Can one application produce two PODs?

JOA · Joined: 13 May 2004 Posts: 2131

This is not about any particular case. It’s about an argument.

Is there any circumstance for which a single application could produce two separate and disjoint periods of disability? Stated differently, can a single decision find a claimant disabled for a period, not disabled for a period, and then disabled again?

This question does not involve any CDR issues. I’m talking about a single application that is “live” at the point of decision.

My answer is that yes, with the right facts a single application might produce two disjoint PODs. It’s hard to support my view with specific regs. But consider: if the first POD for any particular application was all that could be awarded, then there’d be no need to consider the period after a CPOD. As long as we’re not talking about a stipulated CPOD, this obviously leaves an unadjudicated period. And any period that requires adjudication is a period for which there’s the potential of a POD.

Are there different views out there?

Charles T. Hall · Joined: 13 May 2004 Posts: 487 Location: Raleigh, NC

We ran into this issue a lot with the Hyatt class action. SSA was forced to do new determinations on many old claims. In quite a few cases there was a good argument that the claimant was entitled to a closed period on the old claim but had become disabled again at a later time, so there ought to be two periods of disability established. SSA's position was that this took two claims, NC attorneys were having claimants file a new claim at the time the Hyatt review came up, just to cover the bases. At first, SSA didn't know what to make of these new claims, but eventually they agreed that this was the right thing to do and started taking them even on unrepresented claimants.

I've looked in POMS and didn't find a reference to this policy, but I guess it's there somewhere. I've run into this in other contexts over the years. If two periods of disability are a possibility, you need to have the claimant file a new claim and let the ALJ adjudicate both.

JOA · Joined: 13 May 2004 Posts: 2131

Mr. Hall:

I still like my interpretation. I had only a few minutes left from lunch to look for stuff. But consider the following, from DI 26510.010 about how to fill out an SSA-831 (emphasis added) http://policy.ssa.gov/poms.nsf/36f3b2ee954f0075852568c100630558/346223a763eb235485256e640011f073?OpenDocument:

Complete Item 15 as follows:
Check block A. and enter the date of onset of disability in all cases where the claimant is found under a disability on or before the date the insured status requirement is last met.
Where a closed period of disability is established, also check block B. and enter the date (month/day/year) disability ceased.
Where both a closed and open period of disability are established based on a single application, prepare two Forms SSA-831-U3's, one for the closed period and one for the open period.

This same “on a single application” language appears in several places, all about the SSA-831. I couldn’t find anything better.

I’ll give you dollars to donuts that the SDW specialists aren’t getting SSI beneficiaries to sign multiple applications when the beneficiary is in and out of CPODs because of SGA.

Charles T. Hall · Joined: 13 May 2004 Posts: 487 Location: Raleigh, NC

I like the interpretation that allows two periods of disability on one claim too, but here's some language from another POMS section:

If a new impairment(s) again disables the individual after the cessation month (even within the 2-month period before benefits end), the original period of disability does not continue. The break in the continuity of disability requires establishing a new period of disability.
A new application is usually required.

http://policy.ssa.gov/poms.nsf/36f3b2ee954f0075852568c100630558/96e52f8b494d93ca85256e310065203a?OpenDocument

JOA · Joined: 13 May 2004 Posts: 2131

Mr. Hall:

The section you linked it about CDRs. I was careful to exclude CDRs for the original post. For a CDR, you see, the application had been entirely adjudicated. It's dead. The cessation determination is a new determination. It does not refloat the prior application. With a dead prior application, you’d need a new one to go forward with a new POD.

No, the scenario I had in mind is one is which both PODs predate the point at which the original application is finally adjudicated.

BTW, you did catch the "usually" in your linked section, didn't you? I think even with what you report you've been told in the past that there's hope that given the right circumstance of a live application, two PODs are possible.

JudgMental · Joined: 13 May 2004 Posts: 391

I just issued a decision with two PODs on a single app. The claimant had been disabled (combina. back injury, intellectual deficits, personality disorder, and depression), recovered sufficiently to return to SGA, completed a trial work period, began a period of extended eligibility, and then injured his back even more seriously.

JOA · Joined: 13 May 2004 Posts: 2131

See the headpost. This follow-up note is meant for people who know jargon.

Six years later I get the same answer as back in 2004. But sadly on no more solid foundation than before. I’m still convinced that an application is live till it’s dead. And when an application's “prospective life” extends to the point that it covers multiple periods of disability, these can all be paid without a second application.

I do find a couple of tidbits. But nothing open for sharing, and all of it deeply subregulatory:

1. Some SDW stuff that talks about multiple PODs but isn’t clear whether these are must be based on multiple protected filing dates.

2. A 2006 Q&A on this same SDW topic that expressly says that one filing date is all you need for multiple PODs. But this Q&A is expired, and is available only “for historical purposes.”

3. Some systems instructions for “coding multiple periods of disability (DIB) when the periods involved are based on the filing of a single application.” But ALL systems instructions are classed as sensitive and can't be shared.

John Polofka · Joined: 13 May 2004 Posts: 93

I was discussing this issue with another attorney today and it was interesting to see this recent post by JOA.

Could there be two periods of disability with one application where the claimant returns to work for more than 9 months? As I read the regs, SSR 05-02 will not permit an unsuccessful work attempt if earnings are greater than SGA for 6 months. Even if the RTW was at SGA for more than 9 months, with a significant accommodation that would usually not be available to the general workforce, it would not qualify as UWA or TWP? Correct?

If there was no improvement in the claimant's condition, but he was able to find work that made a significant accommodation, and the reason that the work ended was because the accommodation would have to increase, (e.g. number and length of rest periods or additional days off) could the second period be a POD without the need for a new application?

Would it make a difference if the insured status expired before the second POD?

JOA · Joined: 13 May 2004 Posts: 2131

Dear JP:

I wonder if you and your colleague have thought all the way through your question. Before there can be a second POD, the first POD has to end. In the account you have offered, what is the terminating event for the first POD?

Mind you, I'm not saying that for your hypothetical there isn't a terminating event for a first POD. But on the (limited) account you have offered, I'm not seeing one.

http://www.ssa.gov/OP_Home/cfr20/404/404-0321.htm

If there's no terminating event, all your other questions evaporate.

Craig Jarvis · Posted: Fri Sep 10, 2010 01:52 pm Post subject:

JOA: Any period of SGA lasting more than 9 months could be a terminating event. If a person works one month after the TWP over SGA and the circumstances under which the work ended do not qualify it as an unsuccessful work attempt, then the disability has ended. Or do I have something wrong? (Certainly a possibility)

JOA · Joined: 13 May 2004 Posts: 2131

Craig:

I suspect you are equating cessation of disability with the end of a period of disability. These are not normally coterminous events.

To see this, first look at the 404.321(c), linked in the post above:

Craig Jarvis · Posted: Fri Sep 10, 2010 08:18 pm Post subject:

Ahh. Thank you for setting me straight yet again.