Copyright 1992 by the National Clearinghouse for Legal Services. All Rights Reserved.25 Clearinghouse Review 860 (November 1991)

Representing Individuals with Disabilities in Securing SocialSecurity and Supplemental Security Income Disability Benefits

by Eileen P. Sweeney. Eileen P. Sweeney is a Staff Attorney at the National Senior CitizensLaw Center (NSCLC), 1815 H St., NW, Ste. 700, Washington, DC 20006, (202) 887-5280.Advocates with questions on social security and SSI disability issues are welcome to contacteither Eileen Sweeney or Kim Savage at NSCLC, 1052 W. 6th St., Ste. 700, Los Angeles, CA90017, (213) 482-3550.

I. Introduction

The purpose of this article is to describe the most basic rules and practices for representingpeople who are disabled in securing social security /1/ and Supplemental Security Income(SSI) /2/ disability benefits. Wherever possible, citations are provided to other articles andmanuals that provide more detailed information on various aspects of the social security andSSI programs.

II. Nondisability Eligibility Requirements

A. Social Security

Social security, Old Age, Survivors and Disability Insurance (OASDI), is a social insuranceprogram funded through employee and employer payroll taxes. /3/ Eligibility for all benefits,whether paid directly to a worker who is retired or disabled or to dependents or survivors of aworker, turns on whether the worker earned the required number of quarters in coveredemployment to establish eligibility. /4/ The amount of the benefits that a person receives isbased upon a formula that relies upon an average amount that the worker earned, the "primaryinsurance amount." /5/ While the formula is weighted to benefit those with lower incomes,higher earnings will result in higher benefits.

A person may be entitled to social security disability benefits on his or her own work record, /6/or on the record of a deceased spouse /7/ or a retired, disabled, or deceased parent. /8/ To beeligible for benefits on his or her own work record, the person must prove that he or she is both"fully insured" and "disability insured." /9/ If the person becomes disabled before age 31,special rules apply. /10/

A person who receives benefits as the disabled widow or widower of a deceased worker mustbe 50 years of age or older and must have become disabled within 7 years of the death of theworker or within 7 years of the last time the person received benefits on the worker's record./11/ A person who receives benefits as the disabled adult child of a worker who is retired,disabled, or deceased must have become disabled before his or her 22nd birthday. /12/

B. Supplemental Security Income (SSI)

Unlike social security, SSI is a means-tested program, providing benefits based upon need toindividuals who are aged, blind, or disabled. /13/ The person's countable income and resourcesmust be below specified levels. /14/ With regard to income, various disregards apply. Forpeople with disabilities who are working, the disregards are more favorable than for those whoreceive unearned income, such as a social security or pension benefit. /15/ Countable resourcesmay not exceed $2,000 for an individual, $3,000 for a couple. /16/ The person must also be acitizen, a resident alien, or a person residing in the United States under color of law. /17/

III. Disability Rules

A. Statutory Rules

The standard for determining whether a person is disabled is the same for both social securityand SSI. The person must be unable "to engage in substantial gainful activity by reason of anymedically determinable physical or mental impairment which can be expected to last not lessthan 12 months." /18/ The impairments must be "of such severity that [the claimant] is not onlyunable to do his previous work but cannot, considering age, education and work experience,engage in any other kind of substantial gainful work which exists in the national economy." /19/

B. Regulatory Rules

In evaluating whether a person's impairments meet this test, the Social Security Administration(SSA) employs the "sequential evaluation" process, /20/ which contains five steps:

Step 1. SSA first determines whether the person is currently working and performingsubstantial gainful activity. /21/ If the answer is "yes," the person is not disabled. If the answeris "no," SSA goes on to step 2.

Step 2. Does the person have a severe impairment or combination of impairments? /22/ If "no,"the person is not disabled. If "yes," go to step 3.

Step 3. Does the person's impairment or combination of impairments meet or equal one of theimpairments listed in the Listing of Impairments? /23/ If "yes," the person is disabled. If "no,"

SSA will make a determination regarding the individual's residual functional capacity (RFC) towork despite his or her impairments, and then move to step 4. /24/

Step 4. Does the person's impairment or combination of impairments prevent the person fromdoing his or her past work? If the person can still meet the "physical and mental demands ofwork" that he or she did in the past, /25/ SSA will deny disability. If not, the evaluation movesto step 5.

