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After a favorable decision

Answers to 25 questions

By After a favorable decision

Frequently Asked Questions After a Favorable Social Security Disability Benefits Decision

Do I have to do anything such as visit the Social Security Office or complete some forms in order to get paid my Social Security disability benefits?

No. The Social Security Administration (SSA) will process your claim and send you your benefits automatically. But if you have children who were under age 18 (or under age 19 and still in high school) at any time after your “date of entitlement,” it will be necessary to put in an application for them to receive benefits; but your own benefits will still be processed automatically.

How long will it take for SSA to pay me?

As a rule, it takes one to two months for back benefits to be paid and monthly benefits to begin in a Social Security disability case in which no SSI application was ever filed. (When there is SSI involved it takes considerably longer.)

But these are only general rules. In some cases, it takes as long as 3 months for back benefits to be paid. When it takes more than 90 days for back benefits to be paid in a Social Security disability case, it may mean that there has been a bureaucratic mix-up somewhere in the system. In that case it will be necessary to take some sort of action to deal with the delayed benefits.

If 90 days pass from the date of the decision and I am still not paid my back benefits, is there anything that can be done to speed up payment?

It is possible that your attorney may be able to do something if you are not paid after 90 days. Be sure to telephone your attorney to explain that you haven’t gotten paid after about three months. It may be necessary at that point to contact the payment center.

How far back will my benefits go?

Your benefits should begin with the month of the “date of entitlement” in your case. Many people ask why benefits don’t begin on the date they were found disabled. Social Security disability benefits never begin on the date one is found disabled because of the waiting period of five full calendar months. Another rule limits payment of back benefits to 12 months before the date of the application. Therefore, your benefits begin either 12 months before the date of application or five full months after the date you were found to be disabled, whichever is later.

What will the amount of my monthly benefits be?

The amount of your first month’s benefits is shown in your Social Security file. However, the Social Security Administration may recalculate your benefit amount before it pays you. If the Social Security Administration recalculates, it may come up with a higher benefit amount because, for example, all of your earnings might not have been posted when the original calculation was made. Also, there are cost of living increases that are applied every December.

Will I receive a notice from the Social Security Administration explaining my benefits?

Yes. That notice is usually called a Notice of Award. This notice will show the “date of entitlement” and the amounts of benefits for all months of back benefits. It will show the total amount of benefits to be paid to you. It will show the amount of benefits withheld for direct payment of attorney’s fees. It may also give you information about your Medicare eligibility and monthly Medicare premium. It may also give you some information about when to expect a “continuing disability review.”

When will I get the Notice of Award?

The Notice of Award will come around
the time that you receive your check for past-due benefits or direct deposit of benefits if you signed up for direct deposit. The Notice of Award often comes after you receive your past-due benefits.

Should I sign up for direct deposit?

Direct deposit is a great convenience. It is very dependable. You can sign up by contacting your local Social Security office. But if you don’t sign up before your disability hearing then it might be too late to have your back benefits paid by direct deposit because the Social Security Administration may have already sent out your check for back benefits.

There are a couple of problems with direct deposit of past due benefits. SSA sometimes has people sign up for direct deposit right when they apply for benefits. Sometimes, people forget that they even signed up and they keep looking for a check in the mail when the money has already been deposited to their bank account. Worse yet, sometimes people close the bank account that they told the Social Security Administration they wanted to use for direct deposit. If this were to happen to you, you would find that it will take a while to straighten this out. It might be necessary for you to go to the Social Security office to update the Social Security Administration on your current account information.

If l get paid first, should I wait until I receive the Notice of Award before I cash the check or spend my past-due benefits?

There is no problem with cashing the check. But it is best that you deposit your check in an interest bearing savings account and not spend it all until you receive the Notice of Award so that your attorney can make sure that attorney’s fees were withheld and that you have not been overpaid. It is also a good idea to make two photocopies of the check before you deposit it. Send one copy of the check to your attorney and keep the other for your records.

Why would there be a problem if I were overpaid?

If you are paid too much, the Social Security Administration almost always figures it out eventually. Then, after you have already spent all of the money, it will send you a letter demanding that you repay the overpayment. If you do not have the money to repay the full amount of the overpayment, the Social Security Administration may threaten to cut off your checks until the overpayment is recouped. Usually it will accept a more reasonable reduction of your monthly checks, but this is still a hassle and you may have trouble making ends meet during the time that your check is reduced. Under some circumstances it may be possible to get repayment of all or part of the overpayment waived; but this is not something to count on.

When will my regular monthly benefits begin?

Usually regular monthly benefits begin the month after you receive your check for past-due benefits, although occasionally people get a check for regular monthly benefits first. Your check will be sent out to arrive on the second, third or fourth Wednesday of the month, depending on what day of the month you were born. The check will pay benefits for the previous month. Thus, for example, the check for January’s benefits will come in February.

Will I be eligible for Medicare?

Medicare eligibility begins after you have received 24 months of Social Security disability benefits. Note that to receive Part B of Medicare (which pays for doctor visits), you pay a premium that will be deducted from your Social Security disability monthly check.

Disabled people with relatively low income and assets may be eligible for other programs that pay for medical expenses not covered by Medicare and/or pay the Medicare premium for you. To find out if you are eligible for any such programs, you need to check with your county welfare department.

