TN 36 (09-15)

DI 28020.350 Prior Error Exception

Citations:

20 CFR §404.1594(d)(4) and §416.994(b)(iv)

A. Types of errors in the prior error exception

There are three types of errors:

  1. Error on the face of the record

  2. Required and material evidence was missing; and

  3. New evidence related to the prior determination or decision.

B. Policy for application of the prior error exception

1. Evidence to consider

In deciding whether this exception applies, consider both:

  • Evidence on the record at the time of the prior determination or decision; and

  • Any new evidence related to the prior determination or decision.

2. No substitution of judgment

Do not substitute current judgment for that involved in the prior determination or decision.

For an example of substitution of judgment, see DI 28020.350F in this section.

C. Procedures to apply the prior error Group I exception

1. Conditions for use

Apply this exception if:

  • Substantial evidence shows a prior decision or determination was made in error;

  • Available evidence does not show a reasonable alternate basis for the disability finding in the prior determination or decision; and

  • One of the following three requirements exists:

    1. Error on the face of record;

    2. Required and material evidence was missing; or

    3. New evidence related to the prior determination or decision.

2. Prepare a rationale

Prepare a rationale that specifically explains and documents why the prior decision or determination was in error. The rationale should be compelling and based on facts in the evidence.

D. Related information on prior error exception

1. Any prior medical determination or decision

The prior error exception can apply to any medical determination or decision on the issue of disability, not just the comparison point decision (CPD).

2. No unnecessary development or reviews

Do not review prior determinations or decisions in detail other than the CPD when processing continuing disability reviews (CDRs). While the CPD and supporting evidence must be reviewed in some detail, do not begin to review the CPD (or any other prior determination or decision) with the intent of finding an error.

E. Additional precautions in finding error

If considering Social Security Rulings (SSR) in deciding whether a prior determination or decision was in error, use only rulings in effect at the time the prior determination or decision was made. Consult the annual cumulative edition of Social Security Rulings (List of Social Security Rulings (1960-2015) to determine the text of a ruling(s) at the time of the prior decision in question.

1. Lost folders and error

Do not find error where the prior folder has been lost (or evidence apparently used for the CPD is either uninterpretable or lost from the file) and cannot be adequately reconstructed. For additional information see DI 28035.001 Disability Determination Services (DDS) Initial Receipt and Development of Lost Folders/Medical Evidence for Continuing Disability Review (CDR).

2. Erroneous activation of a favorable determination prior to review

If there has been an improper trigger of an allowance subject to a pre-effectuation or other pre-adjudicative review, do not find error.

F. Example of substitution of judgment with no error

1. CPD

The individual had “brittle” diabetes for which she was taking insulin. Her urine was 3+ for sugar and she alleged occasional hypoglycemic attacks caused by exertion. The adjudicator found the impairment equaled the listings.

2. CDR

New evidence shows unchanged symptoms, signs and laboratory findings. The current adjudicator feels, however, that the impairment clearly did not (and does not) equal the severity of the listing.

3. Exception decision

Do not find error as that would represent substitution of judgment.