TN 10 (05-23)

DI 28010.035 Evaluating Listings with Minimum Time Periods at the Continuing Disability Review (CDR)

 

A. Definition of “listing with a minimum time period”

Listings with a minimum period of disability designate a minimum length of time the impairment meets the listing. Listings that contain the phrase “at least,” are not specific enough to allow the adjudicator to determine when medical improvement (MI) will occur. We refer to the diary criteria in these listings as “minimum periods of disability.”

For example:

  • Listing 7.17: “Consider under a disability for at least 12 consecutive months from the date of transplantation.”

  • Listing 104.06D: “Consider the infant to be under disability until the attainment of at least 1 year of age.”

Unlike the listings with a specified timeframe, listings such as these provide a minimum period of disability and not a fixed period.

B. Current listings with minimum time periods

The table below displaying listings with minimum time periods for which an impairment is considered disabling may not be all-inclusive and is subject to change due to updates and revisions in the listings. For the current medical listings, refer to DI 34000.000.

Current Listings with Minimum Time Periods

Adult Listing

Title XVI Child Listing

Impairment

Minimum Time Period in Listing

Consider under a disability until...

N/A

104.06D*

Congenital Heart Disease with a life-threatening congenital heart impairment that will require or already has required surgical treatment in the first year of life

The attainment of at least age 1

7.17

107.17

Hematological disorders treated by bone marrow or stem cell transplantation

At least 12 consecutive months from the date of transplantation

13.02E

N/A

Soft tissue cancer of the head and neck, treated with multimodal anticancer therapy

At least 18 months from the date of diagnosis

13.05C

113.05C

Lymphoma with bone marrow or stem cell transplantation

At least 12 months from the date of transplantation

13.06A

113.06A

Acute Leukemia

At least 24 months from the date of diagnosis or relapse, or at least 12 months from the date of bone marrow or stem cell transplantation, whichever is later

13.06B1

113.06B1

Chronic myelogenous leukemia, accelerated or blast phase

At least 24 months from the date of diagnosis or relapse, or at least 12 months from the date of bone marrow or stem cell transplantation, whichever is later

13.06B2a

113.06B2

Chronic myelogenous leukemia, chronic phase

At least 12 months from the date of bone marrow or stem cell transplantation

13.07B

N/A

Multiple myeloma with bone marrow or stem cell transplantation

At least 12 months from the date of transplantation

13.10E

N/A

Breast cancer with secondary lymphedema that is caused by anticancer therapy and treated by surgery to salvage or restore the functioning of an upper extremity

At least 12 months from the date of the surgery that treated the secondary lymphedema

13.14C

N/A

Lung cancer, specifically carcinoma of the superior sulcus with multimodal anticancer therapy

At least 18 months from the date of diagnosis

13.28A

N/A

Cancer treated by bone marrow or stem cell transplantation with allogeneic transplantation

At least 12 months from the date of transplantation

13.28B

N/A

Cancer treated by bone marrow or stem cell transplantation with autologous transplantation

At least 12 months from the date of the first treatment under the treatment plan that includes transplantation

14.07B

114.07B

Immune deficiency disorders, excluding HIV infection, with stem cell transplantation

At least 12 months from the date of transplantation

NOTE: Listing 104.06D in the table above marked with an asterisk, indicates that we consider the listing met until the child at least obtains age 1. Schedule the appropriate diary based on the medical evidence, until at least age 1 of the child. Depending on the medical evidence, it may be appropriate to schedule a longer diary beyond age 1.

C. Evaluating impairments that met or equaled a listing with a minimum period of disability in a CDR determination

1. Title II and adult Title XVI CDRs involving a listing with a minimum period of disability

a. Follow the adult CDR sequential evaluation process

At the CDR, evaluate the impairments that met or equaled a listing with a minimum period of disability following the CDR sequential evaluation process, including considering MI and related steps. For additional information about the CDR sequential evaluation process, see DI 28005.015 for the Title II and adult Title XVI CDR evaluation.

b. Considerations when evaluating a Title II or adult Title XVI CDR with a listing with a minimum period of disability

  • If the minimum period of disability has expired at the time of the CDR but the disabling impairment(s) does not show improvement, a finding “no MI” is possible.

