TN 1 (07-11)

DI 23007.005 Failure to Cooperate With Requests to the Claimant for Evidence or Action

Citations:

20 CFR 404.1512 through 20 CFR 404.1519t , and 20 CFR 416.912 through 20 CFR 416.919t

A. Exceptions to instructions in this section

Case facts

Reference

Claimant refuses to cooperate with a request for evidence or action

DI 23007.004

Claimant refuses to attend a consultative examination (CE) appointment

DI 23007.009

Claimant fails to attend a CE appointment

DI 23007.010

Applicant requests withdrawal of the application

DI 23015.001

Claimant does not wish to pursue the claim

DI 23015.001

Claimant fails or refuses to cooperate with a request for work history evidence

DI 25005.005

B. Failure to cooperate with requests to the claimant for evidence or action

Failure to cooperate with a request to the claimant for evidence or action means the claimant did not state orally or in writing that he or she would not provide the needed evidence or perform the needed action, but the claimant failed to cooperate with the request.

The following are examples of evidence or action you might request from the claimant:

  • a completed SSA-3369-BK (Work History Report),

  • a completed SSA-3373-BK (Function Report – Adult),

  • updated treatment information, and

  • evidence resulting from claimant contact with his or her medical source regarding our request for evidence.

C. Guidelines for requesting claimant evidence or action in special handling situations

Special handling situations include:

  • homelessness,

  • mental impairment,

  • illiteracy,

  • Limited English Proficiency (LEP),

  • communication-related disabilities (i.e., vision, speech or hearing impairment), or

  • hospitalization, etc.

Consider special handling if the facts of the case indicate that the claimant needs accommodation or assistance to cooperate with a request for evidence or action.

In any special handling situation:

  • carefully consider any request for accommodation (e.g., interpreter, additional time to comply, etc.);

    NOTE: If POMS do not provide relevant instructions, consult local procedures.

  • document your actions in response to any request for accommodation; and

  • attempt to involve a designated third-party contact, whenever appropriate. See guidelines for involving a designated third party in DI 23007.005D.3., in this section.

D. Guidelines for involving appointed representatives, applicants and third-party contacts, with requests for claimant evidence or action

1. Appointed representative involved

Identify represented claimant cases by the completed Form SSA-1696 (or equivalent writing) in file. These case files are flagged “representative involved.”

a. The appointed representative communicates for the claimant

If the claimant has an appointed representative:

  • send all written correspondence to the appointed representative and the claimant, and

  • direct all telephone contact to the appointed representative unless asked to communicate directly with the claimant.

    NOTE: You may speak with an unappointed assistant, instead of the appointed representative, if the representative delegated responsibility for handling the claimant development matter to the assistant; see GN 03910.025.3.

b. See also:

  • GN 03910.040, Appointment and Revocation of Appointment of Representative

  • GN 03910.050, Contacting a Represented Claimant

  • DI 31001.010, Disability Determination Services (DDS) Responsibilities When an Appointed Representative is Involved

2. Applicant filed for the claimant

If the applicant is someone other than the claimant:

  • send all written correspondence to the applicant and the claimant; and

  • direct all telephone contact to the applicant for the claimant, unless asked to communicate directly with the claimant.

EXCEPTION: If the claimant has an appointed representative, see DI 23007.005D.1. in this section.

3. Designated third-party contact assistance

The claimant usually provides the name of someone we can contact to help him or her with the claim. We refer to this person as the designated third-party contact or third party. The designated third party is not the claimant’s doctor, but knows about the claimant’s medical conditions.

The claimant may designate a third-party contact verbally or in writing (e.g., on the SSA-3368-BK (Disability Report Adult - Section 2 Contacts) or SSA-3441-BK (Disability Report Appeal - Section 1.D).

IMPORTANT: The designated third-party contact role is to voluntarily assist the claimant. Never deny a claim because a third party declines to assist (e.g., does not respond to a call-in letter).

Examples of potential third parties include, but are not limited to:

  • a relative,

  • friend,

  • member of a religious group,

  • labor union representative,

  • veterans’ group member, or

  • member of a senior citizens’ association.

a. When to involve the third party

Involve the third party when indicated by the facts of the case or when required by POMS instructions.

