Social Security Ruling, SSR 13-3p; Appeal of an Initial Medical Disability Cessation Determination or Decision, 12130-12132 [2013-03914]

Agencies

• Social Security Administration

[Federal Register Volume 78, Number 35 (Thursday, February 21, 2013)]
[Notices]
[Pages 12130-12132]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03914]


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SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2011-0106]


Social Security Ruling, SSR 13-3p; Appeal of an Initial Medical 
Disability Cessation Determination or Decision

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Ruling (SSR).

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SUMMARY: We are giving notice of SSR 13-3p. This SSR changes the period 
an adjudicator must consider when deciding an appeal of a medical 
cessation determination. This Ruling also clarifies how this policy 
applies at the Appeals Council (AC) level when the AC denies a request 
for review or issues a remand or dismissal order. The adjudicator will 
consider a beneficiary's disability through the date on which we make 
the appeal determination or decision.

DATES: Effective Date: February 21, 2013.

FOR FURTHER INFORMATION CONTACT: Susan Dunigan, Office of Disability 
Programs, Social Security Administration, 6401 Security Boulevard, 
Baltimore, Maryland 21235-6401, (410)-966-5671 or TTY (800) 966-5609.

SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do 
not require us to publish this SSR, we are doing so under 20 CFR 
402.35(b)(1).
    Through SSRs, we make available to the public precedential 
decisions relating to the Federal old age, survivors, disability, 
supplemental security income, and special veterans benefits programs. 
We base SSRs on determinations and decisions made at all levels of 
administrative adjudication, Federal court decisions, Commissioner's 
decisions, opinions of the Office of the General Counsel, or other 
interpretations of the law and regulations.
    Although SSRs do not have the same force and effect as statutes or 
regulations, they are binding on all of our components. 20 CFR 
402.35(b)(1)
    This SSR will be in effect until we publish a notice in the Federal 
Register that rescinds it, or publish a new SSR that replaces or 
modifies it.

(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social 
Security--Disability Insurance; 96.004 Social Security--Survivors 
Insurance; 96.006 Supplemental Security Income; 96.020 Special 
Benefits for Certain World War II Veterans.)

    Dated: February 12, 2013.
Michael J. Astrue,
Commissioner of Social Security.

Policy Interpretation Ruling

    Title II: Appeal of an Initial Medical Disability Cessation 
Determination or Decision.
    Purpose: This SSR explains how we will review an initial medical 
cessation determination or decision when we receive a timely request 
for administrative review of the cessation determination or decision. 
In this SSR, we are adopting as our nationwide policy the holding in 
Difford v. Secretary of Health and Human Services, 910 F.2d 1316 (6th 
Cir. 1990). We have applied the holding in that decision under 
Acquiescence Ruling (AR) 92-2(6) to cases involving beneficiaries 
residing in States within the Sixth Circuit (Kentucky, Michigan, Ohio, 
Tennessee). Because this SSR addresses the issue decided by the Difford 
court, in this issue of the Federal Register, we are also publishing a 
notice rescinding AR 92-2(6) as obsolete in accordance with our 
acquiescence regulations, 20 CFR 404.985(e)(4).\1\
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    \1\ This SSR applies only to determinations or decisions finding 
that a beneficiary is no longer entitled to benefits because the 
physical or mental impairment on the basis of which the benefits 
have been paid has ceased, does not exist, or is no longer 
disabling. We call this type of finding a medical cessation 
determination or decision. This SSR does not apply to disability 
cessations based on substantial gainful activity.
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    Citations: Sections 223(f) of the Social Security Act, as amended; 
Regulations No. 4, Subpart D, section 404.316; Subpart J, sections 
404.902, 404.905; and Subpart P, sections 404.1579, 404.1589, 404.1590, 
404.1593, and 404.1594.
    Pertinent History: Section 223(f) of the Social Security Act (Act) 
sets forth the standard of review for determining whether an 
individual's disability has medically ceased. This provision provides, 
in relevant part, as follows:
    ``(f) 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; or
    (2) substantial evidence which--
    (A) consists of new medical evidence and a new assessment of the 
individual's residual functional capacity, and demonstrates that--
    (i) although the individual has not improved medically, he or she 
is nonetheless a beneficiary of advances in medical or vocational 
therapy or technology (related to the individual's ability to work), 
and
    (ii) the individual is now able to engage in substantial gainful 
activity, or
    (B) demonstrates that--
    (i) although the individual has not improved medically, he or she 
has undergone vocational therapy (related to the individual's ability 
to work), and
    (ii) the individual is now able to engage in substantial gainful 
activity; or
    (3) substantial evidence which demonstrates that, as determined on 
the basis of new or improved diagnostic techniques or evaluations, the 
individual's impairment or combination

[[Page 12131]]

of impairments is not as disabling as it was considered to be at the 
time of the most recent prior decision that he or she was under a 
disability or continued to be under a disability, and that therefore 
the individual is able to engage in substantial gainful activity; or
    (4) substantial evidence (which may be evidence on the record at 
the time any prior determination of the entitlement to benefits based 
on disability was made, or newly obtained evidence which relates to 
that determination) which demonstrates that a prior determination was 
in error.
* * * * *
    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 individual's prior or current condition, which 
is presented by the individual or secured by the Commissioner of Social 
Security. Any determination made under this section shall be made on 
the basis of the weight of the evidence and on a neutral basis with 
regard to the individual's condition, without any initial inference as 
to the presence or absence of disability being drawn from the fact that 
the individual has previously been determined to be disabled.''

