As you probably know, Social Security uses a process called “continuing disability review” (CDR) to evaluate approved SSDI and SSI claimants for medical improvement.

If Social Security determines that your medical or mental health condition has improved to the point where you could return to work, they will move to terminate your benefits. If you receive notice of termination you have the right to appeal and eventually to appear before an administrative law judge for a determination of whether you remain disabled under SSA’s rules.

The appeal process is beyond the scope of this article but I do want to emphasize one important issue – if you do receive notice of termination you have to notify SSA within ten (10) days of that notice if you want your benefits to continue while you appeal. If you do nothing, your benefits will terminate and your appeal (which could take a year or longer) will be for the purpose of restarting benefits.

If you choose to have benefits continue, there will be no “past due benefits” so you will not be able to hire a lawyer to assist you under a contingency fee contract. If benefits are terminated, you should be able to find a lawyer to represent you under a contingency fee, but you will have no income for the next year or so.

Why Would Social Security Move to Terminate my Benefits?

Social Security defines “disability” in terms of how your medical problems impact your capacity for work. You were approved because a Social Security adjudicator or judge determined that you would not be able to engage in “substantial gainful activity” because of your medical problem. However, Social Security does not assume that your medical problem will necessarily be permanent.

Further, there is a narrative in Congress – not supported by any evidence, by the way – that disability judges are too lenient when approving cases and that a significant percentage of disability claimants are either exaggerating their impairments or committing outright fraud. As such, Congress and frequently members of the executive branch of government regularly put pressure on Social Security to either tighten its standards for approving claimants, or put more efforts into terminating approved claimants.

Over the past ten to fifteen years, Social Security has actively and passively made it more difficult for claimants to win benefits, and they have put more resources into their efforts to terminate approved claimants.

In 2009, for example, the national approval rate at hearings was 63%. Since then approval rates have been falling and now just over 45% of disability claimants are being approved at hearings.

More recently, SSA has issued a rule to gradually replace administrative law judges with SSA lawyers. Administrative law judges operate within the parameters of federal administrative procedure rules which make them independent. By contrast, SSA lawyers acting as decision makers have far less independence and will be subject to political pressures from SSA administrators. We shall see if this proposed rule actually gets implemented but the trend towards reducing awards is clear.

Social Security has also made it more difficult for claimants to retain lawyers. As noted above, if you receive a notice of termination but elect to have benefits continue while you appeal, you will not be able to hire lawyer unless you can come up with thousands of dollars in cash – an unlikely scenario for claimants who have been surviving on $1,000 to $2,000 per month.

Further, SSA caps attorney’s fees for disability lawyers at 25% with a limit of $6,000. This $6,000 fee cap has not been increased in close to 15 years despite the reality that the cost of staffing and maintaining a law office has gone up. As a practical matter this means that disability lawyers will be less likely to accept more challenging cases in an effort to remain profitable.

Congress is also well aware of demographic changes in the United States. Baby boomers are retiring, and tax revenue will not be enough to support both the Social Security retirement and Social Security disability trust funds. Social Security retirement affects every voter so tweaking this program is basically off limits. Disability beneficiaries, however, are fair game.

Disability beneficiaries are also more likely to have gaps in medical treatment, thereby making it easier for adjudicators and judges to conclude that there has been medical improvement. Remember that Medicare for SSDI claimants does not kick in for two years following the first eligibility for payment – so it is very common for approved SSDI claimants to have no source of insurance for medical care after approval.

Further, for someone with SSDI income of, say $1,500 per month, it can be all but impossible to make co-payments or purchase medicine.

I don’t want you to think that SSA’s goal is to terminate benefits for every claimant but you should be aware of the anti-claimant attitude by some members of Congress and the financial reality that lawmakers face.

How Does a Termination Actually Work?

Social Security computers flag certain disability claimants for review in an ongoing effort to reduce the disability rolls. Some of these flags arise from hearing decisions where judges make not that a particular claimant is likely to see medical improvement within the next 12 months.