EXCEPTION: You are not required to involve a third party if the claimant has an appointed representative or an applicant has filed for the claimant.

b. When you are not required to involve a third party

You do not have to involve a third party if:

  • the claimant did not designate a third party,

  • your efforts to reach the third party are not successful, or

  • the third party is unable or unwilling to assist the claimant.

NOTE: Third-party contacts are subject to Privacy Act requirements, including the agency minimization policy. For more information on the minimization policy and disclosure without consent, see GN 03316.005.

E. Procedure for initial requests to the claimant for evidence or action

1. General procedure for requests for claimant evidence or action

These procedures apply to all requests for claimant evidence or action except as explained in DI 23007.005E.2. in this section.

a. Telephone Contact for evidence or action

If the claimant provided a telephone number, attempt to reach him or her by telephone.

Collect the information requested over the telephone, if possible.

If you reach the claimant, but the claimant does not provide the evidence over the telephone, or requests time to perform the action:

  • inform the claimant that if we do not receive the requested evidence or he or she does not perform the requested action within 10 calendar days after the date of the call, or a later specified date, if appropriate, we may make a determination based on the evidence in file; and

  • explain that this means we may find that he or she is not disabled.

If no one answers the telephone, or if you reach a busy signal, a recorded message, voicemail, an answering machine, or another person:

  • leave a message for the claimant to call you, if possible;

  • make a second attempt to reach the claimant at a different time of day on a different day; and

  • send a call-in letter if the telephone number is not in service, or if you do not reach the claimant after two attempts; see call-in letter procedures in DI 23007.005E.1.b. in this section.

Document the case development summary worksheet with the details of the development undertaken; see case development summary instructions in DI 20503.001E.

NOTE: When leaving a message, disclose only information necessary for the claimant to return the call. (See minimization policy in GN 03316.005D.)

If you:

  • do not reach the claimant on the first attempt, you may send the call-in letter before making your second attempt; or

  • reach the claimant before he or she receives the call-in letter, ask him or her to disregard the call-in letter.

b. Initial call-in letter for evidence or action

If the claimant does not have a telephone or you did not reach the claimant by telephone:

  • send the claimant a call-in letter;

  • indicate in the letter that if the claimant does not respond within 10 calendar days after the date of the letter, we may make a determination based on the evidence in file; and

  • explain that this means we may find that he or she is not disabled. (For sample call-in letter, see NL 00705.735.)

If the claimant calls in, obtain the requested evidence or action, if possible.

If the claimant calls in, but does not provide the evidence, or requests time to perform the action:

  • remind the claimant that if we do not receive the requested evidence or he or she does not perform the requested action within 10 calendar days of the call, or a later specified date, if appropriate, we may make a determination based on the evidence in file; and

  • explain that this means we may find that he or she is not disabled.

Document the case development summary worksheet with the details of the development undertaken; see case development summary instructions in DI 20503.001E.

2. Mailed requests for form completion

  1. New DDS request

    If the purpose of the claimant contact is solely to complete a form and the claimant does not have a telephone, or it would not be practical to complete the form over the telephone:

    • Send the form with a request to complete and return the form; and

    • Indicate in the cover letter that if the claimant does not return the completed form within 10 calendar days after the date of the letter, we may make a determination based on the evidence in file; and that this means we may find that the claimant is not disabled.

    • Follow up per DI 23007.005F and DI 23007.005G

  2. Prior FO request

    If POMS instructions direct the field office (FO) to request claimant form completion, and allow the FO to transfer jurisdiction of the case to the DDS without the requested form (e.g., development of the SSA-3441-BK, Disability Report – Appeal, for reconsideration cases):

    • Consider the FO initiated request as the initial request, only if the request contained requisite closeout language.

    • Follow up per DI 23007.005F and DI 23007.005G.

    Document the case development summary worksheet with the details of the development undertaken; see case development summary instructions in DI 20503.001E.

F. Follow-up requirement when the claimant does not respond to an initial request for evidence or action

Allow 10 calendar days from the date of the telephone request, written request, or initial call-in letter, for the claimant to provide the requested evidence or perform the requested action.

NOTE: Local procedures may allow additional time to account for mail delivery and processing.

If the claimant does not respond:

  1. Complete follow-up procedures in DI 23007.005G if the:

    • initial request was for the claimant to complete a form; or

    • claimant is homeless, alleges a mental impairment, or the evidence suggests a mental impairment.