If you have health insurance coverage already, you need to figure out how Medicare works with your health insurance. Many health insurance policies state that Medicare is to provide the primary coverage with your present health insurance paying only for what Medicare doesn’t cover. You need to check with your health insurance company when you get your Medicare card.

The cover sheet of the favorable decision says that the Appeals Council may review the decision “on its own motion.” What does this mean?

In a very small number of cases the Appeals Council in Falls Church, Virginia, will decide on its own to take away benefits awarded by the decision of the administrative law judge. If it is going to do this, the Appeals Council will almost always send you a notice within 60 days of the date of the judge’s decision. (In an extremely small number of cases the Appeals Council will reverse a decision after the 60 days have run.) This is rare, so it is unlikely that the Appeals Council will do this in your case; but if it happens you will have to work out with your attorney how to deal with it.

I understand that I should not spend all of my back benefits until we figure out if attorney’s fees were withheld. Does it happen very often that attorney’s fees are not withheld?

No. Not very often. But it does happen once in awhile.

What’s the difference between attorney’s fees and expenses?

In addition to the fee, attorneys ask you to pay them back for the cost of medical records or reports, and other things that they paid to get in your case. The Social Security Administration will not pay for these things nor will it send your attorney any money for such expenses out of your funds.

Will the check for attorney’s fees be sent out around the same time that I get my check for back benefits?

Yes.

Will I have to pay taxes on the Social Security disability benefits I receive?

Probably not, but this depends on the amount of your total income. Most people won’t have to pay taxes on their Social Security disability benefits. Couples whose combined incomes exceed $32,000 and individuals with income exceeding $25,000 will pay income tax on a portion of their Social Security disability benefits. The IRS has an odd way of figuring out total income for this rule. The IRS uses adjusted gross income as reported on Form 1040, plus one-half of the total Social Security benefits received for the year, plus non-taxable interest.

Single people with incomes over $34,000 and married people with incomes over $44,000 pay tax on a higher percentage of their Social Security disability benefits.

Here’s an odd thing: People whose Social Security benefits are reduced because of the worker’s compensation offset or offsets for other public disability benefits must count the amount of Social Security benefits not paid when determining taxability of their benefits. But if a child receives benefits on a parent’s account, those benefits count only for determining if the child must pay taxes on Social Security benefits received.

If you fall into the group of people who may be taxed on Social Security disability benefits only because you received a large check for past-due benefits during the year, you still may not have to pay tax on your Social Security benefits. Th
e IRS has set up a way to recalculate your back benefits and consider them received in the year you should have gotten them rather than in the current year. Ask the IRS for a copy of Publication 915.

If your Social Security disability benefits end up being taxable, note that a portion of the attorney’s fee may be deductible. However, this depends on the “2% of adjusted gross income” ceiling on miscellaneous itemized deductions. If you have to repay a long term disability insurance carrier because of receipt of Social Security disability benefits you may get special tax relief. Ask the IRS for Publication 525.

The Social Security Administration is supposed to send you a Form 1099 by February 1st of the year after your back benefits are paid. If you will have to pay taxes on your Social Security disability benefits, be sure to compare the information on the Form 1099 with the information on your Notice of Award. The Form 1099s from the Social Security Administration are often wrong. You will need to bring any errors to the attention of your tax preparer. For this reason it is important for you to keep track of how much you actually receive from the Social Security Administration.

Tax law is very complex. Please talk to a tax specialist if you have any questions about taxes on your Social Security benefits.

What is a “continuing disability review”?

The Social Security Administration is required periodically to review the cases of all people who are receiving disability benefits. Usually cases are reviewed every three years; but some cases are reviewed more often. Sometimes the decision will direct the Social Security Administration to conduct a review at a certain time. Often the Notice of Award will tell you when to expect a review.

What will I have to do for a “continuing disability review”?

You will be asked to complete a form about your medical treatment, any vocational training or work and how your condition has changed since the time you were found eligible for disability benefits.

What if the Social Security Administration finds that my disability has ceased but I’m still not able to work?

The notice, which you will receive from the Social Security Administration following a “continuing disability review,” will explain your appeal rights. Read this notice carefully. If you appeal within ten days of the date you receive the notice your benefits will continue during your appeal. So be sure to act quickly.

Is there anything that I can do now to help ensure that my benefits will continue?

The very best thing you can do is to continue seeing your doctor. A lot of people with long-term chronic medical problems stop seeing their doctors because no treatment seems to help. This is a mistake for two reasons. First, it means that when the Social Security Administration conducts a review, no medical evidence will exist to show that your condition is the same as it was when you were first found disabled. Second, and perhaps even more importantly, doctors recommend that even healthy people after a certain age periodically have a thorough physical examination. This is even more important for people who already have chronic medical problems.

Is the Social Security Administration going to make it as difficult to keep my benefits as it did to get them in the first place?

No. Not at all. The disabilities of the vast majority of people are found to continue at the initial evaluation. Few people have their benefits stopped.

Is there anything I can do to make dealing with the Social Security Administration easier?

You shouldn’t expect as many problems dealing with the Social Security Administration while receiving benefits as you had trying to get benefits in the first place. Sometimes, though, some people have problems. Here are some things you can do to try to minimize the hassle:

  • Keep all decisions, letters, and notices you receive from SSA in a safe place.
  • Read everything you get from the Social Security Administration. The booklets that come with award letters and notices are well written and informative.
  • When reading the booklets you receive from the Social Security Administration, pay special attention to the kind of information you are required to report to the Social Security Administration. Report promptly and in writing and keep a copy with your Social Security papers.
  • Don’t necessarily believe everything they tell you at the Social Security Administration 800 number. If you have an important issue to take up with the Social Security Administration, sometimes it is better to go to your local Social Security Office.

