TN 43 (05-23)

DI 28020.350 Group I Exception - Prior Error Overview

A. Types of errors in the prior error exception

There are three types of errors:

  • error on the face of the record, see DI 28020.355;

  • required and material evidence was missing, see DI 28020.360; and

  • new evidence related to the prior determination or decision, see DI 28020.365.

B. When the prior error exception applies

1. When to apply the prior error exception

Apply this exception when all of the following apply:

  • Evidence shows error in 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.

  • One of the following three requirements exists:

    1. a. 

      error on the face of record;

    2. b. 

      required and material evidence was missing; or

    3. c. 

      new evidence related to the prior determination or decision.

NOTE: Error may be a basis for reopening, if the rules for reopening, including time limits, are met. See DI 27505.000, Rules for Reopening - Table of Contents; DI 27501.001, Reopenings and Revisions: Pertinent Definitions and Related Policy; and DI 27501.005, Reopening and Revising a Determination or Decision.

2. 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.


3. No substitution of judgment

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

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

C. How to apply the prior error exception

1. Application of the prior error exception

If the prior error exception applies, then:

  • continue with the sequential evaluation process, see DI 28005.015A for the Title II and Title XVI adult continuing disability review (CDR) sequential evaluation process and DI 28005.030C for the Title XVI child CDR sequential evaluation process.

  • determine if reopening of the prior determination or decision is necessary after evaluation through all appropriate steps in the sequential evaluation process.

NOTE: If the sequential evaluation process leads to an unfavorable determination, the result may be a current cessation or an adverse reopening.

2. Determine whether reopening is appropriate

The medical improvement review standard (MIRS) applies to adverse reopenings of prior determinations and decisions. The MIRS includes the exceptions to medical improvement (MI). When the MIRS applies and the determination in a particular case supports a Group I error exception, the MIRS review evaluation process requires a finding of current ability to engage in SGA, before making any unfavorable decision, including adverse reopening.

See DI 28005.001D for application of the MIRS.

If a Group I prior error exception applies, the adjudicator must consider whether reopening the prior determination is appropriate and is possible under the rules for reopening.

Reopening is only necessary if both criteria are met:

  • Evidence on the file establishes that the prior determination or decision was completed in error and the prior error exception applies.

  • Conditions for reopening meet the criteria as defined in DI 27505.001A.

Reopening is NOT necessary if the prior error exception applies but the conditions for reopening in DI 27505.001A. are NOT met. The CDR sequential evaluation process still applies despite the ability to reopen.

If a decision made at a higher appeals level (for example, by an administrative law judge) is found in error and the individual can engage in substantial gainful activity (SGA), process the cessation on the pending CDR case first. After processing the cessation, if the time limit for reopening has not expired, refer the case for possible reopening at the prior appeal level.

• For an overview of considerations for reopening and revision a decision or determination, see DI 27501.005B.2.c. and DI 27501.005B.2.d.

• For reopening time limits, see DI 27505.001.

• For instructions routing reopened CDR cases, see DI 28501.030.

3. Prepare a rationale for the error exception

Prepare a rationale in a SSA-5002 or the disability determination explanation (DDE), based on facts in the evidence, that specifically explains and documents why the prior decision or determination was in error. Explain why you are or are not reopening the prior determination.

D. Additional considerations for the 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

While the CPD and supporting evidence must be reviewed in some detail, only develop the prior error exception if there is substantial evidence that suggests a decisional error was made on a previous claim. Do not begin to review the CPD (or any other prior determination or decision) with the intent of finding an error.

E. Exclusions to the prior error exception

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 cumulative edition of SSRs (List of Social Security Rulings (1960-present) 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 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 erroneous activation of an allowance subject to a pre-effectuation or other pre-adjudicative review, do not find error. Follow instructions in DI 81020.127 for medically reactivated claims.

F. Example of substitution of judgment with no error

Example of substitution of judgment, error does not apply

CPD: At the CPD, the individual was taking insulin due to “brittle” diabetes. The individual's urine was 3+ for sugar and they alleged occasional hypoglycemic attacks caused by exertion. The adjudicator, after reviewing the opinion given by a medical consultant, found the impairment medically equaled the listings.

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

Explanation: Do not find error. Application of the error exception in this scenario represents substitution of judgment, as the adjudicator cited evidence to medically support the individual's impairments medically equaled the severity of the listing. With no decrease in symptoms, signs, or laboratory findings at CDR, we would determine there is no medical improvement.

G. References

DI 27501.005 Reopening and Revising a Determination or Decision

DI 27505.010 Good Cause for Reopening

DI 28020.375 Error, Reopening, and the Medical Improvement Review Standard (MIRS)

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DI 28020.350 - Group I Exception - Prior Error Overview - 05/26/2023
Batch run: 05/26/2023