Step 5. If the person cannot do his or her past work, SSA will then determine whether,considering the person's age, education, and work experience, there are other jobs that theperson can perform. /26/ If there are other jobs, then disability benefits will be denied. If otherjobs do not exist, benefits will be paid.

Two key points should be noted here. First, each of these five steps includes many differentrules. Over the years, substantial litigation has taken place involving all aspects of these fivesteps, particularly steps two, /27/ three, /28/ and five. /29/ It is very important that the advocatelearn the various rules related to these five steps. Often, it is the exceptions rather than the rulesthat will ensure that a claimant is awarded benefits.

Second, it is important to remember that SSA uses different steps in its sequential evaluationprocess in two key types of cases: (1) when it is evaluating the eligibility of a minor child forSSI disability benefits, /30/ and (2) when it is conducting a continuing disability review (CDR)to determine whether a person who is currently receiving benefits continues to be eligible forbenefits. /31/

IV. Representing a Person with Disabilities Before SSA

A. Who Makes the Disability Determinations at SSA and the AppealsProcess

1. General Procedure

State disability determination services (DDSs) make most of the initial disability determinationsfor SSA. /32/ These offices are funded by SSA for this purpose and are subject to all of SSA'srules and regulations.

The applicant for social security or SSI disability benefits files an application at the local socialsecurity office (or, in some cases, through the mail). After some preliminary work is done bythe local SSA office, the file is sent to the state DDS for a decision on whether the person isdisabled. The state DDS also makes the determination at the second level, the reconsiderationstage.

The decision will indicate whether the person is found eligible for benefits and will provide areason, often unintelligible or too summary to be useful. /33/ If the notice does not grant all ofthe benefits sought or denies eligibility, the person will have 60 days from the date of receipt ofthe notice in which to request reconsideration of that decision. /34/ At the reconsideration level,the DDS will conduct a paper review of the file. /35/ In most cases, the result will be a decisionupholding the original denial of benefits. /36/

When the person receives the notice denying benefits at the reconsideration level, he or she willhave 60 days from the date of receipt in which to appeal to the administrative law judge (ALJ)level. /37/ This is the first level at which the person is able to appear before the decisionmaker.It is also the first level at which the decisionmaker is to some degree independent. At this level,the ALJ conducts a de novo review. This means that the ALJ will look at all of the evidencefresh--the ALJ will not simply be reviewing the decision of the state DDS. This is probably themost important step of the process for most claims. It is critical that the strongest factual andmedical record possible be made at this step. The chances of prevailing at the ALJ stage aredramatically higher than at the reconsideration level. /38/

If the ALJ denies benefits, the person may seek review before the Appeals Council. /39/ Again,this is a paper review. In the past two years, partially in an attempt to prevent so many remandsand reversals by the courts, the Appeals Council has been somewhat more responsive to theissues raised on appeal.

The Appeals Council's decision is treated as the final decision of the Secretary of theDepartment of Health and Human Services. /40/ Appeal from an unfavorable decision at thatstage is to the federal district court in the jurisdiction in which the individual resides. /41/Again, the complaint for judicial review must be filed within 60 days. /42/ The court willreview SSA's decision to determine whether it is based upon "substantial evidence." /43/

2. Special Procedures When SSA Conducts a Continuing Disability Review andDecides to Terminate Benefits

There are two key differences between the regular appeals process, described above, and theprocess used in cases in which SSA has decided that a person is no longer disabled because hisor her medical condition has improved or ceased to be disabling. /44/ First, and mostimportant, if a person receives such a notice, that person is entitled to have benefits continuethrough the ALJ level. /45/ In order to secure benefit continuation, the individual must file thenotice of appeal and the request for benefit continuation within ten days of notice oftermination. This procedure must be followed twice, once at the reconsideration level, andagain at the ALJ stage. /46/ The "good cause" rules for failure to file in time apply here. /47/

The second difference is that, at the reconsideration stage, the person will have the opportunityfor a face-to-face contact with the person in the DDS who will decide the case. /48/ The valueof the reconsideration level generally is an issue frequently raised by advocates. With CDRcases involving terminations, it is usually useful for the advocate to represent a few people atthe reconsideration stage in order to determine whether it is likely that cases will be reversed atthat stage. /49/