Delayed benefits

By After a favorable decision

Delayed Social Security Disability Benefits

When It Takes Too Long for Benefits to Be Paid

If several months after you have been awarded Social Security disability benefits, the benefits still have not been paid to you, there are three ways to approach the problem:

  1. Contact a congressional office. Because Social Security benefit issues come up so often, each Representative and Senator has a staff member who specializes in dealing with the Social Security Administration. A congressional inquiry is often an effective way to speed up payment.
  2. Either you or your attorney can discuss your case with a supervisor at your local Social Security office. The supervisor may contact the payment center to arrange for prompt payment.
  3. Either you or your attorney can send a fax to the payment center. If your case is being paid by the Office of Central Operations (OCO) in Baltimore, fax a letter directly to one of the processing units, which are called modules or “mods.” Modules are assigned according to your Social Security number.

The Social Security Administration recommends that you or your attorney send a fax inquiring about your case if you have not received a Notice of Award within 45 days of the date of the favorable decision on your disability hearing. If there is no response, 45 days after the first fax, send a second fax to the same fax number addressed to the attention of the module manager. Be sure to enclose a copy of the first fax. If there is still no response 45 days after the second fax, send a third fax to the same number addressed to the attention of the Division Program Manager. Enclose copies of earlier faxes. If there is still no response, 45 days later send a fax to the Center for Program Support at 410-966-0715 enclosing copies of all previous correspondence.

If you are under age 55 and your disability case went to federal court, payment will probably be handled at OCO in Baltimore by the Special Appeals and Examining Section (SAES), not one of the regular mods. The SAES telephone number is 410-966-8411, fax 410-966-1998.

If you reside in a foreign country, payment may be handled by the Office of International Operations, which is sometimes referred to as PC 8. The fax number is 410-965-8020.

If you cannot figure out who to contact, try telephoning the Social Security Administration’s Office of Public Inquiries, 410-965-7700.

If your benefits are to be paid by one of the regional payment centers, it usually works best to fax a letter to the payment center. Faxing works better than mailing letters.

If you are receiving disabled adult child’s benefits, payment will be handled by OCO in Baltimoreif your wage earner parent is receiving disability benefits and is under age 55. If your disabled wage earner parent is over age 55 or is retired or deceased, payment is handled by a regional payment center. However, if you are also receiving benefits on your own account, jurisdiction for the entire case may remain with OCO in Baltimore.

Widow(er)’s benefits are paid from regional payment centers. When a widow(er) who is under age 55 is also entitled to benefits on his or her own account, jurisdiction can be split between OCO and one of the regional payment centers. The widow(er) may get a monthly check issued from each location. In these dual entitlement cases, you need to use your deceased spouse’s Social Security number to inquire about your widow(er)’s benefits and your own Social Security Number to inquire about payment based on your own earnings record.

SSI payments are processed by the local Social Security field office. If there is a problem with payment, try to contact the SSI claims representative who is handling the case. If that doesn’t work, contact a supervisor at the field office or the field office manager. If the manager cannot solve the problem, the Social Security Administration recommends that you contact the executive officer in the Social Security Administration regional office.

Questions about working part-time

By After a favorable decision

Working Part-Time After You’ve Been Found Disabled by the Social Security Administration

Is it possible to work part-time and not lose my disability benefits?

Yes. It is possible. However, the full answer to this question depends on how much you earn and what kind of disability benefits you are receiving, either:

  • Social Security disability benefits (sometimes referred to as Social Security Disability Insurance – SSDI), or
  • Supplemental Security Income (usually referred to as SSI) benefits.

If you are receiving Supplemental Security Income and you go to work, the Social Security Administration (SSA) will reduce your SSI benefits by one dollar for every two dollars you earn after the first $65 (or $85 if you have no other income). This means that you could earn so much working part-time that your SSI benefits will stop. But unless your benefits have stopped because of your earnings for an entire year, the Social Security Administration will start up your SSI benefits again if your earnings go down. After a year of receiving no benefits, you’ll have to apply all over again.

If you are receiving Social Security disability benefits and your earnings are below what the Social Security Administration calls the “substantial gainful activity” amount, your benefits will neither stop nor be reduced because of earnings. That is, you’ll continue to get your full Social Security disability benefit while you work part-time. It is also possible to earn more than the “substantial gainful activity” amount and still receive your full benefits during the nine-month trial work period.

How much can I earn per month and still receive my Social Security disability benefits?

You can earn up to the “substantial gainful activity” amount, which in 2016 is $1,130 per month, and still keep your full Social Security disability monthly benefit. The substantial gainful activity amount is an absolute cut-off point. If your countable earnings average more than the substantial gainful activity amount, even $1 more, your Social Security disability benefits will stop after you have used up your nine-month trial work period (and a grace period of three more months), no matter how disabled you are.

If you are going to work part-time and you want to avoid problems keeping your benefits, it is best to keep your income well below the substantial gainful activity amount. In fact, because there are advantages to keeping your income below what SSA calls the “trial work period services” amount, which in 2016 is $810 per month, this is what we recommend if you are receiving Social Security disability benefits. This way you won’t use up your trial work period months; you can save them for later use if you ever decide to try to go back to work full-time.