Introduction

    Since Congress enacted section 223(f) of the Act in 1984, we have 
interpreted the words ``now'' and ``current'' in that section of the 
Act to mean that, generally, when deciding the appeal of a medical 
cessation, an adjudicator would consider what the beneficiary's 
condition was at the time of the initial cessation determination. The 
adjudicator would not consider the beneficiary's condition at the time 
of the reconsideration or disability hearing officer's determination, 
the administrative law judge's (ALJ) decision, or the Appeals Council's 
(AC) decision. If the adjudicator determined that the medical cessation 
date was appropriate, but evidence also showed that the beneficiary had 
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, the adjudicator would 
solicit a new application for title II disability benefits. In title 
XVI cases, a new application is not required if a recipient of 
supplemental security income payments again becomes disabled while an 
appeal is pending (20 CFR 416.305(b)).
    In Difford, the United States Court of Appeals for the Sixth 
Circuit interpreted the references to ``now'' and ``current'' in 
section 223(f) of the Act to require that when we review a medical 
disability cessation determination or decision, we must consider 
whether the beneficiary was disabled at any time through the date of 
the adjudicator(s)'s final determination or decision. Under Difford, as 
applied in AR 92-2(6), when we review a determination or decision that 
disability has medically ceased, the adjudicator must consider the 
individual's disability through the date of his or her determination or 
decision, rather than determining only whether the individual's 
disability had ceased at the time of the initial cessation 
determination. We are now revising our interpretation of section 223(f) 
of the Act to adopt the policy contained in Difford AR as our 
nationwide policy.
    In this SSR, we use the term ``final decision'' to differentiate 
between the initial cessation determination and the subsequent 
determination or decision on appeal that becomes administratively 
final. As used in this Ruling, ``final decision'' refers to the 
administrative determination or decision that becomes final because the 
beneficiary does not request further administrative review, or when the 
AC issues a decision. ``Final decision'' does not refer to cases where 
the AC denies a request for review or issues remand or dismissal order. 
At the time an adjudicator makes a determination or decision at the 
reconsideration or hearing level, the adjudicator does not know if the 
beneficiary will request an appeal. Therefore, the adjudicator cannot 
know whether the determination or decision will become the final 
determination or decision. In implementing this Ruling, we refer to a 
determination or decision made at any administrative review level as 
though it will become a final determination or decision.
    Policy Interpretation: This SSR revises our policy to provide that 
we will use the same timeframe for determinations or decision we make 
in both title II and title XVI medical disability cessation cases 
reviewed at the reconsideration and hearings level(s) of our 
administrative review process. Under the policy we are adopting in this 
Ruling, the adjudicator reviewing the medical cessation determination 
or decision will decide whether the beneficiary is under a disability 
through the date of the adjudicator's determination or decision.
    When the AC receives a request for review of a hearing decision, 
the AC generally considers evidence that relates to the period on or 
before the date of the ALJ's decision. When deciding whether to grant a 
request for review of an ALJ's decision in a medical cessation case, 
the AC 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 
this Ruling and there is no basis for review on any other issue, the AC 
will deny the request for review. If the AC grants the request for 
review, vacates the ALJ's decision and remands the medical cessation 
case to the ALJ for further proceedings, on remand, the ALJ will apply 
the provisions of this Ruling. However, in a medical cessation case 
when the AC grants review and exercises its authority to issue a 
decision, then it will determine the beneficiary's disability through 
the date of the AC decision, which will be our final decision.
    In addition, a timely request for administrative review of a 
disability cessation determination or decision, including cases where 
we find good cause for late filing, constitutes a protective filing of 
an application permitting a determination of disability through the 
date of the final determination or decision on appeal.
    Adjudicators use the date of the initial request for review of the 
disability cessation determination as the filing date for a new period 
of disability. We establish a new period of disability if the 
beneficiary again became disabled as a result of a worsening of an 
existing impairment or by the onset of a new impairment before the date 
of the determination or decision on appeal, and if all other 
requirements for establishing a period of disability, including the 
duration and insured status requirements in title II cases, have been 
met. If cessation of a prior period of disability is confirmed, a 
beneficiary 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).
    Since this Ruling revises how we consider the title II appeal (or 
in concurrent cases, the title II portion) of a medical disability 
cessation case, it eliminates the need for a new claim for 
reentitlement in title II cases. The adjudicator will evaluate 
disability through the date of the appeal determination or decision 
regarding the beneficiary's medical cessation and possible 
reentitlement, thereby eliminating the need for filing a new 
application for reentitlement in title II cases.
    Adjudicators will consider the following in administrative review 
of determinations or decisions that a beneficiary's disability has 
medically ceased:

[[Page 12132]]

     If the adjudicator determines the initial medical 
cessation determination was correct, he or she will then determine 
whether the beneficiary has again become disabled at any time through 
the date of his or her determination or decision because of a worsening 
of an existing impairment or the onset of a new impairment, if all 
other requirements for establishing a period of disability, including 
the duration and insured status requirements are met.
     If the adjudicator determines that the initial disability 
cessation determination was not correct, he or she will determine if 
the evidence establishes medical improvement as a basis for cessation 
of disability at any time through the date of final determination or 
decision.
     In every case where we find that that the beneficiary was 
not continuously disabled through the date of the appeal determination 
or decision, the adjudicator must fully explain the basis for the 
conclusion reached in the determination or decision. The adjudicator 
will state the month the beneficiary's disability ended, and, if 
applicable, the month in which a new period of disability began and any 
intervening months during which there was no disability.
     If the beneficiary's disability has medically ceased, the 
determination or decision must specifically address the initial 
cessation determination and the beneficiary's eligibility (or 
ineligibility) for a new a period of disability through the date on 
which the appeal determination or decision is being made, or, if 
earlier, through the date last insured.
    Effective Date: This Ruling is effective upon publication in the 
Federal Register.

[FR Doc. 2013-03914 Filed 2-20-13; 8:45 am]
BILLING CODE 4191-02-P