B. Collecting and Developing Evidence

Evidence development is critical in disability cases. There are three key points to remember.First, the ALJ has a special obligation to assist individuals who are not represented in ensuringthat the record is fully and fairly developed. /50/ Second, SSA has a special obligation toindividuals who are applying for or receiving SSI. /51/ Finally, because SSA's evidencedevelopment tends to be poor, advocates should view it as a key aspect of their representationto ensure that the record is complete. This should not only include obtaining all medical recordsregarding the client's conditions, but also the opinions of the treating physicians and, wherenecessary, additional examinations to address medical problems that are not fully addressed bythe existing medical records. In addition, statements from the client, former employers,coworkers, family and friends, and social workers regarding the limitations created by theperson's impairments are very important.

Many of the sources listed at the end of this article provide excellent discussions of the types ofquestions to ask of both the client and the treating sources. /52/

C. Filing Appeals, Seeking Reopening, and Recognizing "Good Cause" forNot Filing a Timely Appeal

As mentioned above, after each notice denying or terminating benefits, the person has 60 daysfrom receipt of the notice to appeal to the next level of review. It is important that advocates fileappeals as soon as they and their clients determine that an appeal will be taken. The delays inthe social security/SSI appeals process are already extreme. In some cases, people are waitingin excess of one year for a hearing at the ALJ level to be scheduled. Receipt of a decision takeseven longer. While the time to file an appeal is not very long, advocates can minimize, to asmall extent, the full length of time from application until award, by filing appeals to the nextlevel at the earliest opportunity.

Advocates also should note that a client's failure to file an appeal within the required 60 daysafter receipt of the notice is not necessarily fatal to the person's appeal. One or more of certainkey rules may apply in one client's case.

1. A Notice Stating That Client Can Always Reapply

In cases in which the person received a notice from SSA stating that, in lieu of appealing, theperson could always reapply, the courts have held that due process has been violated. /53/ Inthese cases, the courts require that SSA reopen the prior claim for benefits. /54/

2. Effect of a Misleading Notice

Effective for adverse determinations made on or after July 1, 1991, if a person has been misledby SSA, either in writing or orally, into not appealing but simply reapplying, the priordetermination cannot be used to bar the later application under the doctrine of res judicata. /55/

3. Factors That SSA Must Consider

Since July 1, 1990, the statute has required that SSA "specifically take into account anyphysical, mental, educational, or linguistic limitation" of the person, "including lack of facilitywith the English language." /56/

4. Good Cause for Untimely Appeal

The regulations provide a number of bases for "good cause" for failing to file an appeal ontime. /57/

5. Persons with Mental Impairments

SSA has issued special instructions that focus on the "good cause" requirement as it applies topeople with mental impairments. /58/

6. Medical Improvement Standard

If a client now has an application pending, but was receiving benefits in the past that wereterminated, find out the circumstances under which the benefits were terminated. In the early1980s, close to 500,000 beneficiaries' disability benefits were terminated, often illegally. /59/When Congress amended the statute in 1984 to include explicitly a requirement that benefitsnot be terminated without evidence of medical improvement, it also required that the cases ofmany of these individuals be re-reviewed. /60/ Those who were entitled to review includedindividuals who were members of certified classes challenging SSA's failure to use a medicalimprovement standard in 27 states. /61/ While SSA sent notices to these individuals,approximately 60 percent of the people were never found or never replied. /62/ If the personnever received the notice, he or she is entitled to protection of that statutory provision. /63/Similarly, if the person received the notice but has good cause for failing to apply, he or sheshould be protected. /64/

The protections for this last group are substantial. First, the case will be reopened back to thedate of termination of benefits. Second, instead of being treated as a new applicant, the personwill be entitled to review under the medical improvement standard. Third, while the person

may no longer be able to show insured status for a new application, reopening of the oldapplication will eliminate this problem.

D. Special Situations

1. Widows

Since January 1, 1991, disabled widows now have the same test for disability applied to themas is applied to workers. /65/ However, many of the cases that advocates will be seeing forsome time will include periods of eligibility for dates prior to January 1, 1991. Advocates musttherefore note two important points.

First, the old standard, whether the individual could do any gainful activity, was very strictlyapplied by SSA. If a person did not meet or equal a listed impairment, SSA denied theapplication. It refused to consider whether the person's functional limitations were so great thatthe person's impairment equaled a listing. /66/ As the result of numerous court decisionsagainst SSA, /67/ SSA recently issued a ruling that it will consider functional limitations for theperiod prior to January 1, 1991, as well as later. /68/ It will be critical that advocates ensurethat this standard is properly applied in these cases.