If your claim is for SSI, the trial work period rules do not apply. For those people already receiving SSI benefits, the substantial gainful activity amount rules don’t apply either.

What are the advantages to keeping income below the “trial work period services” amount?

The trial work period rules allow you to earn any amount per month for nine months and still receive full monthly disability benefits. This lets you test your ability to return to full-time work without having your monthly disability benefits stop. For example, you could go to work full-time for eight months during which time you would get paid for full-time work and receive your Social Security disability benefits too. If at the end of eight months of work you decide that you cannot continue, there is no harm done to your on-going disability benefits. You’ll keep your benefits as long as you don’t medically improve.

However, people often use up their trial work period months by working part-time. Some people, who worked part-time while their claims were pending, are surprised to discover that they used up their trial work period months even before the Social Security Administration found them disabled. If your income exceeds the trial work period services monthly amount (which is $750 in 2013 — it goes up a little most years) for nine months at any time since you applied for benefits, even if those nine months are not consecutive, you will have used up your trial work period. A trial work period month here and a trial work period month there counts as long as all nine months are in any five-year period. Once you use up your nine-month trial work period, it is gone.

People who have already used up their nine-month trial work periods by working part-time are surprised when the Social Security Administration abruptly stops their disability benefits. For example, if your trial work period has already been used up and then you go to work full-time for eight months, your benefits will be stopped after only three months of work. You’ll probably be able to get your disability benefits back if you stop working within three years after you used up your nine trial work period months; but then if you work again at the substantial gainful activity level more than three years after you used up your trial work period, the Social Security Administration is supposed to stop your benefits with the first month of work. If you’re unable to continue working at that point (that is, more than three years after the end of the trial work period), you’ll have more difficulty getting your benefits reinstated.

In short, it is best not to use up your trial work period until you are ready to return to work full-time. Because the trial work period can be valuable, we recommend that you not waste it on part-time work. To keep from wasting the trial work period, you need to keep your monthly income below the trial work period services amount.

When I am trying to keep my income below the trial work period services monthly amount, is it gross income or take-home pay that counts?

Gross income. And that gross income is not averaged over months worked. The trial work period services monthly income rules are very strict. There are no deductions that can be taken against your gross income to reduce it below the trial work period services monthly amount.

If I need more income than the trial work period rules allow, what are the rules for working at less than the “substantial gainful activity” level?

Gross income counts but income is averaged. Theoretically, you get to subtract sick pay, vacation pay, and what the Social Security Administration calls “impairment-related work expenses,” which, as a rule, are the amounts of out-of-pocket payments you make in order to treat your disabling impairment, but there may be some other work expenses that can be deducted too. You’ll need to consult with your attorney or someone at the Social Security Administration about these deductions because many things you might think are deductible, like health insurance, are not deductible. These deductions can be used to reduce your countable income below the substantial gainful activity level. But if you rely on such deductions to keep your income below the substantial gainful activity amount, you’re really living dangerously. It is safer just to use the substantial gainful activity amount as your guideline and make sure your average monthly gross earnings do not exceed this amount.

Is it possible to work part-time at my own business?

It is possible even though the Social Security Administration’s rules allow it to find that a person, who is working part-time in his or her own business and actually losing money (as many businesses owners do when they first open their businesses), is engaging in substantial gainful activity. Benefits can be lost on this basis alone, though this is unusual.

Also, even if you are losing mo
ney but you are working more than 80 hours per month, the Social Security Administration will find that you are performing trial work period services. Thus, you will be using up your trial work period.

When must I report my work income to SSA?

If you are receiving SSI benefits, you must report income you receive in one month by the tenth of the next month.

If you are receiving Social Security disability benefits, the Social Security Administration requires that you report “promptly” when you go to work or start your own business. Thus, you need to tell the Social Security Administration right away that you are trying to work.

But nowhere does the Social Security Administration provide a clear statementwhen you need to send it copies of check stubs and proof of any impairment-related work expenses. Thus, you’re likely to be told different things by different people at the Social Security Administration. The general rule is that you must report earnings early enough to avoid an overpayment. But if you’re keeping your income below the substantial gainful activity amount, you won’t have an overpayment (unless you make a mistake).

When you telephone the Social Security Administration to report that you have begun work, ask when you need to provide income documentation. Because different rules apply, make sure that the Social Security Administration representative understands that you are receiving disability benefits, not retirement benefits. Be sure to get the name and location of the person you speak with. Follow up with a letter to your local office, which explains that you have started working and repeats what you were told about reporting income. Keep a copy of the letter.

Continuing disability reviews

By After a favorable decision

Continuing Social Security Disability Reviews

The Continuing Disability Evaluation Process

Your Social Security disability benefits cannot be terminated unless (with various exceptions) there is substantial evidence that your medical condition has improved and you are now able to engage in Substantial Gainful Activity (SGA).

The evaluation of your medical improvement is accomplished by an eight-step sequential process for Title II that begins (like the five-step sequential evaluation process for initial claims) with “Are you engaging in substantial gainful activity?” In SSI continuing disability review cases, there are only seven steps because the issue of engaging in substantial gainful activity is not included.

The second step of the Title II sequential evaluation process (the first step for SSI) addresses whether your impairments meet or equal an impairment found in the current Listing of Impairments. This is actually a shortcut that allows the Social Security Administration to avoid the issue of whether there has been medical improvement. At this step the Social Security Administration evaluates all impairments, including impairments that arose after the individual was originally found disabled.

