TN 1 (12-11)
DI 27525.005 Providing a Due Process Pre-Determination Notice in Cases Involving Onset Change
A. Contact the beneficiary when providing a due process pre-determination notice
In cases involving an onset change, formally notify the beneficiary before making the adverse determination and revision.
Inform the beneficiary in writing (by mail) of the proposed adverse action. Contact with the primary beneficiary provides advance notice for all auxiliaries (i.e., family members entitled on the beneficiary’s social security number) who are living with him or her; therefore, a separate notice is not required for auxiliaries who are living with the beneficiary. To inform auxiliaries not living with the beneficiary, see DI 27525.005C in this section.
The written due process pre-determination notice must include specific information to be valid, including a brief and non-technical description of the evidence on which we based the proposed adverse action.
Give the beneficiary 10 days from receipt of the notice plus 5 days for mailing time to respond in writing. If the beneficiary wishes to obtain and submit additional evidence that may be material in support of his or her claim, grant an additional 10 days to present the evidence.
B. Prepare a due process pre-determination notice
Prepare the due process pre-determination notice on Disability Determination Services (DDS) letterhead or the appropriate blank Social Security Administration letterhead. (When using the SSA-L951, show the DDS address in the body of the notice indicating where to mail rebuttal evidence.) See DI 27525.025, Exhibit 1, for an example of notice language.
Address the following elements in every due process pre-determination notice:
Tell the beneficiary the DDS is assisting SSA review (or in foreign claims, that SSA is reviewing) his or her case.
Give a brief explanation for the review (e.g., we received new evidence, your case was selected for independent review, we wanted to consider an earlier onset date).
Notify the beneficiary that based on evidence now in the file, we determined that the onset date should be later.
Include a list and dates of all medical reports evaluated.
When medical sources were unresponsive, include the disclaimer that while additional reports were not obtainable we had enough information to evaluate his or her condition.
Explain that an agency of the State (or in foreign cases, SSA) made the determination, not the providers or agencies who submitted reports.
Provide a brief statement outlining the reasons that the beneficiary gave for believing that he or she met the requirements for disability payments.
In discussing the medical evidence, provide a brief description of medical severity as of the onset date in partially favorable or less than fully favorable onset date allowances. Address unconfirmed allegations regarding severity by stating that evidence does not reveal any other disabling conditions. If applicable, explain that a prior administratively final Administrative Law Judge (ALJ) or Appeals Council (AC) decision is binding and generally precludes an earlier onset.
When we considered vocational factors in a less than fully favorable onset date allowance, describe the job(s) the beneficiary was capable of performing up to the date of onset. When work activity is the reason for a less than fully favorable onset determination, the information provided must cover the issue.
Explain that we are writing to give the beneficiary an opportunity to present any additional evidence that he or she was unable to work earlier because of the impairment.
Instruct the beneficiary to mail any additional evidence directly to the DDS (or the Office of International Operations (OIO) in foreign claims) and include the full DDS or OIO address in the notice.
Indicate that we will make a formal determination unless we hear from the beneficiary within 10 days from receipt of the notice. Emphasize the importance of the beneficiary letting us know within 10 days if he or she wants to submit a statement or evidence, even if the beneficiary needs more time to submit it.
Explain that we will notify the beneficiary (and any auxiliaries) in writing what the final determination is, and how to appeal if he or she disagrees.
C. Prepare a notice to auxiliaries not living with the beneficiary
Prepare the due process notice to the auxiliaries on DDS letterhead or the appropriate blank SSA letterhead.
Show the DDS name and address in the body of the notice (or the address of OIO if a foreign claim is involved).
Give due process to the auxiliaries even if they are in suspense; however, delete the information regarding “receipt of benefits” and “benefits being paid” if beneficiaries are in nonpayment status. See DI 27525.025, Exhibit 2, for an example of notice language.
Prepare, date, and release notices the same day due process is extended to the primary beneficiary.
Obtain the address from the latest payment form or change of address form in the official claims folder.
If several auxiliaries have the same payee, only send one letter that it specifically identifies all of the auxiliaries.
D. DDS documentation and follow-up in title II pre-determination notice
Take the following steps to document the folder and follow-up on a title II pre-determination notice.
1. Folder documentation
Place copies of all pre-determination notices in the official claims folder.
Document all subsequent contact with the beneficiary or auxiliary beneficiaries on a Report of Contact, SSA-5002.
For electronic processing instructions, see DI 81010.090 and DI 81020.050.
2. Diary controls and final actions
Set appropriate diary controls and take action to finalize the determination.
Do not process the claim before 15 days (10 days, plus 5 days for mailing time) expires unless you receive a written statement from the beneficiary stating that he or she will not be submitting additional evidence.
Complete the action if there is no response in 15 days. The DDS does not follow up with a beneficiary who fails to respond to the letter.
Transfer electronic folders to the field office (FO) of record. Send paper folders to the Office of Disability Operations (ODO) or the appropriate program service center (PSC).
3. Beneficiary requests more time
If the beneficiary responds with a request for more time to get additional evidence, the DDS may allow an additional 10 days. To verify that the claimant is actively pursuing the evidence in question, ask the claimant for the nature of the evidence, identification of sources, etc.
Do not follow up with a beneficiary who fails to respond within the second 10-day period. However, there may be unusual circumstances that require the DDS to extend the response time beyond the second 10-day period.
NOTE: These instances should be rare and granted only when, in your judgment, reasonable circumstances precluded the beneficiary from obtaining the evidence (e.g., the doctor is out of town for an extended period).
If there is no response within the second 10 days, complete the determination on the 25th day after sending the pre-determination notice to the beneficiary.
E. Beneficiary responds after receiving the pre-determination notice
1. Beneficiary provides additional information
Prepare a brief acknowledgement on either DDS letterhead or the appropriate blank SSA letterhead (use the same as the initial due process pre-determination letter). Include the following language.
“This acknowledges receipt of the additional information you sent to us. We’ll consider the new information along with the other evidence in your case to make a determination as to the date your disability began. When we make the formal decision, the Social Security Administration will notify you.”
NOTE: Do not include any statement about the significance of the information received.
2. Beneficiary indicates no additional evidence or statement will be submitted
Do not process the claim before the 15 days (10 days, plus 5 days for mailing time) expire unless you receive a written statement from the beneficiary stating that he or she will not submit additional evidence. If the beneficiary provides a written statement that he or she will not be submitting additional evidence, place the statement in the official claims folder and complete processing of the final determination immediately.
3. Beneficiary’s response results in a change to a later onset
If the adverse reopening involves a change in onset date and the beneficiary's response results in a later onset than the date mentioned in the pre-determination notice, send a second pre-determination notice and diary for follow-up, etc.
DI 27540.001 Due Process Requirements
DI 27540.005 Reopening Notices Reference Chart
DI 27540.010 Title II-Only Reopening Notices
DI 27540.015 Title XVI-Only Reopening Notices
DI 27540.020 Concurrent Title II/Title XVI Reopening Notices
DI 27540.025 Title II-Only Predetermination Notice Previously Mailed – Final Decision Notice Instructions
DI 27540.030 Title XVI-Only – Goldberg/Kelly Payment Continuation Applies
DI 27540.035 Concurrent Title II/Title XVI – Statutory Benefit Continuation Does Not Apply
DI 27540.040 Reopening and Revision at the Reconsideration Level
DI 27540.045 Reopenings, Revisions, and Other Related Special Situations Including Informal Remands