TN 16 (04-11)
GN 04440.112 When You Cannot Use the Probability of Reversal (POR) Rule
A. When not to apply POR
Do not use POR in these situations:
1. Type of deficiency
The POR expedient applies only to medical or vocational documentation deficiencies. Therefore, do not apply POR for the following types of deficiencies:
Decisional deficiencies (GN 04440.003), or
Procedural documentation deficiencies (GN 04440.945)
NOTE: While POR is considered in classifying a 12-month medical evidence of record (MER) technical corrective action (TCA), however, there is a statutory requirement to “consider all evidence available in such individual’s case record, and develop a complete medical history of at least the preceding 12 months for any case in which a determination is made that the individual is not under a disability.” Twelve-month MER TCAs, which are limited to unfavorable or less than fully favorable determinations, are TCAs that you must return to the adjudicating component for development. See Social Security Act, 42 U.S.C.§§223(d)(5)(B)
2. Level of adjudication
Consider the POR expedient only to a classify a deficiency versus a TCA in any unfavorable or less than fully favorable determination that is:
above the initial level (i.e., a reconsideration of an initial or continuing disability review (CDR) case) in a non-prototype state, or
at the initial level in a prototype state (i.e., Alabama, Alaska, California (S90 and V90 only), Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York, and Pennsylvania).
When the next level of appeal in a claim is a hearing, the review component cannot apply POR. At the hearing level, the administrative law judge (ALJ) is required to document the case record completely. The ALJ is required to obtain a clear and concise record containing all relevant facts. Therefore, the fact that obtaining the missing documentation is unlikely to change the determination is immaterial in a less than fully favorable reconsideration determination in a non-prototype state or in an initial determination in a prototype case.
NOTE: In this situation, obtain the documentation because the evidentiary record must be complete. For example, if POR is precluded in reconsideration denial cases, and the documentation must be obtained, that doesn’t mean you should cite a group I deficiency. If the only reason for returning the case to the adjudicating component is to complete the record in the event of a hearing, and the review component would not have sent the case back otherwise, do not cite a deficiency.
3. Inadequate medical evidence
When the file contains only "inadequate medical evidence," do not apply POR and classify the medical documentation deficiency as a group I or group II deficiency. What constitutes "inadequate medical evidence" depends on the type of case involved and the nature of the medical evidence, if any, in file. "Inadequate medical evidence" is explained in GN 04440.112B. and GN 04440.112C in this section.
B. Procedure for handling inadequate medical evidence in initial claims
1. Introduction to inadequate medical evidence in initial claims
We need medical evidence from an acceptable medical source (AMS) to determine initial entitlement to disability freeze or disability benefits per 20 CFR § 404.1513 and DI 22505.003. However, you may allow an exception to this requirement in limited “obvious impairment” situations, see Obvious Impairments DI 22505.012B.2. In addition, the evidence from the AMS must contain clinical or laboratory findings that demonstrate the existence of a medically determinable impairment (MDI) per Medical Evidentiary Issues DI 24501.015 and Symptoms, Signs, and Laboratory Findings DI 24501.020.
2. Procedure for classifying deficiencies when the medical evidence is inadequate
If the medical evidence in file is inadequate, classify the deficiency as a group I medical documentation deficiency without making a POR determination; i.e., in any of the following situations.
The adjudicating component made a medical or medical/vocational determination, and the medical evidence consists only of a diagnosis without any acceptable clinical or laboratory findings to support it.
The only medical evidence in file is unrelated to the disabling impairment; e.g., evidence about self-limiting illnesses, such as respiratory infections or other minor ailments.
The only medical evidence in file is irrelevant; e.g., it pertains to someone other than the disability claimant.
The adjudicating component made a medical or medical/vocational determination, and there is no evidence from an AMS in file.
EXCEPTION: A disability determination may be made without evidence from a medical source in those rare situations in which the claimant has an obvious impairment; i.e., amputation of extremities identified in listing 1.05 A. or total blindness due to the loss of both eyes. Do not cite a medical documentation deficiency in these types of cases if the claimant meets the conditions in Development Issue – No Evidenced Furnished from an AMS DI 22505.012B.2.
C. Procedure for handling inadequate medical evidence in CDR cases
1. Introduction to inadequate medical evidence in CDR cases
If an MDI has been previously established, we need medical evidence from a medical source (which need not be an AMS) to determine whether there is medical improvement (MI).
For an explanation of "medical source," see Evidence from an Acceptable Medical Source (AMS) DI 22505.003B.3.
For an exception to this requirement in "medical improvement not expected" (MINE) CDR cases, see DI 28040.115 Verification of Continued Impairment Severity – General and DI 28040.125 Medical Source Not Available.
If it is necessary to establish a new MDI, we need medical evidence from an AMS.
2. Procedure for classifying deficiencies in CDR cases with inadequate medical evidence
If the medical evidence in file is inadequate, classify the deficiency as a group I medical documentation deficiency without making a POR determination when a CDR determination has been made in a medical improvement expected (MIE) or medical improvement possible (MIP) diary case, and one of the following is true.
The file does not contain evidence of current severity or functioning from a medical source.
The evidence from the medical source contains only an opinion that is not supported by acceptable clinical or laboratory findings (e.g., the medical evidence contains only a statement that there has or has not been any MI).
The evidence from the medical source is unrelated to the disabling impairment (e.g., evidence about self-limiting illnesses such as respiratory infections or other minor ailments).
The evidence from the medical source is irrelevant (e.g., it pertains to someone other than the disability beneficiary).
When the adjudicating component makes a medical or medical/vocational determination based on a new impairment that was not established at the time of the last comparison point decision, classify the deficiency as a group I medical documentation deficiency without making a POR determination if there is no medical evidence in file from an AMS to demonstrate the existence of the new MDI.
EXCEPTION: A disability determination may be made without evidence from a medical source in rare situations that the claimant has an obvious impairment; i.e., amputation of extremities identified in listing 1.05A. or total blindness due to the loss of both eyes. Do not cite a medical documentation deficiency in these types of cases if the claimant meets the conditions in Development Issue – No Evidenced Furnished from an AMS DI 22505.012B.2.