Identification Number:
DI 28020 TN 40
Intended Audience:
Originating Office:ORDP ODP
Title:Exceptions to Medical Improvement
Type:POMS Transmittals
Program:Disability
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part DI – Disability Insurance
Chapter 280 – Continuing Disability Review Cases
Subchapter 20 – Exceptions to Medical Improvement
Transmittal No. 40, 01/05/2022

Originating Component

ODP

Effective Date

Upon Receipt

Background

Revisions made to reflect current policies, language and references enhanced for clarity and consistency.

Summary of Changes

DI 28020.001 General - Groups I and II of Exceptions to Medical Improvement (MI)

DI 28020.001B1 - Adding in instructions that Group I exceptions for Title XVI children are assessed at step 1 or 2 of the title XVI CDR sequential evaluation process. Not a change, this is more accurate and more clear than previous version that referenced step 2 "generally."

DI 28020.100 Group I Exception - Advances in Medical or Vocational Therapy or Technology

DI 28020.100D- Reintroducing language that was from previous version of POMS about exclusions to this exception, situations where individual continues to meet prior CPD listings needs to be added back in to avoid confusion. Was previously in section C1c of the now archived version that was effective from 07/31/2017 through 06/30/2021. Reintroducing for clarity and consistency. No policy change.

DI 28020.900 Group II Exceptions

  • Updated references throughout section for consistency with current existing policy.

  • Updated language in section B2 for consistency with the revised failure to cooperate (FTC) policies in DI 23007.000. Removed the term "refusal" from the definition. for consistency with current FTC policy.

  • Added additional instructions for processing whereabouts unknown (WU) cases reinforced from DI 28075.005. Updated explanation/definition of WU term for consistency with regulatory language from 20 CFR 404.1594(e)(3) and 20 CFR 416.994(b)(4)(iii).

DI 28020.001 General - Groups I and II of Exceptions to Medical Improvement (MI)

CITATIONS:

20 CFR §404.1594(d) and (e),
20 CFR §416.994(b)(3) and (b)(4).

A. Intent of Group I and Group II exceptions to MI

The exceptions to MI permit finding that disability ceased in limited situations where, even though there has been no MI or MI is not related to the ability to work, evidence shows that the person should no longer be considered disabled or never should have been considered disabled.

 

B. Introduction to the Group I and Group II exceptions to MI

There are two groups of exceptions to MI:

1. Group I exceptions

Generally, Group I exceptions apply at:

  • step 5 of the continuing disability review (CDR) sequential evaluation process for Title II and adult Title XVI CDRs; and

  • both step 1 and step 2 of the CDR sequential evaluation process for Title XVI children.

Group I exceptions may result in a finding that the individual is not currently disabled. Group I exceptions by themselves do not result in automatic cessation of benefits. If a Group I exception applies, the adjudicator must continue the sequential evaluation process to determine whether the individual is currently disabled.

The Group I exceptions are:

  • substantial gainful activity (SGA) (for field office use only and does not apply to Title XVI children), see DI 28020.050;

  • advances in medical or vocational therapy or technology (does not apply to Title XVI children), see DI 28020.100;

  • vocational therapy (does not apply to Title XVI children), see DI 28020.150;

  • new or improved diagnostic or evaluative techniques, see DI 28020.250; and

  • prior error, see DI 28020.350, which includes:

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

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

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

2. Group II exceptions

Group II exceptions apply at any step of the CDR sequential evaluation process for adults or children. A Group II exception may result in a determination that an individual is no longer disabled. See DI 28020.900, for further information.

The Group II exceptions are:

  • fraud or similar fault;

  • failure or refusal to cooperate;

  • whereabouts unknown; and

  • failure to follow prescribed treatment.

C. How to apply the Group I and Group II exceptions to MI

1. Development of exceptions

Develop only when there is strong indication that an exception may apply. Avoid routine development only to pursue an exception(s).

2. Caution in applying exceptions

The intent of the Group I exceptions is to provide a way of finding that a person is no longer disabled in those limited situations where there has been no decrease in severity of the impairment(s) and the evidence shows that the person should no longer be considered disabled or never should have been considered disabled. Do not apply any exception to MI if you have reasonable doubt about whether the exception applies.

D. Exclusions for Group I exceptions to MI

  • The SGA exception is a field office determination and does not apply to certain claims, see DI 28020.050C.

  • The advances in medical or vocational therapy or technology exception does not apply to certain claims, see DI 28020.100D.

  • The vocational therapy exception does not apply to certain claims, see DI 28020.150E.

 

E. Additional considerations when more than one exception applies

In the rare situation when more than one exception applies (or one exception applies and there is MI related to the ability to work), discuss this in a rationale. For additional discussion of exception CDR rationale and required content, see DI 28090.055.

DI 28020.100 Group I Exception - Advances in Medical or Vocational Therapy or Technology

A. Introduction to the advances in medical or vocational therapy or technology exception to medical improvement

Advances in medical or vocational therapy or technology are improvements in treatment or rehabilitative methods that have increased the individual’s ability to do basic work activities.

