TN 36 (09-15)
There are three types of errors:
Error on the face of the record
Required and material evidence was missing; and
New evidence related to the prior determination or decision.
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.
Do not substitute current judgment for that involved in the prior determination or
For an example of substitution of judgment, see DI 28020.350F in this section.
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:
Error on the face of record;
Required and material evidence was missing; or
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.
The prior error exception can apply to any medical determination or decision on the
issue of disability, not just the comparison point decision (CPD).
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.
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.
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).
If there has been an improper trigger of an allowance subject to a pre-effectuation
or other pre-adjudicative review, do not find error.
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.
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.
Do not find error as that would represent substitution of judgment.
DI 28020.375, Error and Reopening Medical Improvement Review Standard (MIRS)