Second, to receive disabled widow's (widower's) benefits, a person must establish that his orher impairment became disabling within seven years of the death of the wage earner or withinseven years of the last time that the person received social security benefits on that wagerecord. /69/ Under the new standard, even though it applies to benefits payable after January 1,1991, it will also be applicable in determining whether the seven year rule was met, even if theseven-year period expired before January 1, 1991. /70/

Many widows who were denied benefits in the past will now be eligible under the newstandard.

2. Children Applying for SSI

Since the beginning of the SSI program, it has been very difficult for children to receivedisability benefits. As a result of a Supreme Court decision in 1990, /71/ this has all changed./72/ 450,000 children (and young adults who applied as children) began to receive notices fromSSA in July 1991 that they can seek re-review of their cases. It is very important for advocatesboth to spread the word in their communities about this important decision and to assistfamilies in securing representation for their children who are disabled and seeking SSI.

3. The Working and Disabled Client

Many provisions permit people who work despite their disabilities to continue to receive socialsecurity and SSI. /73/ The SSI rules are generally more favorable. It is important for advocatesto be familiar with these rules for two reasons. First, knowledge of these rules will enhance theadvocate's ability to assist clients in achieving independence. Second, SSA staff frequentlyignore or misapply the rules. Often, individuals receive incorrect notices denying or terminatingdisability benefits and/or informing them of an alleged overpayment simply because the SSAstaff do not understand the work incentive rules and/or fail to apply them in each case.

E. General Practice Tips

1. The Client Has a Right to Have His or Her Advocate Receive Copies of AllNotices Sent to the Client

A recurring problem, but one that has a solution, is that SSA staff fail to send the client'srepresentative a copy of the decisions issued in the case. If a representative has filed theappointment of representative form, SSA is obligated to send these notices. /74/ A change inthe statute, which requires SSA to include the representative's name on its computer record,should also make it easier for SSA to send these notices. /75/ Advocates must press locally forSSA to implement these rules.

2. The Client's Treating Physician Should Be DDS's and SSA's First Choice forAny Required Consultative Examination or Testing

Ongoing tensions exist in the way in which SSA uses evidence secured from nontreatingsources to undermine the evidence received from treating sources. /76/ These problems arelikely to continue in the future. /77/ One way to avoid some of these problems is to ensure thatSSA meets its statutory obligation to use treating sources as consultative examiners. /78/ Thisoften requires sensitizing local physicians to the importance of serving in this function for thestate DDS.

3. Identify Others in Your Community Who Represent People on Social Securityand SSI Issues

Representing clients before SSA is both frustrating (which is why your clients need you) andrewarding (because you will make a difference for your clients). Advocates have generallyfound it helpful to identify other advocates in their communities (town, city, state, judicialcircuit) to work with, exchanging ideas and strategies, identifying common problems, andseeking common solutions. Advocates new to these issues should determine which efforts havealready been made in this area and become involved. If none have been made, suggest that

other advocates consider meeting periodically. Advocates will discover that they have alimitless capacity to learn from one another in this area.

V. Helpful Resources

In addition to the Clearinghouse Review, advocates should be aware of the followingpublications.

A. SSA Publications

1. Code of Federal Regulations

The Code of Federal Regulations, chapter 20, subparts 404 and 416 (both are in one volume),are available from the Government Printing Office (GPO), Superintendent of Documents,Washington, DC 20201.

2. Program Operations Manual System (POMS)

The Program Operations Manual System (POMS) is available for review and (partial) copyingin local social security offices.

3. HALLEX

HALLEX, the rules and procedures of the Office of Hearings and Appeals (home of the ALJsand the Appeals Council), is currently available through a request under the Freedom ofInformation Act, 5 U.S.C. Sec. 551.

4. Social Security Rulings

Social security rulings, published by GPO, are also available in West's Social SecurityReporting Service and the CCH Unemployment Insurance Reporter described in part V.D,infra.

5. Social Security Handbook

Social Security Handbook, SSA Publication No. 05-10135 (Oct. 1988), is available from GPO.Published by SSA, this volume is very useful, particularly in understanding the variousformulae for calculating benefits, but should not be relied upon as the law. A 1991 volume isexpected shortly.