In many instances, an advanced medical therapy or technology will result in a decrease in severity as shown by symptoms, signs and laboratory findings; which will meet the definition of medical improvement.

There are very limited situations in which an individual receives treatment or rehabilitative methods through medical or vocational therapy or technology and does not exhibit medical improvement (MI) or MI that is related to the ability to work. Therefore, this exception will have very limited application and should be infrequently applied.

For more information regarding the comparison of signs, symptoms and laboratory findings, see DI 28010.015, "Comparison of Symptoms, Signs, and Laboratory Findings."

For more information regarding MI and relating MI to the ability to work, see DI 28010.001, "Medical Improvement (MI)", and DI 28015.001, "Context and Scope - Relating MI to Ability to Work."

B. When the advances in medical or vocational therapy or technology exception applies

Consider this exception if all of the following criteria are satisfied:

  • MI has NOT occurred or MI is NOT related to the ability to work;

  • evidence shows that the individual has benefited from services that reflect advances in medical or vocational therapy or technology; and

  • these advances have decreased the severity of the impairment(s) or the individual is able to do basic work activities.

C. How to apply the advances in medical or vocational therapy or technology exception

1. Procedure for applying the advances in medical therapy or technology exception

For the medical portion of this exception to apply, therapy or technology must relate to the ability to work. If the criteria in DI 28020.100B are met and you determine the exception applies, provide a rationale in a SSA-5002 Report of Contact or the disability determination explanation (DDE) explaining how and why the exception applies. After applying the exception, continue to the next appropriate step in the sequential evaluation process.

2. Procedure for applying the advances in vocational therapy or technology exception

If the individual has received advances in vocational therapy that have resulted in the ability to complete basic work activities, apply the exception at step 5 of the adult CDR sequential evaluation process and proceed with the remaining steps in the sequential evaluation process.

Obtain approval from the Regional Office Center for Disability and Program Support prior to cessation based on advances in vocational therapy or technology IF the disability determination services (DDS) also finds the vocational therapy exception does NOT apply. The "advances" in vocational therapy or technology exception differs from the vocational therapy exception, further described in DI 28020.150. The Regional Office Center for Disability and Program Support must review any case that the DDS adjudicator plans to cease because it appears to meet the advances in vocational therapy or technology that meets all of the following criteria:

  • there is no MI -or- MI is not related to the ability to work; and

  • the individual received advances in treatment or rehabilitative methods that have increased the ability to do basic work activities but the therapy did not expand the individual's vocational capacity to perform more jobs.

If both criteria above apply, then:

  1. a) 

    submit a rationale to the Regional Office Center for Disability and Program Support for approval prior to cessation.

  2. b) 

    the rationale must cite DI 28020.100 and clearly explain why:

    • no MI (related to the ability to work) occurred;

    • the person benefited from “advances” in treatment or rehabilitative methods; and

    • the vocational therapy exception does not apply because the individual does not have the ability to meet the vocational demands of more jobs or the advances did not change the individual's vocational profile

D. Exclusions for the advances in medical or vocational therapy or technology exception

This exception does not apply to:

  • Title XVI cases where the recipient is currently eligible under section 1619 or when the beneficiary has been eligible under section 1619 within the last 12 months; or

  • Title XVI child cases (as amended by PL 104-193, enacted August 22, 1996).

  • Cases where MI has occurred but MI is not related to the ability to work because the beneficiary continues to meet or equal the listing that was met or equaled at the comparison point decision (CPD).

  • Cases where the medical improvement review standard (MIRS) residual functional capacity (RFC) has not improved over the CPD RFC.

E. Example of advances in medical or vocational therapy or technology

  1. 1. 

    Advances in vocational therapy exception applies, but vocational therapy exception does not apply:

    CPD: An individual was allowed at the CPD based on their anxiety and was not able to sustain a normal workweek.

    Continuing disability review (CDR) decision: At CDR, evidence from the individual’s primary medical source and activities of daily living do not demonstrate medical improvement of the individual's anxiety. The individual participated in a vocational rehabilitation program and records are received from the vocational rehabilitation program. The individual underwent exposure therapy sessions using virtual reality software during the vocational rehabilitation sessions.

    • The exposure therapy took place in the office setting that included specific virtual reality situations that were triggers for the individual’s anxiety. During these sessions, the individual was under medical surveillance and spoke with the psychologist about the event demonstrated on the screen. The psychologist offered coping mechanisms in various scenarios.

    • The psychologist indicated that the exposure therapy assisted the individual in the office setting and allowed the individual to respond to hypothetical scenarios in a calm manner without triggering an anxiety episode.

    • The psychologist noted successful completion of therapy and was confident in the individual's ability to perform work in a setting with minimal interaction with the public, performing duties without strict demands or quotas.

    • The individual then attempted two jobs, each lasting no longer than one week.

