SSR 82-66: Titles II and XVI: Establishing the Cessation Date in a Continuing Disability Case
PURPOSE: To state the policy for establishing the date of a medical cessation or a cessation based on work activity and for determining when a retroactive cessation may apply as a result of a continuing disability investigation (CDI).
CITATIONS (AUTHORITY): Sections 216(i), 223(d), and 1614(a) of the Social Security Act, as amended; Regulations No. 4, Subpart P. section 404.987-404.995, 404.1530, 404.1579, 404.1586, 404.1588, 404.1591, 404.1594, and Regulations No. 16, Subpart l, sections 416.930, 416.986, 416.988, 416.991, 416.994, and 416.1487-416.1494.
INTRODUCTION: This program Policy Statement states the general rule for establishing a current cessation date in most medical cessation may apply. These include cases involving reports of earlier medical cessation a return to work in a medically diaried case, and work activity that demonstrates an ability to do substantial gainful activity (SGA). In addition, a retroactive cessation date may be established where the beneficiary fails to cooperate or fails to follow prescribed treatment, or where his or her whereabouts are unknown. This program Policy Statement also explains how the establishment of a retroactive date of cessation may be limited by the rules of administrative finality.
Establishing the Date of a Medical Cessation
Historically, whenever the Social Security Administration (SSA) found that the beneficiary's impairment was not of sufficient severity to prevent SGA and medical and vocational evidence indicated that the disability or blindness had ended some tim in the past, SSA would establish a retroactive cessation date. However, it was often difficult to accurately establish a past date on which disability or blindness ended. Because of the nature of the evidence relied on to establish a date of a medical cessation, a determination of retro active cessation could (and often was) made even though the beneficiary may not have been fully aware that at an earlier point in time he or she had the capacity to engage in SGA. Given the complexity of the medical evidence, and the imprecision often involved in selecting a specific cessation month, the application of a retroactive cessation date often appeared to operate unfairly against beneficiaries who, during the retroactive period, believed in good faith that their disability continued. In March 1982 the Commissioner of Social Security announced a change of position regarding the processing of title II and title XVI medical cessation cases. Under the change of position, the month of cessation in medical cessation cases generally will now coincide with the month in which the notice of the proposed cessation, i.e., the 10-day advance notice letter (title II cases) or The Notice of Planned Action (title XVI and concurrent title II/title XVI cases) is mailed to the individual. There are, however, exceptions to this rule which are described below.
Disability Cessation When a Retroactive
Cessation Date May be Appropriate
A. Report of Earlier Medical Cessation
A beneficiary may report that at an earlier date he or she was informed by the treating physician that he or she ha regained the capacity to return to work. In other cases, the treating physician may voluntarily report that the beneficiary was informed at an earlier date he or she had the capacity to return to work. Every beneficiary is furnished with the booklet "Your Social Security Rights and Responsibilities," which explains the individual['s responsibilities for reporting a change in his or her medical condition. Therefore, when there is no doubt that the beneficiary was aware that he or she was able to work, but failed to timely report this change, a retroactive cessation will still be applicable was made these cases, cessation will be as of the month the individual was made aware he or she had regained the capacity to engage in SGA. However, a retroactive cessation date will not apply if there is a substantial conflict between statements from the treating physician and the beneficiary regarding the individual's awareness of the capacity to work or objective medical evidence to support the statement from the treating physician establishing a retroactive cessation date, is lacking or inadequate.
B. Return to Work in a Medically Diaried Case
In certain "clear cut" cases, cessation may be found in a medically diaried case without current medical development as of the first month the beneficiary returned to full-time work with no significant medical restriction. The basis for the cessation is that the individual, by returning to full-time work, has clearly demonstrated that he or she does not have an impairment of sufficient severity to prevent SGA.
The evidence obtained during the initial case processing revealed that the individual had an impairment with marked functional restriction which was expected to continue for functional restrictions which was expected to continue for more than 12 months. Recovery was expected approximately 18 month later onset of disability and a medical reexamination was established accordingly. Upon notice by the individual of a return to work, a CDI was initiated. The investigation disclosed that 16 months after onset the individual returned to full-time work. It also established that the individuals's doctor approved this return to work without imposing any medical restrictions. Cessation based on capacity for SGA without additional development will be found in the month the individual returned to work. The finding of cessation will be based on the impairment not being severe rather than the work performed. Under the law, services rendered may not be used as the sole basis for termination until a trial work period (TWP) is completed.
Note: In no instance may a "clear cut" cessation be made where the individual is receiving vocational rehabilitation (VR) services at the time of the CDI since participation in VR constitutes evidence inconsistent with such a determination.
In all cases where the evidence in the file is inconclusive (e.g., the individual is working part-time, alleges continuing disability, is receiving VR services or is working contrary to medical advice), the "clear-cut" cessation will not apply and medical development will be undertaken to resolve the issue of medical recovery. If the individual described in the example above had returned to part-time work, medical development would have to be undertaken because it is not clear that the individual has the capacity for full-time work. If medical development is required, a retroactive cessation will not apply.