B. Books and Manuals

1. Social Security Disability Practice

Social Security Disability Practice (West 1989) is a very readable, thoughtful, useful, andreasonably priced book, written by Charles Hall, a private attorney who represents people insocial security disability cases. It will be useful to all practitioners, but is of particular value forthe new advocate.

2. An Advocate's Guide to Surviving the SSI System

An Advocate's Guide to Surviving the SSI System, by Lybarger and Onerheim, although a fewyears old, is well-written, well-organized, user-friendly, and provides many thoughtfuladvocacy tips. This manual was published in 1985 by the Massachusetts Poverty Law Center,69 Canal St., Boston, MA 02114.

3. Disability Practice Manual for Social Security and SSI Programs

The Disability Practice Manual for Social Security and SSI Programs has updatingsupplements. It was published by Legal Counsel for the Elderly, 601 E St., NW, Washington,DC, in 1985, and includes a great deal of expertise and many helpful advocacy tips.

4. Supplemental Security Income: Income, Resources, and Procedural Issues

Supplemental Security Income: Income, Resources and Procedural Issues (2d edition) waspublished in spring 1990 by the National Senior Citizens Law Center. (A third edition isscheduled for publication in fall 1991.) This manual addresses the range of nondisability issuesthat SSI applicants and recipients face in the SSI program.

C. Mailings and Publications

1. Informational Mailings for Social Security and SSI Advocates

The National Senior Citizens Law Center, Washington, D.C., office, issues InformationalMailings for Social Security and SSI Advocates to legal services advocates approximately 12times a year. These mailings address current issues and developments in social security andSSI and include copies of the pertinent court decisions and related materials.

2. NOSSCR Forum

NOSSCR Forum is issued by the National Organization of Social Security Claimants'Representatives (NOSSCR), 19 E. Central Ave., P.O. Box 794, Pearl River, New York 10965,a number of times during the year. This publication provides useful information ondevelopments and practice tips and strategies.

D. Reporters

1. West's Social Security Reporting Service

West's Social Security Reporting Service is published by West Publishing Co., 50 WestKellogg Blvd., P.O. Box 43526, St. Paul, MN 55164.

2. Unemployment Insurance Reporter

The Unemployment Insurance Reporter is published by Commerce Clearing House, 4025 W.Peterson Ave., Chicago, IL 60646.

footnotes

1. 42 U.S.C. Secs. 401 et seq.; 20 C.F.R. Part 404.

2. 42 U.S.C. Secs. 1381 et seq.; 20 C.F.R. Part 416.

3. 42 U.S.C. Secs. 409 and 410. Individuals who are self-employed pay both portions of thetax. Id. at Sec. 411.

4. The term "employment" is defined at 42 U.S.C. Sec. 410(a).

5. Id. at Sec. 415.

6. Id. at Sec. 423.

7. Id. at Sec. 402(e)(1)(B)(ii).

8. Id. at Sec. 402(d)(1)(B)(ii).

9. Id. at Sec. 423(c). See 20 C.F.R. Sec. 404.110(b)(2), 404.130, 404.131, and 404.132.

10. 20 C.F.R. Sec. 404.130(c).

11. 42 U.S.C. Sec. 402(e)(1)(B)(ii) and 402(e)(4).

12. Id. at Sec. 402(d)(1)(B)(ii).

13. Id. at Secs. 1381 et seq.

14. 20 C.F.R. Sec. 416.202.

15. Compare 20 C.F.R. Sec. 416.1111 with Sec. 416.1123.

16. Id. at Sec. 416.1205(c).

17. Id. at Sec. 416.202(b)(1), 416.202(b)(2), and 416.202(b)(3).

18. 42 U.S.C. Secs. 423(d)(1)(A) and 1382c(a)(3)(A).

19. Id. at Secs. 423(d)(2)(A) and 1382c(a)(3)(B).

20. See 20 C.F.R. Secs. 404.1520 et seq. and 416.920 et seq.

21. 20 C.F.R. Secs. 404.1520(b), 404.1572, 416.920(b), and 416.972.

22. Id. at Secs. 404.1520(c) and 416.920(c); see also Social Security Ruling 85-28, West'sSocial Security Reporting Service, 1990 Ruling Supp. 470.