It is only after the Social Security Administration addresses whether all current impairments meet or equal the current Listings that it addresses the issue of medical improvement. The medical improvement standard generally requires that there be evidence that (1) there has been medical improvement of your impairments, (2) the medical improvement is related to your ability to work and (3) you are now able to engage in substantial gainful activity.

In order to determine if you are capable of engaging in Substantial Gainful Activity, the sequential evaluation process looks very similar to the sequential evaluation process for initial disability determinations except that the step considering whether all your impairments meet or equal the Listings has already been addressed.

Schedule of Continuing Disability Reviews

Although SSA doesn’t always hold to this schedule, for most people the eligibility for Social Security disability benefits is supposed to be reviewed every three years. These investigations are called “Continuing Disability Reviews” or CDRs.

People with permanent impairments such as amputations or retardation are subject to review every seven years. Claimants with impairments such as fractures that are likely to improve may be scheduled for review within 6 to 18 months of approval of the claim.

Safeguards Against Termination of Eligibility for Disability Benefits

There is no presumption of continuing disability. The statute for Continuing Disability Reviews says:

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.

Because the status can change, Continuing Disability Reviews strike fear in the hearts of disability benefit recipients. However, more than 90 percent of reviews find that the recipient’s disability continues.

Social Security Disability law provided three important safeguards for you: (1) benefit continuation pending appeal; (2) face-to-face reconsideration hearings; and (3) the medical improvement standard.

However, since then Congress has sought ways to encourage those who still qualify for disability benefits to return to work, passing various work incentive legislation, while at the same time urging the Social Security Administration to remove from the disability rolls those who no longer qualify as disabled or worse, those who never should have been found disabled in the first place. The result is a complicated patchwork of incentives and disincentives for beneficiaries to work.

Perhaps as important as anything is that you cooperate with the Social Security Administration because you are required to provide information or attend consultative examinations if requested. Non-cooperation alone can be the basis for finding that disability ended.

Benefit Continuation Pending Appeal

If your eligibility for disability benefits is terminated after a Continuing Disability Review, benefits will usually cease two months after you are sent a cessation notice.

The notice will inform you that you have 60 days to request reconsideration of the decision to terminate benefits. But reconsideration must be requested within 10 days of receiving the termination notice if you want benefits to continue pending the reconsideration determination. Since the Social Security Administration presumes that you receive Social Security notices 5 days after the notices are dated, this means that you have 15 days from the date on the face of the cessation notice to file a request for reconsideration along with a request for continuation of benefits. If you elect to receive continuing benefits, Medicare and Medicaid as well as auxiliary benefits for your children and spouse, if any, will also continue pending the reconsideration determination.

If the request for benefit continuation is filed too late then the Social Security Administration will determine whether good cause exists for failure to timely request benefit continuation.

Similarly, if you receive a reconsideration determination affirming the cessation of benefits, the reconsideration notice will inform you of the right to request an ALJ hearing within 60 days, but if you want benefits continued pending the ALJ decision, a hearing must be requested within 10 days of receiving the reconsideration determination. If you request continued benefits pending an ALJ decision but did not request continuing benefits while the Social Security Administration reconsidered the initial cessation determination, Social Security disability benefits will begin effective the month of the reconsideration determination.

The Social Security Administration takes the position that if Social Security disability benefits are terminated due to your performance of substantial gainful activity (as opposed to a determination that the impairments are no longer disabling or never were disabling), it will not continue benefits during appeal. However, benefits will be continued in SSI and concurrent cases even if termination is due to performance of Substantial Gainful Activity.

If continued benefits are received during an appeal which ultimately proves unsuccessful, the Social Security Administration says that it will ask for repayment of the continued benefits. However, the Social Security Administration says that waiver of repayment of the overpayment will be considered as long as the determination was appealed in good faith. In practice, waivers are freely granted since a recipient who appeals in good faith is without fault and such a recipient usually cannot afford to repay the overpaid benefits.

Face-to-Face Reconsideration Hearings

In cessation cases, you are allowed a face-to-face reconsideration hearing with a disability examiner, usually held at a local Social Security office.

The disability examiners are not ALJs. They are state agency employees responsible for determining eligibility at the initial and reconsideration levels. Examiners do not need to be attorneys.

Face-to-face reconsideration hearings are generally less formal than ALJ hearings. However, procedural rights such as representation, issuance of subpoenas, presentation of witnesses, submission of new evidence, and
so forth are available. If you waive the right to appear at the hearing, the disability examiner will issue a written reconsideration determination based on the information in the case file.

Determination Is Based on Your Current Condition

To make an initial medical improvement determination, the Social Security Administration compares two points in time: the “current” date and the date of the most recent prior decision finding that you were disabled.

Adjudicators are supposed to assess the case based only on your current condition (with certain exceptions). Thus, they are not concerned with figuring out if you have been continuously disabled. Instead, they are allowed to ignore evidence that there may have been a time when you was receiving benefits but may not have been disabled.

If there has been medical improvement, then the Social Security Administration does not concern itself with determining if medical improvement could possibly have occurred earlier. It simply finds that your disability ended at the time of evaluation. The cessation date is the date of the notice informing you that you are no longer disabled.

Is There Medical Improvement?

“Medical improvement” means “any decrease in the medical severity of your impairment(s).”