  • Depending on the evidence, it may be more appropriate to find that an individual’s impairment(s) meets or equals a current listing or the original listing, if that listing’s criteria are still met.

  • We do not use a minimum period of disability within a listing as an “expiration date” to determine whether MI has occurred. See DI 28010.035E for a case example.

NOTE: Listings that designate a minimum period of disability (e.g., “at least 24 months after the diagnosis) may still be disabling at the time of the CDR. The impairment(s) may meet or equal a current listing, may still meet the original listing if the minimum period has not passed, or may otherwise show that disability continues. Unlike listings that specify a timeframe (see DI 28010.030), listings that designate a minimum period of disability do not provide a fixed period for which the impairment(s) meets the listing.

2. Title XVI child CDR cases involving a listing with a minimum period of disability

a. Follow the child CDR sequential evaluation process

At the CDR, evaluate the impairments that met or equaled a listing with a minimum period of disability following the CDR sequential evaluation process. For additional information about the child CDR sequential evaluation process, see DI 28005.030.

b. Considerations when evaluating child CDR cases with a listing with an expired minimum period of disability

  • Consider if MI has occurred in the child’s impairment(s) at Step 1, see DI 28010.015 for a definition of MI.

  • Depending on the evidence, it may be more appropriate to find that an individual’s impairment(s) meets or equals a current listing or the original listing, if that listing’s criteria are still met.

  • Evaluate any resulting impairment(s) under the appropriate body system criteria as designated in the introductory language or as directed in the individual listing(s).

  • If there is MI and the impairment(s) does not meet or equal the comparison point decision (CPD) listing, continue to Step 3.

NOTE: Listings that designate a minimum period of disability (e.g., “at least 24 months after the diagnosis) may still be disabling at the time of the CDR. The impairment(s) may meet or equal a current listing, may still meet the original listing if the minimum period has not passed, or may otherwise show that disability continues. Unlike listings that specify a timeframe (see DI 28010.030), listings that designate a minimum period of disability do not provide a fixed period for which the impairment(s) meets the listing.

D. Case Examples

1. Title II/adult Title XVI CDR case - minimum period of disability at the CPD, meets current listing at the CDR

CPD evidence: The individual’s impairment(s) met listing 13.06A at the CPD due to acute leukemia. The listing directs that the individual should be considered under a disability for at least 24 months from the date of the diagnosis or relapse, or at least 12 months from the date of bone marrow or stem cell transplantation, whichever is later. The individual was diagnosed with leukemia on 04/03/2020 and underwent a bone marrow transplantation on 09/17/2020. The adjudicator set the medical re-examination diary for 24 months after the date of diagnosis.

CDR evidence: Conducted in 05/2022. The individual underwent treatment after the CPD, and a bone marrow biopsy from 03/02/2021 showed no active signs of disease and indicated that the individual’s cancer was in remission. Approximately 8 months after the bone marrow biopsy, the individual followed up with the oncologist with complaints of general fatigue, light-headedness, and dizziness. The oncologist ordered lab testing and noticed abnormal white blood cells and platelets. A bone marrow aspirate was completed in 01/2022 that confirmed the presence of recurrent acute leukemia. The individual started chemotherapy again in 02/2022 and treatment is scheduled for a course of approximately 10 months. The individual did not receive another bone marrow transplant after the CPD and was not scheduled for one when the disability examiner spoke with the individual in 05/2022.

Discussion: The adjudicator processes a continuance at step 2 of the Title II and adult Title XVI CDR sequential evaluation process, finding that the individual’s impairment meets listing 13.06A due to a relapse of the individual’s leukemia. The adjudicator sets a medical re-examination diary for 24 months from the date of relapse (i.e., 01/2024). MI and the CPD listing are not considered in this example because the impairment meets a listing at an earlier step in the sequential evaluation process.

2. Title XVI adult CDR case - minimum period of disability at the CPD, meets a current listing at the CDR

CPD evidence: The individual’s impairment(s) met listing 13.10E at the CPD due to breast cancer with secondary lymphedema to an upper extremity. The listing directs that the individual should be considered under a disability for at least 12 months from the date of the surgery that treated the secondary lymphedema. The individual had surgery on the upper extremity on 06/12/2021 and the examiner set the medical re-examination diary for 12 months after the date of this surgery.

