November 26, 2001
Mr. Kenneth D. Nibali, Associate Commissioner
Social Security Administration
Office of Disability
560 Altmeyer Building
6401 Security Boulevard
Baltimore, Maryland 21235
Dear Mr. Nibali:
The National Association of Disability Examiners (NADE) would like to bring an issue to your attention. Members attending our recently concluded national training conference endorsed a resolution that calls upon the Social Security Administration to create an additional exception to the medical improvement review standard (MIRS). NADE asks that this additional exception for MIRS be created to address those situations in which Lost Folder CDR claims are determined to have non-severe impairments based on current medical information.
The exceptions to MIRS, as listed in the Code of Federal Regulations (CFR), address specific situations where it was determined that the necessity of having to apply MIRS would place an undue burden upon SSA’s need to accurately insure that only deserving beneficiaries continued to receive disability benefits. NADE applauds SSA’s vision in creating these exceptions.
Currently, there is no exception to MIRS in the CFR that addresses the issue that NADE would like to have addressed. Title II and Title XVI disability beneficiaries, whose cases are pulled for a Continuing Disability Review (CDR), and who are subsequently determined to have physical or mental impairments that are non-severe, but whose prior disability claim folders cannot be located, must have their benefits continued. If the prior folder cannot be located, it cannot be determined how severe the impairment was at the time of the Comparison Point Decision (CPD). Therefore, a determination of medical improvement cannot be made. While this practice does protect the beneficiary from subsequent differences of opinion regarding impairment severity, it loses validity when a current determination is made that the beneficiary’s impairment is non-severe. Since it seems unlikely that the original decision to award benefits would have been made if the impairment was non-severe, a current determination at the time of the CDR that the impairment is non-severe would indicate that medical improvement has occurred.
NADE contends that an exception to the medical improvement review standard is needed to permit a cessation of benefits in such cases. Failure to do so will require that the current practice of having to continue benefits remain in place. These beneficiaries will become permanent fixtures on the disability rolls. It will be impossible to cease benefits in the future for these beneficiaries since subsequent CDR decisions would have to use as their comparison point the decision that continued benefits even though the impairment was non-severe.
Considering SSA’s fiduciary obligation to protect disability funds that are held in trust, favorable action upon our recommendation seems very appropriate. SSA should not continue to afford legal protections to disability beneficiaries who are truly no longer disabled.
NADE would welcome the opportunity to discuss this matter with you further and to assist SSA in drafting new language to be inserted into the CFR that would create this additional exception to the medical improvement review standard.
Jeffrey H. Price, President
National Association of Disability Examiners
cc: NADE Board of Directors Office of General Counsel, Social Security Administration