The Social Security Administration has been putting increasing emphasis on terminating disability benefits for claimants.
In theory, SSA is looking for individuals whose medical conditions have improved but I see many comments on my YouTube channel to suggest that there is a certain randomness to cases selected for termination.If I had to guess, I would suspect that there is some sort of computer algorithm being used to identify likely cases for termination. Again I have no inside knowledge about this but there are some of the factors that seem to signal which cases are flagged:
- medical conditions that cannot be confirmed by objective testing – including such diagnoses as fibromyalgia, CRPS, depression, anxiety, bi-polar disorder, PTSD. Claims for these conditions were readily approved 5+ years ago, but are not being approved much now.
- medical conditions where there have been recent improvements in effectiveness of treatment – including diagnoses like Type II diabetes, hypertension, HIV infection, hepatitis.
- chronic back pain – back pain is the most common diagnosis in disability claims and SSA is demanding a higher level of severity for current claims; they are applying the same heightened standards for older claims now being reviewed
- cases where claimants are age 45 or younger – here, too, SSA has become much more demanding in approving younger claimants and the same heightened scrutiny is being applied to approved claimants being reviewed
- cases where the approved claimant is not receiving on-going treatment. SSA will assume that if you are not getting treatment then you must not be significantly impaired.
- regional reviews – approval rates by judges in certain parts of the country 5 to 10 years ago were significantly higher than they are now. I would not be surprised if your location or even the judge who approved your case was not a factor in flagging cases for review
What to Do if You Receive a Notice of Cessation of Benefits
When you receive a “notice of cessation of benefits,” you do have the option of appealing. The first step in this appeal is to file a request for reconsideration. The form to use is Form SSA-789 and Form SSA-3441.
When you appeal you have the option of asking SSA to continue paying benefits while your appeal is pending. However, you must notify SSA of this request within ten (10) days of receiving the notice of cessation.
Ten days is a very short period of time – by contrast, every other appeal in a Social Security disability case allows for a 60 day time frame.
Further, SSA does not give you a form to request continuation of benefits. What I use is Form SSA-795
As far as what to say, I use the language from SSA’s Program Operations Manual – https://secure.ssa.gov/poms.nsf/lnx/0412095170. You have to type or write your choice on the the form then get this form back to SSA within 10 days from your receipt of the cessation of benefits.
I would mail (using return receipt requested), fax, hand deliver or all of the above. I would get this request in immediately. Even if you really do get the form requesting continuation of benefits to SSA, there is no guarantee they won’t lose your paperwork or deny that you submitted this request on time. If SSA loses or does not process your request, you have no recourse – the money gets cut off.
You Will Have Trouble Finding Legal Representation
A practical problem that you will face if SSA moves to terminate your benefits will involving finding a lawyer to help you. In new cases, where a claimant is seeking benefits, lawyers like me accept cases under a no fee unless you win contract whereby we are paid 25% of past due benefits with a cap of $6,000.
- If you elect to continue receiving benefits (and SSA continues to pay you), there would obviously be no past due benefits from which a lawyer could collect a contingency fee.
- If your benefits are stopped – either because you did not ask for them to be continued or because SSA did not honor your request – the amount of past due benefits at issue when you get to a hearing a year or so down the line may only be 12 to 18 months. Many lawyers will not accept these cases because the fees are too small.
For example, if your benefit is $1,000 per month and your hearing is 12 months after cessation, the “past due” available is $12,000. 25% of this is $3,000, which is half of what a lawyer would earn for the same work in a new case. Social Security disability is not a high margin business for lawyers. The $6,000 fee cap has not been raised in over 10 years, even as office expenses, support staff salaries and other expenses have gone up. At the same time, approval rates at hearing have dropped by one-third. This means that Social Security disability lawyers have to be extremely selective when choosing cases.
Additionally, termination cases often have a lower approval rate, which makes these cases riskier for lawyers to accept under a no fee unless you win contract.
If you have concluded, as I have, that SSA wants to make it difficult for claimants seeking benefits or facing a cessation to hire legal counsel, you would be right. Attorneys have to pay the same rent, utilities, support staff and office costs regardless of SSA’s approval rates or internal policies. Disabled people have no lobby in Washington, and the narrative in Congress is that most disability claimants are exaggerating or outright faking
Congressional and public attitudes about disability claims changes over time. Right now is not a good time for people seeking disability benefits.
What Can You Do?
If you decide to appeal the cessation of benefits and you elect to continue receiving benefits, and you want a lawyer to help you, you are going to have to find a way to pay a lawyer out of pocket. If I take a cessation case, I am going to ask for a retainer of $3,000 to $4,000 up front. I do not take these cases under a contingency, meaning I will ask SSA to approve my fee, win or lose.
If you appeal and do not elect to continue receiving benefits, there will be past due benefits. In these cases, I may ask for a minimum fee retainer and enter into a contingency fee contract. This protects me in the event that the 25% is too small.
I am very selective when it comes to cessation cases and I generally will not travel to try a cessation case. Your best bet, therefore, is likely going to be looking for a local Social Security disability lawyer who will work with you on fees.