23. 20 C.F.R. Secs. 404.1520(d) and 416.920(d). The Listing of Impairments appears asAppendix 1 in 20 C.F.R. Part 404, subpart P.

24. Id. at Secs. 404.1520(e), 404.1545, 416.920(e), and 416.945.

25. Id. at Secs. 404.1520(e) and 416.920(e).

26. Id. at Secs. 404.1520(f) and 416.920(f). SSA utilizes the "Medical Vocational Guidelines"in making this determination. Known also to advocates as the "grids," these rules appear as"Appendix 2" to 20 C.F.R. Part 404, subpart P. It is critical that advocates ensure that theserules are not inappropriately applied in cases in which the claimant cannot perform work on asustained basis, eight hours per day, five days per week, or in cases of environmental, mental,or manipulative limitations. These rules are intended for use if the person has exertionallimitations. See Appendix 2, Rule 200.00(a) and 200.00(e).

27. See, e.g., McDonald v. Secretary of HHS, 795 F.2d 1118 (1st Cir. 1986); Dixon v.Heckler, 589 F. Supp. 1494 (S.D.N.Y. 1984), aff'd, 785 F.2d 1102 (2d Cir. 1986)(Clearinghouse No. 36,027). These cases culminated in Bowen v. Yuckert, 482 U.S. 137(1987) (Clearinghouse No. 41,780).

28. Many challenges have been made to SSA's failure to consider functional limitations indetermining whether a person's impairments meet or equal a listed impairment. Thesechallenges have arisen in two key contexts: eligibility for widow's benefits and SSI disabledchild's benefits. See Sullivan v. Zebley, 100 S. Ct. 885 (1990) (Clearinghouse No. 43,127)(SSI children), Zebley implementation packet (Clearinghouse No. 46,910); and note 67, infra,for a list of the successful challenges in the widows' cases.

29. Heckler v. Campbell, 461 U.S. 458 (1983); see also Kirk v. Secretary of HHS, 667 F.2d524 (6th Cir. 1981), stressing the importance of the exceptions to application of the guidelines.

30. See Clark, Determining Disability for Children: Implementation of Sullivan v. Zebley, PartI: The New Sequential Evaluation Process--An Overview, 25 CLEARINGHOUSE REV. 246(July 1991); Weishaupt & Stein, Supreme Court's Zebley Decision Will Greatly ExpandEligibility for SSI Childhood Disability Benefits and Medicaid, 24 CLEARINGHOUSE REV.229 (July 1990). The new regulations are published at 56 Fed. Reg. 5534-5565 (Feb. 11,1991) and appear as 20 C.F.R. Secs. 416.924 et seq.

31. 20 C.F.R. Secs. 404.1594 and 416.994; see Sweeney, The New "Medical Improvement"Standard in Social Security and SSI Disability Cases (National Senior Citizens Law Center1986) (memorandum) (Clearinghouse No. 40,720). See also Dicus v. Sullivan, 1990 WL264706 (E.D. Wash. 1990).

32. See 20 C.F.R. Secs. 404.1610 et seq.

33. This probably violates the statutory requirements that "any decision which involves adetermination of disability and which is in whole or in part unfavorable to such individual shallcontain a statement of the case, in understandable language, setting forth a discussion of theevidence, and stating the Secretary's determination and the reason or reasons upon which it isbased," 42 U.S.C. Sec. 405(b)(1); and that all SSA notices be written in "simple and clearlanguage," 42 U.S.C. Secs. 405(s) and 1383(n) (added by the Omnibus Budget ReconciliationAct of 1990, Pub. L. No. 101-508, Sec. 5109, 104 Stat. 1388, 1388-271, effective July 1, 1991[hereinafter OBRA-90]).

34. 20 C.F.R. Secs. 404.909(a)(1) and 416.1409(a)(1).

35. Id. at Secs. 404.913 and 416.1413.

36. In Fiscal Year 1990, 83 percent of the initial application cases appealed to thereconsideration level were denied. HOUSE COMM. ON WAYS & MEANS, OVERVIEWOF ENTITLEMENT PROGRAMS, WMCP No. 102-9, 102d Cong., 1st Sess. 59, table 6(May 1991).

37. 20 C.F.R. Secs. 404.933(b)(1) and 416.1433(b)(1).

