“One of the things I learned the hard way is that it doesn’t pay to get discouraged.” —Barbara Corcoran
Overview: CDRs and Quality Reviews
Over the last year, the Social Security Administration (SSA) has decidedly increased reviewing favorable ALJ decisions and is budgeting for more Continuing Disability Reviews (CDRs). The Appeals Council is picking up favorable ALJ decisions for quality review. Unfortunately, once a case is picked up by the Appeals Council, many favorable decisions are reversed and remanded back to the ALJ. With the SSA’s budgeting, CDRs are increasingly on the rise.
All of this is unfortunate, inefficient, and causing issues for ALJS and deserving claimants who have already been through the process. Two major issues must be addressed: First, the Appeals Council is picking up favorable ALJ decisions for quality review. Second, as the SSA increases CDRs, they are intent on terminating benefits for claimants who are no longer disabled. In both cases, it’s important to be prepared if your case is chosen for review. Let’s look in-depth at these two issues and how to address them.
Problem: The Appeals Council is picking up favorable ALJ decisions for quality review
As the Appeals Council increases the number of favorable ALJ decisions to review, certain patterns are beginning to emerge. At this point, the Appeals Council seems to be targeting cases with ALJs who have a higher rate of favorable decisions than unfavorable decisions. Claimants being targeted appear to be younger and typically found disabled at Step 3. Further, most of the Step 3 cases are paid on mental impairments only. There also appears to be a pattern of cases related to Drug and Alcohol Abuse (DAA).
If your case is picked up by the Appeals Council for quality review, remember you and the ALJ are on the same team. Provide a legally defensible prehearing or post-hearing brief the ALJ can use as a guide to efficiently draft the favorable decisions.
Work with the ALJ to create a comprehensive brief
If you have a case with a high-paying ALJ, ensure the prehearing and/or post-hearing brief is fully supported by the evidence. Provide the ALJ with a thorough brief, providing counterarguments to credibility issues (e.g., work activity, DAA, or lapse in treatment). Certain ALJs may use a well written and legally defensible prehearing or post-hearing brief to guide them in drafting the decision; providing the ALJ with a comprehensive brief will give you a better chance of winning your case and expediting the decision writing process.
Use exceptions in the brief
Keep in mind, the SSA allows numerous exceptions that are favorable to the claimant—use them. For example, there are exceptions for failure to follow prescribed treatment, substance abuse, and substantial gainful activity. Know the exceptions that relate to your case and include them in the prehearing or post-hearing brief.
Addressing a DAA case
If yours is a DAA case, show where the claimant has been sober and remained symptomatic. If the claimant has a history of DAA and was hospitalized for a psychiatric condition—and if they were sober on admission—show that even while sober the claimant required hospitalization. If they weren’t sober on admission, consider arguing even while receiving treatment and not using during hospitalization, the claimant’s symptoms continued.
Problem: The SSA has expanded its budget with the goal to increase Continuing Disability Reviews (CDRs)
The Social Security Administration’s (SSA) CDR process is expensive, requiring extensive labor to complete reviews. Now that their budget has allocated funding for an increase in CDRs, they are able to essentially adjudicate many more cases twice. This may seem redundant and a waste of funds, but the SSA is intent on saving money by terminating benefits for claimants who are no longer disabled. A pattern is also emerging with these CDRs: a high number of Age 18 Redetermination cases seem to be targeted.
CDRs require an 8-Step adjudication process. Often, the ALJ will find a claimant disabled but fails to include the 8-Step CDR analysis in the decision. This is an easy Appeals Council remand. Therefore, assist the ALJ to avoid a possible Appeals Council remand by laying out a thorough 8-Step CDR argument in the prehearing or post-hearing brief.
Use your knowledge of the exceptions to medical improvement to provide a solid, legally defensible argument for the ALJ. Again, give them an efficient and defensible guide to use in the adjudication and decision writing process.
Keep in mind, ALJs are in a production-paced environment. Any help you are able to provide in the prehearing or post-hearing brief helps both you and the ALJ to fully and fairly advocate for a deserving client. Do not be discouraged; the solutions are readily available!
If your case has been picked up and you need a RUSH brief, click here.