The decision that there has been a decrease in medical severity “must be based on changes (improvement) in the symptoms, signs and/or laboratory findings … associated with your impairment(s).”

The Social Security Administration will consider only the impairments that had at the time of the most recent favorable decision, and will not consider those impairments that developed since that time. (Newly developed impairments are considered before the issue of medical improvement is addressed and are also considered at a later step in the analysis.)

Medical improvement must be more than minor.

Also, if the impairment is subject to temporary remission, a temporary improvement will not warrant a finding of medical improvement.

Is Medical Improvement Related to Ability to Work?

Once the Social Security Administration has decided that medical improvement has occurred, it will then determine whether the improvement is related to ability to work.

To make this determination, it compares your residual functional capacity (RFC) at the time of the most recent favorable decision with a current RFC based on only those impairments that were present at the time eligibility was most recently approved.

You can imagine the difficulties in comparing, for example, the RFC of a person found disabled years ago due to a back impairment, subsequently develops diabetes with neuropathy in his feet and legs and now has arthritis in one knee as well. In the meantime, however, the range of motion in his back has improved. By looking at the back alone, one might find an improved RFC. And that is what state agency adjudicators are supposed to do at this step; but then they come back again later in the analysis to evaluate the RFC when considering all impairments.

If no medical improvement is found or medical improvement is found not related to ability to work, the inquiry stops and the disability is found to continue as long as none of the exceptions to medical improvement applies.

Exceptions to Medical Improvement

If no medical improvement is found or medical improvement is found not related to ability to work, the decision maker must look to see if any exception to medical improvement applies. There are two groups of exceptions.

First Group of Exceptions

The regulations say that:

These exceptions to medical improvement are intended to provide a way of finding that a person is no longer disabled in those limited situations where, even though there has been no decrease in severity of the impairment(s), evidence shows that the person should no longer be considered disabled or never should have been considered disabled.

If one of the first group of exceptions applies, instead of finding that disability continues, SSA continues with the CDR sequential evaluation process to determine if the recipient is capable of engaging in substantial gainful activity.

The first group of exceptions in the Social Security disability regulations contains five specific items:

  1. where advances in medical or vocational therapy or technology increases a recipient’s ability to work;
  2. the individual has completed vocational therapy;
  3. on the basis of new and improved diagnostic techniques, the individual’s impairment is determined not to be as disabling as it was considered to be at the time of the most recent prior favorable decision;
  4. where the prior decision granting benefits was clearly an error; and
  5. where the recipient is working at the substantial gainful activity level.

Advances in Medical or Vocational Therapy

It is hard to determine the applicability of the exception that applies to advances in medical or vocational therapy or technology that increase your ability to work. In fact, the Social Security Administration has acknowledged in the regulation itself that this exception has very limited application.

Before this exception may be applied, the state agency is required to submit an explanation to the Regional Office Center for Disability, which undoubtedly discourages its use.

Vocational Therapy

This exception dealing with the completion of vocational therapy has many exceptions and qualifications.

For example, the vocational school has to prepare you for a specific type of job. Broad general education such as a technical school associate degree in business does not qualify because a “broad, general training program does not significantly affect [a recipient’s] ability to transfer directly to skilled work.”

New or Improved Diagnostic or Evaluative Techniques Show Impairments Not as Disabling as They Were Considered to Be

When substantial evidence shows that based on new or improved diagnostic or evaluative techniques your impairments are not as disabling as they were considered to be at the time of the most recent favorable decision, the Social Security Administration requires that the new or improved diagnostic or evaluation techniques “must have become generally available after the date of our most recent favorable medical decision.”

However, the list of new or improved diagnostic or evaluative techniques does not contain anything new since October 1984.

Prior Decision Was Wrong

A prior determination that you were disabled will be found in error only if:

  1. substantial evidence shows on its face that the prior determination should not have been made;
  2. crucial evidence, which was missing at the time of the prior evaluation, becomes available and shows that had it been available at the time of the earlier determination, the finding of disability would not have been made; or
  3. substantial new evidence refutes the conclusions that were based on the prior evidence.

Second Group of Exceptions

If one of the second group of exceptions applies, benefits are terminated without further inquiry. That is, there is no inquiry whether you can now engage in substantial gainful activity.

This second group of exceptions includes the following situations:

  • The favorable decision was obtained by fraud.
  • You fail to cooperate with the Social Security Administration (by, for
    example, refusing to provide requested information or failing to attend a consultative examination).
  • The Social Security Administration cannot locate you.
  • You fail without good cause to follow prescribed treatment that would be expected to restore the ability to work.

When Medical Improvement Is Found Related to Ability to Work

If medical improvement is found to be related to your ability to work, the inquiry does not stop. The severity of all current impairments must be analyzed, including those that may not last 12 months. Residual functional capacity must be assessed based on all current impairments, and the issue whether or not you are capable of past relevant work must be addressed. However, past relevant work does not include any job you performed during the current period of entitlement. Past relevant work includes only those jobs performed in the 15 years prior to adjudication. If you cannot perform past relevant work, then it must be considered whether you, considering age, education and work experience, can do other work.

In short, after considering whether there is medical improvement and whether it is related to ability to work, the analysis turns to the last two steps of the Continuing Disability Review process, which are identical to the last two steps of the five-step sequential evaluation process for determining initial entitlement to disability benefits.