38. In Fiscal Year 1990, of the initial application cases appealed to the ALJ level, 63 percentwere granted benefits at that stage. 55 percent of the CDR cases were also allowed at thatstage. HOUSE COMM. ON WAYS & MEANS, supra note 36, at 59.

39. 20 C.F.R. Secs. 404.968 and 416.1468.

40. Id. at Secs. 404.981 and 416.1481.

41. 42 U.S.C. Sec. 405(g).

42. Id.

43. Id.

44. SSA says that these rules do not apply if the person's benefits are terminated on thegrounds that the individual is now working and engaged in substantial gainful activity (SGA).POMS DI Sec. 28080.105C. However, some SGA determinations are incorrect and there maybe a basis for arguing that a complete continuing disability review should have been conducted.There are many exceptions to the SGA rule. See POMS DI Sec. 24001.025. SSA will continuebenefits in SGA cases that which involve SSI or concurrent SSI/DI claims. POMS DI Sec.28080.105C.

45. 42 U.S.C. Secs. 423(g) and 1383(a)(1)(A).

46. 20 C.F.R. Sec. 404.1297a(f) and 404.1297a(g).

47. Id.

48. 42 U.S.C. Sec. 405(b)(2).

49. In Fiscal Year 1990, the reversal rate at reconsideration in CDR cases was much higherthan in initial application cases, suggesting that reconsideration is far more valuable in the CDRcases. 49 percent of terminations were reversed (compared with 17 percent of initialapplications) at the reconsideration level. HOUSE COMM. ON WAYS & MEANS, supranote 36, at 59.

50. 20 C.F.R. Sec. 404.944. See also, e.g., Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir.1975); Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir. 1972).

51. Ferguson v. Schweiker, 765 F.2d 31, 36 n.4 (3d Cir. 1985).

52. In particular, see the volumes by Charles Hall, Legal Counsel for the Elderly, andMassachusetts Poverty Law Center, cited in part V, infra.

53. Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990); Christopher v. Secretary of HHS,702 F. Supp. 41 (N.D.N.Y. 1989); Butland v. Bowen, 673 F. Supp. 638 (D. Mass. 1987)(Clearinghouse No. 43,436); Dealy v. Heckler, 616 F. Supp. 880 (W.D. Mo. 1984)(Clearinghouse No. 38,552).

54. Gonzalez, 914 F.2d at 1197; Christopher, 702 F. Supp. at 41; Butland, 673 F. Supp. at638; Dealy, 616 F. Supp. at 880.

55. 42 U.S.C. Secs. 405(b)(3)(A) and 1383(c)(1)(B), added by OBRA-90, supra note 33, atSec. 5107(a)(1) and 5107(a)(2).

56. The social security provision amends four specific sections of the Act, two of which arerelevant here: 42 U.S.C. Sec. 423(f) (standard of review in termination of disability benefits,fraud exception); and 42 U.S.C. Sec. 423(g)(2)(B) (continuation of benefits pending appeal inCDR cases; availability of waiver of recovery of the overpayment where the person does notprevail on appeal). The SSI provision is much broader in its application, applying throughoutthe SSI program. 42 U.S.C. Sec. 1383(c)(1).

57. 20 C.F.R. Secs. 404.911 and 416.1411.

58. See POMS DI Sec. E03101.300. See also Culbertson v. Secretary of HHS, 859 F.2d 319(4th Cir. 1988); Young v. Bowen, 858 F.2d 951 (4th Cir. 1988).

59. For further discussion, see Sweeney, New Disability Legislation Enacted, 18CLEARINGHOUSE REV. 819 (Nov. 1984), and National Senior Citizens Law Center, The1984 Disability Reform Amendments: Three Years Later, 21 CLEARINGHOUSE REV. 714(Dec. 1987) [hereinafter NSCLC].

60. Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, Sec.2(d)(3)(B), 98 Stat. 1794, 1798 (1984) [hereinafter Disability Benefits Reform Act of 1984].

61. See NSCLC, supra note 59, at 716, n.21. The states covered are Alabama, Alaska,Arkansas, California, Colorado, Florida, Hawaii, Illinois, Indiana, Iowa, Maine, Maryland,Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, NorthCarolina, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, andWashington. The following territories are also covered: Guam, American Samoa, and theNorthern Marianas. The exact time frames covered by each class vary. Generally, they beginaround March 1, 1981. However, in three states, the classes cover individuals terminated fromthe programs as early as 1976. See Kuehner v. Heckler, 778 F.2d 152 (3d Cir. 1985)(Clearinghouse No. 32,560) (Pennsylvania); Avery v. Heckler, 762 F.2d 158 (1st Cir. 1985)(Clearinghouse No. 35,025) (Massachusetts); Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986)(Clearinghouse No. 32,771).