If it is found that the individual is working despite a continued disabling impairment and such work is within the TWP, a finding of continuance will be made. In no instance will the work by itself be considered a basis for cessation until the expiration of the TWP as long as the impairment remains disabling.
C. Failure to Cooperate
There are instances when an individual, whose continuing disability is being investigated, fails to cooperate when asked to furnish necessary evidence or to appear for a physical or mental examination.
Cessation based on failure to submit evidence of continuation of disability as evidenced by an individual's failure to cooperate, is justified when (1) there is a continuing disability issue, (2) the disability issue cannot be resolved with the evidence of record, (3) efforts to have the beneficiary cooperate in obtaining the necessary evidence have been appropriate and complete but unsuccessful, and (4) the evidence indicates, that in spite of such efforts and without good cause, the beneficiary's failure to cooperate continues.
In these instances, disability will be found to have ceased in the month specified by SSA in the first written request made to the beneficiary indicating that unless he or she cooperated by a specified date, benefits might be terminated due to failure to submit evidence necessary for determining whether disability continues.
D. Whereabouts Unknown
There are instances when an individual cannot be located at the time of a CDI. In these cases, every reasonable effort will be made to locate individual. However, if the individual still cannot be located, a determination of cessation of disability may be appropriate.
Cessation based on failure to submit evidence of continuance of disability as evidenced by an individual's whereabouts being unknown is justified when (1) a continuing disability determination is necessary, (2) a decision cannot be made on the basis of the medical and other evidence or record, and (3) following appropriate attempts to locate the beneficiary, his or her whereabouts remain unknown.
In these instances, disability will be found to have ceased effective with the first month in which there was knowledge that the beneficiary's whereabouts were unknown but no earlier than the month in which a continuing disability issue arose.
Note: In title XVI and concurrent title II/title XVI cases, benefit payments are suspended when a recipient's whereabouts are unknown. A title XVI determination will not be prepared and no recipient notification is required.
E. Failure to Follow Prescribed Treatment
An individual who fails without justifiable cause to follow treatment prescribed by a treating physician which can be expected to restore the individual's capacity to work, cannot by virtue of such failure be found to have a continuing disability.
Cessation based on failure to follow prescribed treatment is justified when (1) the evidence establishes that the individual's impairment precludes engaging in any SGA or, in the case of a disable widow or widower, that the impairment meets or equals the Listing of Impairments, (2) treatment which is clearly expected to restore capacity to engage in Sga has been recommended by a treating physician, and (3) the evidence of record discloses that there has been refusal to follow prescribed treatment without justifiable cause.
In these instances, a finding of cessation will be made with the month in which the evidence clearly established the individual's unjustified failure to follow the prescribed treatment (see SSR 82-59 (PPS-78: Failure to Follow Prescribed Treatment).).
F. Work Activity Only
If medical recovery is not an issue and the beneficiary has engaged in work activity, a cessation will be found effective with the first month the beneficiary engages in SGA following completion of 9 months of trial work. If the beneficiary is not entitled to a TWP, cessation will be found effective with the first month the beneficiary engages in SGA.
Retroactive Cessation Involving Reopenings
Retroactive cessation determinations must not conflict with the rules of administrative finality. These rules impose certain time limits that SSA will follow in reopening and revising prior disability or continuing disability determinations or decisions which have become final, and that are explained in Regulations No. 4, sections 404.987-404.995 (title II), and Regulations No. 16, sections 416.1487-416.1494 (title XVI). The provide that an initial, reconsidered, or revised determination, or a decision or revised decision, that is other wise final, may nevertheless be reopened:
- Within one year from the date of the notice of the initial determination, for any reason;
- Within 2 years from the date of the notice of the initial determination in a title XVI case, upon a finding of good cause;
- Within 4 years from the date of the notice of the initial determination in a title II case, upon a finding of good cause.
- ("Good cause" exists where new and material evidence is furnished after notice to the party of the determination or decision, or a clerical error was made, or there was an error on the face of the evidence on which the determination or decision was made. "New and material evidence" includes any evidence which was not part of the record when the final determination or decision was made, but which relates back to the date of the original determination or decision, and which shows facts that may result in a conclusion different from that originally reached had the new evidence been available at the time of the original determination.)
- At any time in a title XVI case if the determination or decision was obtained by fraud or similar fault, or at any time in a title II case under certain specified conditions including fraud or similar fault, or a clerical error or error on the face of the evidence on which the determination or decision was based and the determination or decision was unfavorable to the claimant in whole or in part.
