New Application During Cessation Reconsideration

A little background on this post . . .

Once a claimant is approved for disability benefits, SS will periodically perform a Continuing Disability Review (CDR) to determine if the impairments are still disabling. If SS finds the claimant is no longer disabled, benefits will be terminated. This is called Cessation. A Request for Reconsideration can be filed appealing the determination and cessation of benefits. A pre-hearing review will be performed by an adjudicative team or person that was not involved in the initial unfavorable determination, and a new determination will be issued either affirming cessation or approving ongoing disability. If cessation is affirmed, a disability hearing will be scheduled within a disability hearing unit (DHU) by a disability hearing officer (DHO). If cessation is affirmed, a Request for Hearing can be filed. A disability hearing will be scheduled before an administrative law judge (ALJ) who will review the Reconsideration and issue a decision either affirming the Reconsideration or approving ongoing disability. If an unfavorable decision is issued, a Request for Review can be filed with the Appeals Council (AC). The AC will review the ALJ's decision and issue an order either affirming the ALJ's unfavorable decision, remanding the case back to the ALJ for another hearing, or approving ongoing disability. If the AC affirms the ALJ's decision, an appeal can be filed for Federal Court review.

Unfortunately, the time involved going through the levels of appeal is exorbitant, to say the least. I currently have three Clients at the Cessation Reconsideration appeal level. Two have been waiting 17 months, and the other has been waiting 22 months just for a determination on the pre-hearing review! Yes, you read that right: 17-22 months without a determination. In fact, when I call the Disability Determination Service (DDS) to check the status, I have been repeatedly told the case is pending, a disability examiner has not yet been assigned, and there is no estimated guideline on how long it will take for the review to be completed.

The exciting news . . .

So I did a little research and found out that a claimant who is currently going through a Cessation Reconsideration can file a new initial application! This is incredible news, especially for claimants who are not receiving ongoing benefits while waiting through the appeal process.

I bet you're wondering why I didn't think about this sooner. In my defense, these CDR Cessation Reconsideration cases are not my usual work fare. In my first 10 years of practice, I think I only had one CDR case: A single father of two young boys called me about five weeks before his ALJ hearing desperate for an attorney's help, and I couldn't say no. We won.

Additionally, a claimant used to be able to file a new initial application while waiting for an Appeals Council Order on a Request for Review, but a few years ago, SS changed the regulations. Claimants can no longer file a new initial application while an appeal is still pending at the administrative level. I thought this included CDR Cessation Reconsiderations.

I think SS changed some other regulations a few years ago on the evaluation guidelines of CDR cases, which seems to have precipitated an increase in cessations, thus increasing the number of Requests for Reconsideration and creating the monstrous backlog and overwhelming wait times. Hence, my Clients waiting nearly two years just at the first of four levels of appeal. I don't have any hard numbers or evidence on this conclusion, but when I first started getting these calls, I did some research and found a report on a study evaluating the numbers of claimants terminated or approved at a CDR based upon varying standards. It kind of felt like "someone" was making a big effort to save money by tightening the CDR process to weed out claimants whose impairments were no longer disabling, but inadvertently created a black hole for claimants waiting for a response, any kind of response. It's just a gut feeling.

For more information, follow the links below.

New Application and Request for Reconsideration http://policy.ssa.gov/poms.nsf/lnx/0429005022

Reconsideration of a Continuing Disability Review (CDR) http://policy.ssa.gov/poms.nsf/lnx/0412026001

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