Effective Dates: 09/04/2015 - Present Previous | Next

TN 44 (06-23)

DI 28020.360 Group I Exception - Prior Error, Required and Material Evidence Was Missing

CITATIONS:

20 CFR §404.1594(d)(4)(ii),
20 CFR §416.994(b)(3)(iv)(B)

A. When the required and material evidence was missing error exception applies

This category of error applies if:

  • •

    at the time of the prior determination or decision, required and material evidence of the severity of the impairment(s) was missing; and

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    the evidence in question becomes available, and upon review, it now shows that if the evidence had been present before, we would not have found the individual disabled.

B. How to apply the required and material evidence was missing error exception

Consider evidence “missing” in this context if required and material evidence (such as evidence required by the Listing of Impairments) was not obtained.

Do not develop just to obtain the missing evidence. However, include the missing evidence in file if received during routine current development.

NOTE: If the individual medically equaled a listing at the time of the prior determination or decision, do not substitute judgment in applying the error exception. Do not apply the required and material evidence error for the absence of a particular test required at the time of the prior determination if the overall evidence supported that the impairment(s) were at least equal in severity and duration to the criteria of any listed impairment. If a specified medical finding was missing in a medical equals decision at the time of the prior determination, the other medical findings of greater or equal significance relating to the same impairment should be present in the evidence and explained in the rationale content, see DI 28090.040.

C. Examples of the required and material evidence was missing error exception

1. Pulmonary Disease - Error Applies

Comparison point decision (CPD): At the time of the CPD, the adjudicator found the individual disabled based on chronic obstructive pulmonary disease (COPD) documented primarily by pulmonary function testing (PFT) results. The evidence showed the individual could do only light work. The adjudicator did not obtain required spirometric tracings of the testing.

Continuing disability review (CDR) decision: The physician resubmitted the original PFT report along with corresponding spirometric tracings. A review of the tracings shows the test was invalid. Current PFT (including spirometric tracings) reveals that the individual's COPD does not significantly limit the ability to perform basic work activities in any way. Review of corresponding medical evidence from the prior decision otherwise was not sufficient to support a disabling impairment.

Explanation: Find the prior decision in error.

2. Heart Disease - Error Applies

CPD: Listing 4.04B (three separate ischemic episodes within a consecutive 12-month period, each episode either requiring revascularization or documented as not amenable to revascularization) was cited as the reason for the medical decision at the CPD.

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    Although listing 4.04B criteria required an angioplasty or bypass surgery with the aforementioned ischemic episodes, the DDS never received records from Hospital C, the hospital where the third episode occurred.

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    The claimant’s cardiologist referenced stent placement in a follow up visit after the discharge from Hospital C and what appeared to be the third episode.

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    The disability determination services (DDS) medical consultant rationalized that the impairment met the listing, despite lacking Hospital C's records, since the hospitalization (presumably) for the third episode was referenced in the records of the individual's own medical source.

CDR decision: During the CDR, DDS receives Hospital C's records that were missing from the CPD.

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    The hospital records from the third episode referenced at the CPD indicate that there was no angioplasty or bypass surgery at that time.

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    DDS reviewed the cardiologist’s records cited in the CPD decision rationale and determined that the cardiologist referred to stent placement as part of the claimant’s history.

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    The records show the impairment did not meet listing 4.04B at the time of the prior determination, nor were any of the subsections of the listing met.

Explanation: Because disability would not have been found if Hospital C's records had been received, indicating that only two angioplasty procedures were completed within the 12-month period at the CPD, find the error exception met.

To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0428020360
DI 28020.360 - Group I Exception - Prior Error, Required and Material Evidence Was Missing - 09/04/2015
Batch run: 03/09/2026
Rev:09/04/2015