SSA’s computers also flag younger claimants, and claimants with medical or mental health conditions that, in their view, are likely to improve.

If your case is flagged for review, SSA will send you either a short form review (SSA-455) or a long form review (SSA-454). Generally speaking the short form represents more of a fishing expedition, whereas the long form constitutes a full review and is more likely to result in a move to terminate.

If SSA determines that your medical issues no longer preclude work, they will move to terminate benefits. It is at this point where you need to decide “yes” or “no” on continuing to receive benefits within ten days. You also have the right to appeal within sixty days from receipt of the termination notice, which means that you have to file a Request for Reconsideration (just like you did when applying for benefits) and if that is denied, you would request a hearing.

Are You Risking a Termination by Engaging in Part Time Work or Volunteer Work?

I regularly get emails and video comments from approved claimants who want to know what, if anything, they can do as an approved disability claimant. Does SSA expect them to sit on a recliner at home staring at the wall?

Is it permissible to own and manage a stock portfolio, engage in day trading, raise chickens or breed dogs, volunteer at a local hospital, school or museum?

I think that SSA would evaluate each of these activities on a case by case basis to determine if any of this looks like work. Are you performing your activity on a regular schedule? If so, how many days per week? Do you have the freedom to come and go based on how you feel? Are you getting paid cash? Does your activity require focus and concentration?

• For example, if you own $50,000 worth of stocks and mutual funds and you occasionally buy or sell investments, that does not small like substantial gainful activity. If you are a day trader who monitors the market four days a week and actively buys and sells securities, that does smell like work.
• If you watch your granddaughter once or twice a week for an hour when your son has to work overtime, that is not equivalent to work. But if you sit on a daily basis with an elderly relative who has dementia, that looks like you are functioning as a caregiver, which is equivalent to a job.
• If you attend one online class per week in an effort to keep your mind sharp and to eventually progress towards a degree, you are unlikely to have any problems but if you are attending three online classes with papers and exams due, SSA may conclude that your activity is “substantial.”

Keep in mind that SSA will focus on what you are doing more that how much you are paid. Gross income is evidence of substantial gainful activity but you activities are more important.

I advise my clients and those asking about activities to keep a detailed time long – what exactly are they doing, how many hours per day and per week are they engaging in this activity, how much are they being paid (cash or otherwise) and what special considerations are they getting (i.e., freedom to rest, come in late or miss days).

If you look at Form SSA-455 it asks “have you worked for someone or been self employed?” and “have you attended any school or work training program?” You absolutely must be honest in responding to these questions but my sense (and I suspect you would agree) that these questions don’t necessarily lend themselves to yes or no responses. You can and should add a more detailed explanation if appropriate.

I also advise my client to be very careful about posting anything publicly on social media. It would not surprise me at all if SSA reviews public posts for evidence of substantial gainful activity.

How Can You Protect Yourself Against Termination of Benefits?

I think that your best insurance against termination of benefits is medical treatment. As long as you continue to visit your doctors, and assuming that your doctor will continue to support you with letters and functional capacity forms that document significant problems you would likely have trying to work even a simple job, you position yourself to demonstrate to an adjudicator or judge that whatever activity you are doing is not equivalent to “substantial gainful activity.”

Gaps in treatment, discontinuation of treatment, and non-compliance with treatment make it difficult to win benefits and these same factors make it difficult to remain on benefits. Similarly you should always position yourself as a reluctant claimant – someone who hates the idea of being labeled as “disabled” and who would return to work if medically able.

Further if you do engage in volunteer work or occasional day jobs, keep good records and be very clear if you mention these activities to your doctor. I have reviewed many medical records that casually mention that the patient hurt himself while working or while performing some physical activity. Without context, SSA could use those statements as support for a termination action.

Conclusion

I think that every approved disability claimant should assume that their records will be reviewed and that they will be asked to complete Form SSA-455 or SSA-454. Social Security views all but the most seriously ill claimants as having the potential for improvement. Social Security disability is an evidence based system so if there is a disconnect between the reality of your health status and what the written record shows, you could be at risk.