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Continuing Disability Review Based Upon A Step 3 Approval

Austin, TX |

If a claimant is approved for Social Security Disability Benefits based upon meeting a step 3 listing, can any subsequent CDR's revoke future benefits because of a "supposed" change in a RFC evaluation (whether the claimant's RFC has actually improved or not)? When a claimant meets a step 3 listing during the application process, the disability evaluation should be concluded regardless to any findings at step 4 or step 5. If the qualifying and disabling impairment is a chronic disease with no cure and with no possible medical improvement, can/will the SSA "try" to find a way around this by claiming the RFC is now (suspiciously) capable of "some" work? I have read too many federal appeals where the SSA tries to deny previous approvals based upon similar circumstances (as if in retaliation).

I believe the SSA has fumbled with my claim for 4.5 years simply because they do not want to approve my claim at step 3 since I am a younger individual. The SSA has obviously disregarded direct evidence that proves I met listing level criteria by simply (and suspiciously) evaluating my claim based upon a ridiculous clerical error involving my AOD. For example, out of 10 references to my AOD, the SSA has continued to evaluate my claim using the ONE and ONLY incorrect reference to my AOD (a difference of 8 years), and after 4 years of complaining to anyone and everyone about this issue, I believe my claim is finally coming to a close with a step 3 approval. I find it very suspicious my claim may be approved after 4.5 years based upon the same evidence as I had on day one. If my claim is approved based upon meeting a step 3 listing, should I ever need to worry about CDR’s trying to revoke my benefits simply because the SSA believes I can work “other” jobs?

Attorney Answers 3

Posted

Does the SSA ever make a determination in a CDR that a claimant no longer meets a Listing, absolutely. This can indeed occur with even chronic conditions. (I cannot count the number of cessations I have seen for claimants who are suddenly no longer have mental retardation). I don't think that the DDS employees thinks of this in terms of "retaliation," though I do agree that younger individuals will likely face greater scrutiny. Rather, they usually just have a much more rigid view of what it takes to meet a listing. They have a tendency to look down on the reasoning of the ALJ's and look for reasons to second guess these Judges favorable determinations.

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Thanks for replying. Are you saying that DDS are the ones who conduct CDR's? Actually, I guess that would make sense (because a claimant can appeal a CDR). I never thought about "who" performs the CDR's until I just thought out loud just now. For my impairment, I have met listing 14.09C1 (current appeal is to determine proper AOD). There are only two criteria for this listing. Criteria 1 is vertebrae fusion shown on imaging. Criteria 2 is a kyphosis of X amount of degrees. In my mind, there is no way one could ever NOT continue to meet this listing in the future (unless there is major and successful surgery - which is highly unlikely anyone would risk total paralysis). There is no "safe" way to break up the fusion, and there is no "safe" way to straighten kyphosis of 45°). I also think that because there is almost zero chance my condition would ever improve to the point I no longer meet the listing criteria, they are acting overly cautious on my claim (to the point they are almost screwing with me - at least that's how all this feels). Other than an occasional (and hopefully routine CDR), I hope to NEVER go through this process again. I can't imagine those that are forced to.

Posted

Yes, SSA can review the matter and find that you do not meet a listing. Whether they will is just speculation at this point.

The information you obtain from this website is not legal advice.

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I agree with both of my colleagues, above. They can reverse on CDR. It is generally not accepted that a condition will forever be without a cure - ergo the CDR - because medical advances and cures are always possible.

Stephanie O. Joy, Esq., of JoyDisability, is an attorney licensed in New Jersey, but currently practicing federal Social Security Disability law in all 50 states from her PA office. Answers to questions are for general purposes only and do not establish an attorney-client relationship, nor do they constitute legal advice. Rather, if you need representation or legal advise, you need to make direct contact yourself, and inquire. We welcome and respond to all phone calls and emails.

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Thanks for replying. I'm talking less about the possibility of a CDR reversal, but more of the possibility considering my particular impairment. Ankylosing Spondylitis (which I have met listing 14.09C1) is more than a chronic, autoimmune disease. This disease has destroyed my spine; beyond a functional change, but a structural/foundation change. Once the spine fuses, there is no reverse (my spine is 80% fused); once kyphosis sets in (especially to a level of 45°), there is no safe technique to reduce the curvature to below 30°/45° - even if a method becomes available and is successful, I would still have the fusion along with all the other mechanical limitations just based upon that alone. I know I'm thinking too far in advance and prematurely; this post is more for thought than worry. Like I said above, I have read many federal appeals where peoples' benefits are revoked because of "supposed" medical improvement (which in many cases there was even documented medical decline). I believe the SSA is trying to make up for the "iffy" approvals from the past in order to save the future of the SSDI/SSI system. I'm just concerned the SSA will accomplish this detrimentally.

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