CDR evidence: Conducted in 08/2022. The individual continued chemotherapy treatment after the CPD and the surgery to the upper extremity. At a follow-up visit on 06/18/2022, the individual still complained of tenderness and swelling in the upper extremity. Since the surgery, the individual has had difficulty with range of motion due to scar tissue and has persistent numbness and tingling in the hands. She has not had additional surgery to the upper extremity since the last surgery performed 06/12/2021. A PET scan performed in 06/2022 shows the breast cancer has responded to treatment and has reduced in grade, but the cancer is still present. The oncologist notes from 06/2022 indicate that the individual will take a break from chemotherapy for two months to allow her body time to recover, as she has not been tolerating the continuous treatment well and has significant fatigue and weakness.

There is a plan to start at least 6 more cycles of treatment, beginning in 09/2022. At a follow-up in 07/2022, her surgeon notes that an additional surgery to her upper extremity will likely be scheduled after she completes the additional rounds of chemotherapy. The surgeon remarks that another surgery is necessary to reduce scar tissue and try to improve function but feels that given the claimant’s fatigue and difficulty tolerating treatment, an additional surgical recovery period is not ideal while she is enduring chemotherapy treatment.

Discussion: The adjudicator processes a continuance at step 2 of the Title II and adult Title XVI CDR sequential evaluation process and meets listing 13.10E.” The adjudicator sets a medical re-examination diary for 09/2025. MI and the CPD listing are not considered in this example because the impairment meets a current listing earlier in the sequential evaluation process.

The adjudicator reasons that the individual’s impairment persists and determines that a 3-year diary is appropriate given the ongoing treatment and residual limitations in the upper extremity. The adjudicator further reasons that the 3-year diary is appropriate in this situation as the individual continues to exhibit a listing level impairment, has additional chemotherapy and surgery planned, and already received an MIE diary at the CPD. The determination is also consistent with instructions in DI 26525.020B.2.

3. Title XVI child CDR case – minimum period of disability at the CPD, MI is demonstrated, and CPD listing is no longer met

CPD evidence: The child’s congenital heart disease met listing 104.06D at the CPD. At two months of age, the child underwent surgery due to a life-threatening congenital heart impairment. The child was diagnosed with ventricular septal defect. The adjudicator scheduled the diary to expire on the child’s first birthday.

CDR evidence: The CDR is initiated when the child is 13 months old. Medical evidence notes that the child recovered well from the surgery performed at two months of age, and has no tachypnea, and a normal heart rate and rhythm on examination. O2 saturation on room air is normal on examinations and there are no episodes of syncope or hypoxemia. The child does not have difficulty feeding and is in the seventh percentile in terms of weight-for-length.

Discussion: The examinations indicate successful recovery from the heart surgery to repair a ventricular septal defect and improvement in cardiac function without respiratory impairment. Therefore, MI is demonstrated at Step 1. The CPD listing is no longer met at Step 2, as the listing criteria is not met at the CDR and the minimum timeframe has passed. If a Group II exception does not apply, the adjudicator will continue to Step 3.

E. Diary scheduling considerations for a CDR involving a listing with a minimum period of disability

Many of the listings with a minimum period of disability indicate a medical improvement expected (MIE) diary in the listing criteria. If the individual was assigned a diary with a minimum period of disability at the CPD and the original impairment continues to be disabling at the CDR, a MIE diary should rarely be set again. At CDR, the adjudicator must carefully evaluate the medical evidence and determine the most appropriate diary based on medical severity at the time of the CDR. There are situations in a CDR, however, where another MIE diary may be appropriate at the time of the CDR. See DI 26525.020B.2. for additional information.

F. References

  • DI 28010.029 Overview of How to Evaluate Listings with Time Periods for Which an Impairment is Considered Disabling at the Continuing Disability Review (CDR)

  • DI 28010.030 Evaluating Listings with a Specified Timeframe at the Continuing Disability Review (CDR)

  • DI 28010.040 Evaluating Listings with Age-Based Period of Disability at the Continuing Disability Review (CDR)

 


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DI 28010.035 - Evaluating Listings with Minimum Time Periods at the Continuing Disability Review (CDR) - 05/25/2023
Batch run: 05/25/2023
Rev:05/25/2023