Therefore, in a retroactive cessation situation, in the absence of fraud or similar fault, title II determinations or decisions that a person was under a disability during a certain period may only be reopened and revised to a finding that the person was not under a disability during that period under the 1-year or 4-year rule, and title XVI determinations or decisions may only be reopened and revised in this manner under the 1-year or 2-year rule. For example, if an initial title II determination was approved in September 1974 finding that a claimant was under a disability as of that date and the notice of this initial determination was sent October 3, 1974, and a continuing disability investigation was conducted in 1980 which resulted in new evidence on the claimant's employment in 1974, any determination of disability cessation which would result from this new evidence would be subject to the 4-year time limit for reopening that determination. In the cited case, the determination which was prepared on the basis of new evidence in 1980 could not reopen and revise the September 1974 determination, in the absence of fraud or similar fault. The earliest possible retroactive month of cessation would be October 1974.
Where administrative finality prevents reopening of a prior decision, cessation may be established as of any month after the prior decision in which new evidence establishes that the claimant was not disabled. However, the fact of cessation must be established by the new evidence, i.e., evidence that was not considered n making the prior determination. In establishing cessation after a prior determination, it is not necessary to find a change in the circumstances of the claimant's employment. For example, a title II determination of continuance was made and the notice sent December 1975, following the completion of a TWP. New evidence provided by a December 1980 CDI showed that the claimant was working at an SGA level in January 1976 and that this work continued. It is not necessary to review the prior determination, or the facts supporting it, to see if there has been a change in the circumstances of employment.
However, even if the new evidence provided by the CDI in December 1980 showed that the prior determination was incorrect, e.g., that the claimant had performed the same SGA level work prior to January 1976 claimant had performed the same SGA level work prior to January 1976 as he had from January 1976 on, the date of cessation would still be January 1976, because, under the 4-year reopening rule, a determination prepared in 1980 could not reopen and revise the December 1975 determination, in the absence of fraud or similar fault. If however, the new evidence provided by the CDI in December 1980 related only to the claimant's work in December 1975 or earlier, such a CDI could not be the basis for a finding of cessation in January 1976, or in any other month.
Redetermination is an evaluation of the title XVI factors of eligibility since the last determination or redetermination, e.g., residence and living arrangements, earned and unearned income, resources, etc. However, a CDI to evaluate disability/blindness. Therefore, the retroactive determination of disability/blindness cessation is not normally limited by the finality of a previous title XVI redetermination. The retroactivity of the date of cessation of disability will be limited only by the evidence in most cases. The rules of administrative finality affect the retroactivity only when there has been a redetermination decision that only evaluated the nondisability factors of eligibility, but also included a determination on the disability/blindness factors of eligibility. Where such a redetermination established continuing disability/blindness eligibility, the date of cessation of disability cannot be established on or before the date of the redetermination, unless the redetermination decision can be reopened under the rules of administrative finality.
Mr. Wilson's application for Supplemental Income (SSI) was allowed on January 2, 1975, with the date of onset being established as of November 15, 1974, the date on which his application was filed. On April 10, 1980, the Social Security district office (DO) obtained evidence that Mr. Wilson's disability had ceased as of December 1975 by virtue of SGA. While there had been intervening redeterminations of eligibility and/or payment amount, there had been no intervening determination of continuing disability/blindness. Therefore, the DO prepared a determination ceasing Mr. Wilson's disability as of December 1975, and terminating title XVI eligibility as of the last day of February 1976.
Mr. Watson's disability as established for title XVI purposes with a date of onset of November 15, 1974, the date on which his application was filed. In December 1975, Mr. Watson reported that had returned to work as of February 1975. On February 15, 1976, the DO prepared a determination that a TWP had been completed but the work was not SGA and his disability was continuing. A title XVI continuance letter was released to the claimant on March 1, 1976.
On April 10, 1980, the DO obtained new and material evidence that since December 1975, Mr. Watson's activity was SGA. In this case, while the retroactivity of the date of cessation was not limited by the intervening redeterminations of eligibility and/or payment amount, retroactivity was limited by a previous determination of continuance which could not be reopened under title XVI rules of administrative finality because the notice of this initial determination of continuance which could not be reopened under title XVI rules of administrative finality because the notice of this initial determination of continuance had been sent more than 2 years before. The retroactive date of cessation was therefore limited to the date of the prior determination of February 15, 1976, and the DO prepared a determination ceasing M. Watson's disability as of March 1976, and terminating title XVI eligibility as of the last day of May 1976.
EFFECTIVE DATE: The policies covered by this Program Policy Statement have been in effect for many years except for the policy to have the month of cessation in a majority of medical cessation cases coincide with the month in which the 10-day advance notice letter (title II cases or the Notice of Planned Action (title XVI and concurrent title II/title XVI cases) is mailed to the individual. This change of position became effective in March 1982.
CROSS REFERENCES: Program Operations Manual System Part 4, Chapter 2, and Part 04, Chapter 005, Subchapter 04.