers to the administrative determination or decision that becomes final because further administrative review is not requested or (in the case of review by the Appeals Council) is requested but not granted. Because an adjudicator does not know at the time of making a determination or decision whether it will be appealed, he or she cannot know whether his or her determination or decision will become administratively final. In implementing the ruling, the determination or decision made at any given level of administrative review should be treated as if it will become a final determination or decision.

2. Does the ruling apply to title XVI claims?

No. In title XVI claims, if a claimant again becomes disabled during the pendency of an appeal, he or she is not required to file a new application (20 CFR § 416.305(b)). Accordingly, because existing regulatory policy with respect to title XVI claims is already consistent with the court's decision in Difford, the ruling does not apply to title XVI claims.

3. If a claimant's insured status expires before the date of the Administrative Law Judge's (ALJ's) or Appeals Council's decision, must the ALJ or Appeals Council rule through the date of the decision?

No, unless disability continues or cessation is appropriate but the claimant becomes disabled again before expiration of insured status. The Difford opinion and the AR do not alter the statutory requirement that a title II disability claimant be insured in order to become entitled. Under the Difford AR, if cessation of a prior period of disability is confirmed, a claimant will not be found eligible for a subsequent period of disability if he or she did not become disabled again until after the date last insured (as determined after taking account of all prior periods of disability and updates to a claimant's earnings record). Therefore, in the situation just described, it would serve no purpose to make findings regarding the claimant's impairments or ability to work after the date last insured. As in any case in which the claimant was last insured at some point in the past, the ALJ or Appeals Council must consider any evidence of the claimant's condition after expiration of insured status to determine whether a particular degree of severity can be “related back.” If onset of a subsequent period of disability can not be established prior to expiration of insured status, the ALJ or Appeals Council will only rule through the date last insured. If the ALJ or Appeals Council finds that the claimant did become disabled again before expiration of insured status, the ALJ or Appeals Council must rule through the date of the decision.

4. If a claimant again becomes disabled during the pendency of an appeal, must he or she file a new application to become reentitled to a period of disability and disability insurance benefits?

No. The ALJ or Appeals Council will state in the decision the month that the claimant's disability ended, and indicate, pursuant to the Difford AR, the month the new period of disability began, and the intervening months of nondisability. The effectuating component will implement payments accordingly.

5. How does the ruling apply to claimants who move into or out of the Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee) during the pendency of an appeal of a medical cessation?

The ruling applies to claimants who reside in the Sixth Circuit at the time of adjudication. If the claimant first becomes a Sixth Circuit resident when the Appeals Council is deciding whether to grant a request for review, the ruling is applicable and the Appeals Council should either remand for Difford consideration or issue a decision in accordance with the AR.

If the claimant is not a Sixth Circuit resident at the time of filing a request for review, the Appeals Council will nonetheless take action on the request in light of Difford if the claimant was a Sixth Circuit resident at the time of the ALJ's decision and did not receive the benefit of the ruling.

6. What effect does Difford have on the Appeals Council's decision whether to review a case?

Difford has no effect on the Appeals Council's decision whether to review other than requiring the Appeals Council to consider whether the ALJ correctly applied the ruling. The Appeals Council's deliberations concerning whether to review a medical cessation case in the Sixth Circuit, including the consideration of new evidence, will be in accordance with existing regulatory standards. Thus, in deciding whether to grant a request for review, the Appeals Council will not consider evidence that does not relate to the period on or before the date of the ALJ's decision. If the ALJ correctly applied Difford and there is no basis for review on any other issue, the Appeals Council will deny review, making the ALJ's decision the final decision of the Secretary.

7. What actions are appropriate if the Appeals Council decides to review a Difford case?

If the Appeals Council decides to review a Difford case, it may:

• dismiss a request for hearing;

• remand;

• issue a fully favorable decision; or

• issue a decision finding that the claimant again became disabled if the disability began as of or before the date of the ALJ's decision and continues through the date of the Appeals Council's decision.

If the Appeals Council decides to review a case and is not prepared to dismiss the request for hearing or issue a decision as described above, the Appeals Council must remand the case, vacating the prior hearing decision and requiring a new decision.

8. Does the Difford AR apply to medical cessation cases being reviewed as a result of the Disability Benefits Reform Act of 1984?

Yes. Adjudicators must apply Difford to their review of any remaining medical improvement class member claims in which the class member resides in the Sixth Circuit. It is the state where the claimant resides at the time of adjudication (see question and answer 5), not the state in which the class action originated, that determines whether Difford applies. Thus, Difford would apply to the claim of a Lopez (Ninth Circuit) class member who now resides in Tennessee, but would not apply to a Samuels (Sixth Circuit) class member's claim if the Samuels class member now resides in California.