62. See NSCLC, supra note 59, at 716.

63. The claimant has 120 days to request review "after the date on which such notification isreceived." Disability Benefits Reform Act of 1984, supra note 60, at Sec. 2(d)(3)(B). See alsoBellantoni v. Schweiker, 566 F. Supp. 313 (E.D.N.Y. 1983).

64. POMS DI Sec. E00510.020; POMS GN Sec. 03102.075 A-J.

65. OBRA-90, supra note 33, at Sec. 5103, amending 42 U.S.C. Sec. 423(d)(2)(A), andrepealing Sec. 423(d)(2)(B). For further discussion, see Sweeney, OBRA-90 Changes inSocial Security and SSI Will Benefit Applicants and Beneficiaries, 24 CLEARINGHOUSEREV. 1266 (Mar. 1991).

66. See, for example, Marcus v. Sullivan, 926 F.2d 604 (7th Cir. 1991) (Clearinghouse No.38,704).

67. See, Cassas v. Secretary of HHS, 893 F.2d 454 (1st Cir. 1990); Tolany v. Heckler, 756F.2d 268 (2d Cir. 1985) (Clearinghouse No. 39,447); Kier v. Sullivan, 888 F.2d 244 (2d Cir.1989) (Clearinghouse No. 45,112); Finkelstein v. Sullivan, 924 F.2d 483 (3d Cir. 1991)(Clearinghouse No. 46,091); Bennett v. Sullivan, 917 F.2d 157 (4th Cir. 1990); Marcus, 926F.2d at 604; Ruff v. Sullivan, 907 F.2d 915 (9th Cir. 1990); Davidson v. Secretary of HHS,912 F.2d 1246 (10th Cir. 1990). See also Paris v. Schweiker, 674 F.2d 707 (8th Cir. 1982).

68. Social Security Ruling 91-3p, 56 Fed. Reg. 23589 (May 22, 1991).

69. 42 U.S.C. Sec. 402(e)(1)(B)(ii) and 402(e)(4).

70. The effective date says that the provision applies to all determinations for benefits payableon or after January 1, 1991. OBRA-90, supra note 33, at Sec. 5103(e).

71. Zebley, 110 S. Ct. at 885.

72. See articles cited at note 30, supra.

73. For a general discussion, see Sheldon, Work Incentives for Disabled Persons Under theSocial Security and SSI Programs, 22 CLEARINGHOUSE REV. 1074 (Feb. 1989). Therehave been some significant improvements in the work incentive rules since that article waswritten. See Sweeney, Update on Important Social Security and SSI Provisions of OBRA-89,24 CLEARINGHOUSE REV. 532, 532-533 (Oct. 1990), and Sweeney, supra note 65, at1267.

74. 20 C.F.R. Sec. 416.1515(a); POMS CN Secs. 00801.001, 00801.010, and 00801.015.D;POMS GN Sec. 03910.050; POMS DI Sec. 31001.010.A and C.4.

75. Omnibus Budget Reconciliation Act of 1989, Pub. L. No. 101-239, Sec. 10307(a), 103Stat. 2106, 2484-2485 (1989) (codified at 42 U.S.C. Secs. 406(a) and 1383(d)(2)), effectiveJune 1, 1991.

76. See, e.g., Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986) (Clearinghouse No. 32,771);Steiberger v. Heckler, 615 F. Supp. 1315 (S.D.N.Y. 1984), vacated, 801 F.2d 29 (2d Cir.1986), on remand, Steiberger v. Sullivan, 738 F. Supp. 916 (S.D.N.Y. 1990).

77. SSA recently issued a final regulation that creates a system for considering the opinions oftreating physicians that undermines the judicial decisions while claiming to follow them. See 56Fed. Reg. 36962 (Aug. 1, 1991).

78. 42 U.S.C. Sec. 423(d)(5)(B), added by Disability Benefits Reform Act of 1984, supra note60, at Sec. 9(b)(1).