TN 6 (09-16)
DI 28005.007 Substitution of Judgment (SOJ) During a Medical Continuing Disability Review (CDR)
During the CDR adjudication process, the current adjudicator may arrive at a different determination than the comparison point decision (CPD) adjudicator. This may occur even when the previous determination is fully documented and rationalized.
A. What is SOJ?
SOJ occurs when an adjudicator comes to a different determination than a prior adjudicator after reviewing the same evidence and:
the determinations are equally supportable based on the evidence in the folder, and
the previous adjudicator has fully documented the folder.
The term “determination” means medical assessment (including severity and residual functional capacity (RFC)), vocational assessment, medical-vocational assessment, or determination of disabled or not disabled.
The term “support” or “supportable” means conforming to the Social Security Administration (SSA) disability program policy and procedures.
When reviewing the CPD evidence during the CDR, the current adjudicator must be aware of the SOJ concept as a review principle and must not substitute his or her own judgment by attempting to re-adjudicate the case or intentionally search for a Group I prior error.
Even though the CPD folder has complete and accurate documentation, the evidence in the folder supports the determination, and the determination complies with SSA policy; the CPD adjudicator and the CDR adjudicator may arrive at opposite, equally supportable conclusions. In such situations, the CDR adjudicator must not substitute his or her judgment for that of the CPD adjudicator.
B. Identifying SOJ
1. Substituting judgment
The CPD adjudicator fully developed and documented the case with evidence supporting the CPD determination based on policy guidance;
The CPD adjudicator considered all the facts in making the determination;
The CDR adjudicator, after considering all the facts, believes the evidence directs a different or opposite determination than the CPD adjudicator’s; and
Determinations from both the CPD and CDR are equally supportable, then
SOJ occurs if the CDR adjudicator applied an error exception.
2. Example of SOJ
At CDR: The individual complains currently of back pain and is taking over-the-counter medications because he no longer has a regular doctor. He reports difficulty standing due to the pain, but is able to perform some light household chores. Examinations show he walks with a slight limp on the right side. Recent x-rays show mild-moderate lumbar stenosis. Based on this evidence the current adjudicator prepares a light RFC assessment. The individual’s benefits ceases because the vocational rules indicate “not disabled”.
At CPD: The individual reported difficulty standing and walking, and was taking medicine prescribed by his pain management doctor. X-rays showed mild-moderate stenosis. The CPD adjudicator prepared an allowance based on a sedentary RFC due to back pain.
Discussion: In the example provided, the individual currently complains of back pain and difficulty standing and walking, and is taking pain medications (symptoms), he walks with a limp (signs), and x-rays (lab findings) are consistent with films from the CPD. The current adjudicator substituted judgment (a light RFC) for that of the CPD adjudicator (a sedentary RFC). There was no need for a current RFC assessment since the symptoms, signs and lab findings have not significantly changed since the CPD. The current adjudicator should have prepared a “No MI” determination.
NOTE: Do not apply the prior error exception, if there is reasonable doubt as to whether the CPD determination was made in error.
C. SOJ and Group I prior error exceptions
1. Identifying prior error without SOJ
When the CDR adjudicator is reviewing the CPD evidence, he or she must determine if medical improvement (MI) occurred without substituting judgment on the CPD determination. The case does not involve SOJ if, any of the following exists and the case meets the conditions to apply an exception as noted in DI 28020.001:
The CPD determination clearly contradicts the evidence present during the CPD (for example, the CPD adjudicator bases his or her determination on an incorrect interpretation of an electrocardiogram, contrary to accepted medical knowledge);
The CPD determination is contrary to specific disability program policy as it appeared during the CPD;
The CPD adjudicator has clearly misinterpreted or misrepresented the evidence in his or her determination rationale; or
All of the following exist:
2. Documenting a prior error finding
When applying a Group I exception, thoroughly document the finding of prior error. Include a supportive rationale that explains how the evidence shows the prior determination was erroneous. For additional information on applying a prior error exception and the rationale content, see DI 28020.350 and DI 28090.055. Use the error exception only if:
substantial evidence shows a prior determination is in error,
available evidence does not show a reasonable alternate basis for the prior determination (for example, some basis other than the one actually cited), and
one of the three types of prior error is found in DI 28020.350 through DI 28020.365.
Do not apply a prior error exception simply because the prior determination explanation is inadequate or missing. There must be disagreement based on a reasonable interpretation of the evidence in file, and the current adjudicator’s determination must clearly be more supportable. In these instances, the current adjudicator must explain the reason for his or her disagreement and the explanation must contain specific references to the evidence in the folder or to the needed evidence.
If the CPD determination is not supportable, then the CDR adjudicator’s different determination does not represent SOJ and the adjudicator may apply an error exception when appropriate. For additional information on the Group I exceptions, see DI 28020.001B.1.
3. Example of prior error without SOJ
At CPD: The individual alleges she cannot walk due to numbness in her legs. She uses a cane when walking and must sit down to relieve tingling in her legs. Examinations shows she maintains good strength but is diagnosed with peripheral arterial disease (PAD) and was prescribed a four prong cane. Since the impairment did not meet or equal listing 4.12, the adjudicator prepared a less-than-sedentary RFC assessment.
At CDR: Current evidence shows unchanged symptoms and signs. However, review of CPD evidence showed ankle-brachial index (ABI) of .95 indicating mild PAD. The current adjudicator feels that at CPD the individual should have been capable of at least sedentary activity. The current adjudicator applies a Group I prior error exception.
Discussion: The current adjudicator applied a Group I prior error exception correctly. The results of the ABI clearly indicates that the impairment is not as severe as proposed at CPD. SOJ did not occur because the ABI clearly did contradict the prior determination.
4. Addressing prior error during a CDR
If the CDR adjudicator determines that prior error exists in the CPD determination without SOJ, then the CDR adjudicator must determine which error exception applies according to DI 28020.001B.1 and then follow the procedures to apply the prior error exception according to DI 28020.375.
DI 28005.005 The Continuing Disability Review (CDR) Evaluation Process for Title II and Adult Title XVI Individuals
DI 28010.015 Comparison of Symptoms, Signs and Laboratory Findings
DI 28020.001 General - Groups I and II of Exceptions to Medical Improvement (MI)
DI 28020.350 Prior Error Exception
DI 28020.355 Error on the Face of the Record
DI 28020.360 Required and Material Evidence Was Missing
DI 28020.365 New Evidence Related to the Prior Determination or Decision
DI 28020.375 Error, Reopening, and the Medical Improvement Review Standard (MIRS)
DI 28090.055 Rationale Content - Groups I and II Exceptions