TN 16 (04-11)
GN 04440.119 Determining Whether Substitution of Judgment (SOJ) is at Issue
A. Definition of terms
Any conclusion or finding that is determinative in the case; e.g., a residual functional capacity (RFC) determination, impairment severity determination, or disability determination.
2. Disability program policy
Any published, official policy issuance; i.e., SSA regulations, rulings, Program Operations Manual System (POMS), administrative messages, and emergency messages. For an explanation of policies and operating instructions see 20 CFR §404.1633 and 20 CFR §404.1602 .
Do not, under any circumstances, use the Office of Disability Programs’ policy memorandums, PolicyNet Questions and Answers, adjudicating components’ Administrative Letters, or other similar written guidelines to justify or explain the deficiency.
B. When SOJ is at issue
Accept the adjudicating component's determination as correct and do not cite a decisional deficiency when all of the following exist.
The adjudicating component has fully documented the file under current disability program policy.
The facts of the case are clear.
The adjudicating component considered all the facts and made a determination.
The review component, after considering all the facts, believes the evidence directs a different or opposite determination than the adjudicating component’s determination.
Both determinations are supported by the evidence in file and comply with policy.
If all of the above factors are present, you would be substituting your judgment by citing a group I or group II decisional deficiency.
C. When SOJ may be at issue
Before citing a group I or group II decisional deficiency, be alert to the possibility of SOJ in a highly judgmental adjudicative issue, especially when disability program policy explicitly acknowledges that the issue is judgmental. For example, situations in which fine differences in RFC is material to the finding of disability or borderline age situations (see DI 25015.006 Borderline Age).
D. When SOJ is not at issue
Cite a group I or group II decisional deficiency when any one of the following situations occur and the situation meets one of the listed deficiencies in DI 30005.121 and DI 30005.125.
The adjudicating component's determination clearly contradicts the evidence; e.g., the adjudicating component based their determination on an erroneous interpretation of an electrocardiogram, contrary to accepted medical knowledge.
The adjudicating component’s determination is contrary to specific disability program policy.
The adjudicating component has clearly misinterpreted or misrepresented the evidence in the decision rationale.
The adjudicating component's determination is not explained, you reach a different conclusion, and the adjudicating component’s determination is not supported by the evidence or does not comply with policy. However, do not cite a deficiency, nor return the case, merely because the explanation is inadequate or missing.
Create a rationale to fully and clearly explain the reason for your disagreement. The explanation must contain specific references to the evidence in file or to the needed evidence.
For an additional explanation of SOJ, see GN 04440.003.