    NOTE: If the required development and evaluation of all mental impairment(s) as explained in DI 24505.025 and DI 24505.030 is complete, consider the claimant’s substantiated severe mental impairment(s), rather than alleged mental impairment(s), to determine whether we require follow up.

  2. If neither of these situations applies, follow determination procedures in DI 23007.005H.

NOTE: For special efforts required in title XVI childhood disability claims, see DI 25205.020, Failure Issues.

G. Follow-up procedure for requests to the claimant for evidence or action

1. Third-party contact requirement

If the claimant is homeless, alleges a mental impairment, or the evidence suggests a mental impairment:

  • contact a designated third party to assist the claimant; and

  • attempt to reach a designated third-party contact at the same time you follow up with the claimant.

If you do not reach the third party with two telephone attempts, send a call-in letter to the third party. If the third party does not respond to the call-in letter, you are not required to send a follow-up letter to the third party. If the claimant declines third-party assistance, document the file.

NOTE: If the required development of all mental impairment(s), as explained in DI 24505.030 is complete, consider the claimant’s substantiated severe mental impairment(s) rather than alleged mental impairment(s).

EXCEPTION: If the case involves an appointed representative or an applicant other than the claimant, we do not require designated third-party contacts. See guidelines for involving the appointed representative or applicant other than the claimant in DI 23007.005D in this section.

2. Telephone contact to follow up with the claimant for evidence or action

If the claimant has provided a telephone number, attempt to reach him or her by telephone.

If you reach the claimant, collect the information requested over the telephone, if possible.

If you reach the claimant, but the claimant does not provide the evidence over the telephone or requests time to perform the action:

  • inform the claimant that if we do not receive the requested evidence or he or she does not perform the requested action within 10 calendar days after the date of the call, we may make a determination based on the evidence in file; and

  • explain that this means we may find that he or she is not disabled.

If no one answers the phone, or you reach a busy signal, a recorded message, voicemail, an answering machine, or another person:

  • leave a message for the claimant to call you if possible;

  • make a second attempt to reach the claimant at a different time of day on a different day; and

  • send a call-in letter if the telephone number provided is not in service or if you do not reach the claimant after two attempts.

Document the case development summary worksheet with the details of the development.

NOTE: When leaving a message, disclose only information necessary for the claimant to return the call. (See minimization policy in GN 03316.005D.)

If you:

  • do not reach the claimant on the first attempt, you may send the call-in letter before making your second attempt; or

  • reach the claimant before he or she receives the call-in letter, ask him or her to disregard the call-in letter.

3. Call-in letter follow up to a request for evidence or action

If the claimant does not have a telephone or you did not reach the claimant by telephone, send the claimant a call-in letter.

  1. Explain in the letter that:

    • if the claimant does not respond within 10 calendar days after the date of the letter, we may make a determination based on the evidence in file; and

    • this means we may find that he or she is not disabled.

  2. Allow 10 calendar days from the date of the follow up call-in letter for the claimant to respond.

    NOTE: Local procedures may allow additional time to account for mail delivery and processing.

  3. If the claimant calls in:

    1. If possible, obtain the requested evidence or action over the telephone.

    2. Otherwise:

      • remind the claimant that, if we do not receive the requested evidence, or he or she does not perform the requested action, within 10 calendar days of the call, we may make a determination based on the evidence in file; and

      • explain that this means we may find that he or she is not disabled.

  4. If the claimant does not call in or does not provide the requested evidence or perform the requested action, within time allotted, see failure to cooperate determination procedures in DI 23007.005H in this section; and

  5. Document the case development summary worksheet with the details of the development.

H. Procedure for failure to cooperate determination

If the claimant fails to cooperate, you may discontinue development that requires claimant action (e.g., consultative examinations and claimant forms completion).

You must:

  • review the file again to determine if you need the requested evidence;

  • develop medical evidence of record (MER) from other medical sources;

  • make every reasonable effort as explained in DI 22505.001A.2.; and

  • complete development of functional evidence indicated by the facts of the case, if the available MER substantiates mental impairment.

See details:

DI 22511.007, Sources of Evidence

DI 22511.009, Sufficiency of Evidence

DI 22511.011, Contacting Claimants and Collateral Sources

  • document the case development summary worksheet with the details of the development undertaken; and

    NOTE: Review by a Medical consultant or psychological consultant is not necessary if there is no medical evidence.

  • make a disability determination based on the evidence in file.

If y