    • The individual was not able to perform duties for more than one hour at a time without experiencing anxiety symptoms that prevented the individual from performing the required duties.

    Explanation: In this scenario, the individual did receive advanced rehabilitative methods that increased their ability to do basic work activities, but the improvement was not significant to perform a number of jobs and did not change the individual’s vocational profile. The adjudicator will follow procedures in DI 28020.100C2.

DI 28020.900 Group II Exceptions

A. Procedure for group II exceptions

These exceptions (described in the definitions and references in subsection B) do not require:

  • A finding that the individual is not currently disabled; i.e., do not require a finding of ability to engage in Substantial Gainful Activity (SGA) or,

  • For Title XVI child cases, a finding that the child's impairment(s) no longer causes marked and severe functional limitations.

Consider these issues whenever they arise, at any point in the Continuing Disability Review (CDR) evaluation process (DI 28005.015, DI 28005.030).

Related Procedure:

See DI 28005.205 concerning cessation month where a group II exception applies.

B. Definitions and references regarding group II exceptions

1. Fraud or similar fault (FSF)

For definitions of the terms “fraud” and “similar fault” refer to GN 04105.005B.

The Group II exception for FSF applies when a prior favorable determination or decision involved FSF. If we find that any prior favorable or partially favorable decision was obtained by FSF, we may find that the beneficiary or recipient is not disabled. In addition, we may reopen the prior determination on the remaining evidence.

This exception does not apply when FSF is involved only in the pending CDR. In this situation; follow the FSF instructions in DI 23025.000. When FSF occurs in the pending CDR, disregard evidence obtained by FSF and make a determination on the remaining evidence. This may result in either a cessation or a continuance determination.

References:

  • DI 27505.015 Fraud or Similar Fault (FSF) - Reopenings

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

2. Failure to cooperate

Failure to cooperate (FTC) means the beneficiary or recipient failed to comply with the request for evidence or action without good cause. Specifically,

  • the beneficiary or recipient did not state orally or in writing that he or she would not provide the needed evidence (e.g. description of past work) or perform the needed action (e.g. respond to a call in letter), or

  • the beneficiary or recipient states orally or in writing that he or she will not provide the needed evidence or perform the needed action, and the individual does not provide good cause why he or she will not cooperate with the request.

If the beneficiary or recipient provides good cause for not cooperating, give the individual another opportunity to provide the needed evidence or perform the needed action. FTC without good cause is a basis for the Disability Determinations Services (DDS) to find a cessation and terminate Title II and/or Title XVI benefits only when there is not enough evidence in file to justify a continuance. FTC does not apply if there is enough evidence to make a continuance determination. For good cause reasons for FTC, see DI 28075.005H.1.

Children are not ordinarily in a position to pursue their claims independently. Make special efforts in Title XVI child cases involving noncooperation to identify and contact another adult or agency responsible for the child's care.

The general approach to apply FTC and whereabouts unknown (WU) for CDRs is located in DI 28075.005. The references cited below provide a more detailed overview of the FTC and WU process that applies to CDRs as well as initial claims. Field office (FO) instructions can be found in DI 13015.001 through DI 13015.025.

References:

  • DI 23007.000 Failure to Cooperate - Table of Contents

  • DI 25205.020 Failure to Cooperate and Insufficient Evidence in Title XVI Disabled Child (DC) Cases

  • DI 28075.005 Failure to Cooperate (FTC) and Whereabouts Unknown (WU) During a Medical Continuing Disability Review (CDR)

3. Whereabouts unknown

WU status exists when there is a question that needs the be resolved about whether the beneficiary or recipient continues to be disabled and the individual cannot be located at the last known address. If the DDS identifies the WU exception applies, the disability examiner stops development and returns the case to the FO as a "No Determination."

References:

  • DI 13015.025B Field Office (FO) Assistance in Medical Continuing Disability Reviews (CDR) and Failure to Cooperate-Insufficient Evidence Decision (FTC) or Whereabouts Unknown (WU)

  • DI 28075.005 Failure to Cooperate (FTC) and Whereabouts Unknown (WU) During a Medical Continuing Disability Review (CDR)

4. Failure to follow prescribed treatment

An individual must follow his or her own medical source’s prescribed treatment to receive disability, SSI, or statutory blindness benefits if the treatment is expected to:

  • restore the ability to engage in SGA in adult claim,

  • reduce functional limitations so that they are no longer marked and severe in child claims, or

  • restore vision in blindness claims.

    However, we do not require the individual to follow the prescribed treatment if he or she shows good cause. See POMS DI 23010.011C for good cause reasons for failing to follow prescribed treatment.

References:

  • DI 23010.006 Failure to Follow Prescribed Treatment (FTFPT) - General

  • DI 23010.007D When to Apply Failure to Follow Prescribed Treatment (FTFPT) Policy


DI 28020 TN 40 - Exceptions to Medical Improvement - 1/05/2022