I-3-1-75.Continuing Disability Reviews and Social Security Ruling 13-3p
Last Update: 10/31/13 (Transmittal I-3-56)
On February 21, 2013, the Social Security Administration (SSA) issued Social Security Ruling (SSR) 13-3p: Title II: Appeal of an Initial Medical Disability Cessation Determination or Decision. In the SSR, the agency adopted the holding in Difford v. Secretary of Health and Human Services, 910 F.2d 1316 (6th Cir. 1990) and extended the policy previously applied only in title XVI medical cessation claims to title II medical cessation claims. In sum, SSR 13-3p requires that, when issuing a determination or decision, an adjudicator reviewing a medical cessation claim must decide whether the beneficiary is under a disability at any time through the date of the adjudicator's determination or decision.
It is important to note that Part 405 does not apply to continuing disability review (CDR) cases. See 20 CFR 405.5. Therefore, these instructions apply to any CDR case, regardless of where the case originated.
B. Application of SSR 13-3p
1. Review of an Administrative Law Judge (ALJ) Decision
When reviewing an ALJ's decision in a medical cessation case, the Appeals Council (AC) will determine whether the ALJ's actions were consistent with the policy at the time of the decision. This means:
If the ALJ issued a decision prior to February 21, 2013, (the effective date of SSR 13-3p), the AC will determine whether the ALJ's actions were correct in light of the policy in effect before SSR 13-3p.
If the ALJ's decision is dated on or after February 21, 2013, the AC will consider whether the ALJ adjudicated the claim through the date of the ALJ's decision.
2. Denying a Request for Review
When there is no basis to review an ALJ's decision, the AC will deny the request for review. SSR 13-3p does not apply in this situation because the policy only applies when the AC exercises its authority to issue a decision.
3. Granting Review and Remanding
When the AC grants review and remands the case for further proceedings, SSR 13-3p does not apply to the AC action. However, it will apply to the new ALJ decision issued after remand.
4. Granting Review and Issuing a Decision
When the AC grants review and exercises its authority to issue a decision, SSR 13-3p applies to the AC action. Under SSR 13-3p, the AC will adjudicate a CDR case through the date of the AC's decision.
In light of SSR 13-3p and the AC's limited resources to develop the record, the AC must carefully consider whether it is appropriate to issue a decision in a CDR case rather than remanding a case. Careful consideration is necessary to avoid issuing a decision on an undeveloped record or un-adjudicated period of time.
Therefore, the analyst will consider the following before recommending that the AC issue a decision in a CDR case:
a. Length of Time Between ALJ Decision and AC Action
If the period of time between the date of the ALJ's decision and the date of the AC action is not extensive, an AC decision may be appropriate if the record is otherwise fully developed. For example, if the claimant submits additional evidence one month after the ALJ's decision that changes the outcome of the prior decision, an AC decision may be appropriate.
b. Additional Evidence
If the claimant submits additional evidence that clearly establishes disability, the analyst may recommend a favorable decision to the AC.
If the claimant submits a significant amount of evidence to the AC, or review of the evidence requires the assistance of an expert, the analyst will consider whether it may be more appropriate to recommend remand for an ALJ to review the evidence. The analyst will then recommend an appropriate action given the circumstances of the case.
c. Date Last Insured
If the claim before the AC is for title II benefits only and the date last insured expired before the date of the ALJ decision, the analyst should not take any action to develop the record. Rather, the analyst will recommend the action deemed appropriate based on the evidence before the AC.
d. Subsequent Applications
Under SSR 11-1p: Titles II and XVI: Procedures for Handling Requests to File Subsequent Applications for Disability Benefits, SSA generally cannot accept a new disability application if the claimant has a prior disability claim for the same title and benefit type pending at any level of administrative review.
However, the SSR 11-1p procedures do not apply if the prior application is a CDR claim. See HALLEX I-1-10-1.B. The claimant may file a subsequent application at any time while the CDR case is pending before the AC. Based on the facts of the case and the determined action, the AC must be sure to apply any applicable provision in HALLEX I-1-10.