As with the sequential evaluation process for determining initial entitlement to disability benefits, a proper determination of residual functional capacity is essential. Many impairment-related factors must be considered in assessing your functional capacity for basic work activities. Age is one key factor. Medical literature shows that there is a gradual decrease in organ function with age. Studies have also shown that the longer an individual is away from the workplace and is inactive, the more difficult it becomes to return to ongoing gainful employment. In addition, a gradual change occurs in most jobs so that after about 15 years, it is no longer realistic to expect that skills and abilities acquired in these jobs will continue to apply to the current workplace. Thus, if you are age 50 or over and have been receiving disability benefits for a considerable period of time, this factor will be considered along with your age in assessing your residual functional capacity.

If disability is found to continue after applying the medical improvement standard’s sequential evaluation process, the Social Security Administration will then apply additional steps in some cases to evaluate whether drug addiction or alcoholism is a contributing factor material to the finding of disability. The test is whether the recipient would still be disabled if he or she stopped using drugs or alcohol.

Cessation of Benefits Because of Performance of Substantial Gainful Activity

The principles of cessation of benefits because of performance of substantial gainful activity are easy to state: When you return to work and perform substantial gainful activity, benefits will stop. Whether benefits stop right away or after completion of a nine-month trial work period, and whether benefits will resume again if you stop performing substantial gainful activity depends on whether the Social Security Administration finds that you medically improved to the point that you are no longer disabled.

However, the regulations are confusing.

The possibility of cessation of benefits based on performance of substantial gainful activity appears as step one of the Continuing Disability Review sequential evaluation process. However, there are exceptions, and you get to the first group of exceptions only after it is determined that your impairment either did not improve or the medical improvement was not related to the recipient’s ability to work. Since this is a sequential evaluation process, why do we need an exception that calls for benefits to stop because of working even when there is no medical improvement?

If you are working but did not medically improve, an exception provides that even though you are is still disabled, benefits may be stopped for performance of substantial gainful activity after completion of any applicable trial work period.

Thus, one regulation provides the basis for skipping step one of the sequential continuing disability review process and another regulation provides the basis for stopping benefits for someone who continues to be disabled after completion of the trial work period and is therefore eligible for a reentitlement period.

Are You Eligible for a Trial Work Period?

If you are receiving disability insurance benefits you are generally entitled to a trial work period. That is, you are eligible to test your ability to return to work for nine months, not necessarily consecutive, during which time full benefits continue.

However, the general rule is that if your impairment is not expected to improve, the Social Security Administration will not conduct a continuing disability review until the completion of the nine-month trial work period. Furthermore, the regulations recognize some possibilities for a recipient not being entitled to a full nine-month trial work period.

First, if your impairment was expected to improve and you return to work with no significant medical limitations and acknowledges to the Social Security Administration that medical improvement has occurred, the Social Security Administration may find that your disability ended in the month you returned to work. Thus, you are not entitled to a nine-month trial work period.

Second, a trial work period can end when “new evidence, other than evidence relating to any work you did during the trial work period, shows that you are not disabled” even though the full nine-month trial work period has not been completed.

It is also possible for a recipient to use up the trial work period more or less without noticing. Recipients who have done some part-time work, as so many do these days while waiting for a hearing to be held, may find that although the work was well below the substantial gainful activity level, it counts for trial work. After the date of application and after the five-month waiting period, any month in which you earn over a certain amount constituting “services” for trial work period purposes, qualifies as a trial work period month, even if those months of work are also determined to be unsuccessful work attempts and even if your income did not constitute substantial gainful activity.

If you are self-employed, whether work constitutes “services” is determined by looking at both income and the number of hours worked. If income exceeds the “services” amount used for recipients employed by other people, then the work for that month constitutes “services.” But even if you do not earn this much, as long as you are working enough hours in a month, the month counts as a services month.

Once you perform “services” for 9 months in what the Social Security Administration calls a rolling 60-month period, the trial work period is used up. To determine whether the 9 months of work fall within the 60-month rolling period, take the last month that qualifies as a services month and count backward in time for 60 months. If during that 60-month period there are 9 months of trial work, the trial work period ends.

Although you are entitled to only one trial work period during a period of disability, you can actually have more than nine months of trial work if the months are spaced widely enough apart so that nine of them do not fall in any 60-month period.

Will the Social Security Administration Conduct a Medical Review During a Trial Work Period?

A trial work period ends after you perform services in nine months during a rolling period of 60 months. But it can also end earlier. It can end the month in which new evidence shows that you are not disabled, even though you have not worked a full 9 months.

However, in order for the trial work period to end and benefits to be terminated before the nine months of trial work are used up, the Social Security Administration must have new evidence of improvement other than evidence relating to the work you have done. This provision is meant as a work incentive. It is the Social Security Administration’s way of providing that the work itself won’t be used against you.

For the Social Security Administration to discover new evidence of improvement, it must conduct a continuing disability review. In fact, return to work is a trigger for a continuing disability review. The Social Security Administration will start a continuing disability review under the following circumstances:

Substantial earnings are reported to your wage record;

You tell the Social Security Administration that you have returned to work;

Your State Vocational Rehabilitation Agency tells the Social Security Administration that you are now working;

Someone in a position to know of your physical or mental condition tells the Social Security Administration that you have returned to work.

Although the Social Security Administration provides the trial work period as an incentive for recipients to return to work, the specter of a continuing disability review operates as a distinct disincentive for return to work.

In order to increase the incentive for returning to work, there is an exception for those who have received disability benefits for at least 24 months. For such recipients the Social Security Administration will not start a medical continuing disability review based solely on a report of work activity.

Nevertheless, although recipients of disability benefits who have received benefits for 24 months are protected from the Social Security Administration initiating a continuing disability review solely because of work activity, such recipients are subject to regularly scheduled medical CDRs and medical CDRs that are initiated for other reasons.

If the Social Security Administration erroneously starts a medical continuing disability review solely because of work activity for a recipient who received 24 months of benefits, the Social Security Administration will vacate any medical cessation determination as long as it receives information about its error within 12 months of the date of the cessation determination.

The Social Security Administration also says that for those recipients who have received benefits for 24 months, it will not consider the activities performed in the work done by the recipient during the current period of entitlement based on disability if the activities support a finding that disability has ended. But the Social Security Administration will consider the work activities if they support a conclusion that disability continues. For those not subject to protection from continuing review because they have received benefits for 24 months, at the conclusion of the trial work period, SSA will consider whether the work performed during the trial work period shows that the disability has ended.

Evaluation After a Trial Work Period

Consider this example:

A recipient with a high school education and a medium unskilled work background who was 49 when he was found disabled returns to work at a full-time sedentary job with earnings above the substantial gainful activity level. He works for 11 months by the time SSA evaluates his case. The rule is that after the 9-month trial work period is over, monthly benefits will end when the claimant performs substantial gainful activity. Since our hypothetical claimant is performing Substantial Gainful Activity in the tenth month of work, the tenth month of work is the month disability is found to have ceased. He is paid for that month and the next two months.

The Social Security Administration refers to this as finding that “disability ceased.” This is not a finding that the claimant no longer has a disabling impairment or that the claimant has medically improved. It is a finding only that the claimant is engaging in Substantial Gainful Activity after the end of the trial work period.

After working for 9 months, disability ends because of performance of substantial gainful activity pursuant to step one of the CDR process.

For someone who has not yet received 24 months of benefits, the Social Security Administration still has to determine whether or not the person continues to meet the “disability requirements of the law” (that is, whether there has been medical improvement).

But if you have already received 24 months of benefits by the time the continuing disability review is begun, the Social Security Administration will not conduct a continuing disability review. Since there will be no continuing disability review to find your medical disability has ended, it will be considered to continue.

How does the Social Security Administration consider the work done in the trial work period after it is over? That is, will the Social Security Administration use the work activity itself as evidence that you are no longer medically disabled? The trial work period regulation says that the Social Security Administration will not consider the work performed during the trial work period as showing that disability has ended until you have performed nine months of trial work. But then the Social Security Administration will consider that work.

But if you have received benefits for 24 months before a continuing disability review is begun, the Social Security Administration will not consider the work if it supports a finding that disability has ended; the Social Security Administration will consider the work activity if it supports a finding that disability continues.

If you are self-employed, there is a work incentive provision if you have received benefits for 24 months before a continuing disability review is begun. The Social Security Administration compares your countable income to the Substantial Gainful Activity amount. If you are not earning more than this amount, the work is not Substantial Gainful Activity. Even if you are earning more than the Substantial Gainful Activity amount in a particular month, but you are not rendering significant services to the business in the particular month, the work will not be considered Substantial Gainful Activity. The Social Security Administration will also not consider the services performed in work when it evaluates whether there was medical improvement unless the particulars of the work activity support a finding that disability continues.

Extended Period of Eligibility / Reentitlement Period

If it is determined that you are performing Substantial Gainful Activity after the trial work period is over, disability is found to cease. You are paid for the first month of Substantial Gainful Activity and the next two months. Whether you are paid benefits in the months after those three months depends on whether you are actually performing Substantial Gainful Activity in those months and whether you continue to have a disabling impairment.

For 36 months counting from the end of the trial work period (the “reentitlement period”) benefits will not be paid for any month in which you are performing substantial gainful activity. On the other hand, benefits will be paid for any month in which you are not performing Substantial Gainful Activity as long as you continue
to have a disabling impairment.

What happens after the 36-month reentitlement period is over? This depends on whether you worked at the Substantial Gainful Activity level during the reentitlement period. If you are working at the Substantial Gainful Activity level at any time during the 36-month reentitlement period, the Social Security Administration will find that your entitlement to disability benefits terminates with the very first month of Substantial Gainful Activity after the end of the reentitlement period.

If you worked enough at the beginning of the 36-month reentitlement period to have benefits cease because of performance of Substantial Gainful Activity, and then stopped working during the reentitlement period, your benefits will resume and continue beyond the 36-month reentitlement period until the very first month you perform Substantial Gainful Activity.

Because there are significant consequences for using up the trial work period, it is recommended that you keep your income below the trial work services amount.

Expedited Reinstatement

If your disability benefits were terminated because of the performance of Substantial Gainful Activity, and you stopped working after the end of the reentitlement period, you can request “expedited reinstatement” for 60 months after entitlement is terminated because you returned to work at the Substantial Gainful Activity level.

To qualify for expedited reinstatement you must:

  1. Not be performing Substantial Gainful Activity in the month you apply for expedited reinstatement;
  2. Be unable to work at the Substantial Gainful Activity level due to your medical condition;
  3. Have your current medical impairment be the same as or related to the original impairment; and
  4. Be under a disability based on application of the medical improvement review standards.