Identification Number:
EM-11034 REV
Intended Audience:All RCs/ARCs/ADs/FOs/PSCs/OMVE/
OQPs/OCO/OIO/OD/ODAR/DDSs
Originating Office:ORDP ODP
Title:Adoption Policies and Changed Vocational Profile
Type:EM - Emergency Messages
Program:Disability
Link To Reference:See References at the end of this EM.
 
Retention Date: January 30, 2018

Retention Date January 30, 2017
Retention Date June 30, 2016
Retention Date December 30, 2015
Retention Date: June 30, 2015
Retention Date: December 30, 2014

Revision: 05/24/2011 - This emergency message (EM) supersedes the Disability Determination Services (DDS) specific portions of Adoption Policies for the Special Title II Disability Workload and Other Cases EM-01204 that address how to evaluate claimants who have worked since a favorable determination and are filing a new claim on another title. The FO should continue to follow the instructions in EM-01204.

This EM provides DDS policy guidance for adjudicating cases with a potential issue of a changed vocational profile. EM-01204 inaccurately referred to this policy concept as an “improved” vocational profile. We are clarifying this wording to “changed” vocational profile. The reason adoption does not apply in these cases is because the facts have changed since the prior favorable determination. The change may or may not “improve” the claimant’s vocational profile.

The DDS must adopt a prior favorable disability determination/decision by SSA or the court for the same period in the new disability claim provided the same rules for determining disability apply. Adoption does not apply if the prior determination/decision is clearly incorrect and can be reopened and revised under the rules of administrative finality. See detailed policies on adoption:
· DI 27515.001 Collateral Estoppel – General
· DI 27515.010 Association of Prior Folder in DDS Collateral Estoppel Claims
· DI 27515.015 Questioning the Prior Disability Determination
· DI 27515.020 New Title II DIB Claim – Title XVI Disability Previously Established
· DI 27515.035 Resolution of Conflict in Title II/Title XVI Claims
· DI 27515.040 DWB Claim Filed – Prior Disability Has not Ceased
· DI 27515.045 DC Disability Established – Title II Claim Filed
· DI 27515.050 CDR Issues in Collateral Estoppel Cases
· EM-01204 For reminders to the field office (FO) on the critical nature of investigating work since the prior favorable determination

    Definition of substantive determination
    A substantive determination requires the adjudicator to make an independent determination on a new filing using the same rules of development and adjudication as he or she would for a new claim in which there was no adoption issue.

    Changed vocational profile and adoption
    When the claimant has worked since the prior favorable determination, it is possible that he or she has a changed vocational profile. If the claimant has a changed vocational profile, adoption does not apply and the adjudicator must develop the new claim and make a substantive determination.

    The DDS will adopt a prior determination to a new filing if:
    1) The rules of adoption apply. See
    DI 27515.001; and
    2) The work was not relevant—not substantial gainful activity (SGA), not in the relevant period, or not done long enough to learn it; or
    3) The basis of the prior favorable determination was meeting or equaling a listing.


    The DDS will not adopt a prior determination but make a substantive determination on the new filing if:
    1) The rules of adoption do not apply. See DI 27515.001; or
    2) The claimant’s work meets all the relevancy requirements—SGA, in the relevant period, and done long enough to learn it; and
    3) The basis of the prior favorable determination was a medical-vocational allowance.

    CAUTION: Even if adoption does not apply, a substantive determination may ultimately be favorable on the new filing. Keep in mind that the claimant once met the disability requirements, is now older, and his or her impairment(s) may have progressed with time.

    The adjudicator will determine if there is an issue of a changed vocational profile and if adoption applies in the most expeditious manner given the facts of the case. For example:
    · The basis of the prior favorable determination is unknown, but the rules of adoption apply and the claimant did not perform his or her work long enough to learn it—adopt the prior determination without addressing the issue of whether work was SGA or done in the relevant period.
    · The adjudicator discovers the adoption issue after doing substantive development, and the new development supports a fully favorable allowance—make a favorable determination on the new filing without resolving the issue of a changed vocational profile. If the new development supports a denial, the adjudicator must determine whether adoption applies. If adoption applies, the adjudicator will discontinue development on the new claim and adopt the prior favorable determination. Handle any continuing disability review (CDR) issues post adjudicatively. See CDR Issues in Collateral Estoppel Cases DI 27515.050.

    · The rules of adoption apply and the basis of the prior determination was a meets, but it appears that the claimant’s work would not be SGA if averaging of the claimant’s earnings was appropriate and averaged earnings would not be SGA—adoption applies since the prior favorable determination was a meets. Do not ask the FO for assistance in determining whether work was SGA unless there is a possibility of an earlier onset based on the claimant’s work not being at SGA level. If work since the prior favorable determination is an issue in the onset of the new claim alert the FO to the possibility of an earlier onset based on the claimant’s work not being at SGA level. See, Field Office and Disability Adjudicator Responsibilities on Work Issues and Onset Dates DI 25501.131.

    NOTE: Although the FO has jurisdiction for making an SGA determination, the DDS must be familiar with SGA-related policies in order to recognize and seek FO assistance for any SGA issue that may be material to a determination.

    Prior favorable determination was a meets or equals
    If the basis of the prior favorable determination was a meets or equals, and the claimant has worked since the prior favorable determination, there is no issue of a changed vocational profile. If it appears the claimant may have medically improved since the prior determination, the adjudicator will adopt the favorable determination and address the CDR issue post adjudicatively. For the kinds of events that may initiate a CDR, see DI 28001.015.

    Prior favorable determination was a medical-vocational allowance
    If a prior favorable determination was a medical-vocational allowance, and the claimant has worked since the prior favorable determination, work that meets all of the relevancy requirements changes the claimant’s vocational profile for the new filing so that adoption does not apply. The adjudicator must develop medical evidence for the new filing and make a substantive determination.

    Most recent favorable medical determination was a CDR
    If the most recent favorable medical determination was a CDR, the adjudicator must determine the basis of the continuance. If the basis of the most recent continuance was meeting or equaling a listing, there is no issue of a changed vocational profile.
    If the basis of the most recent continuance was medical-vocational, and the claimant has relevant work since he or she was initially entitled, adoption does not apply and the adjudicator must substantively develop and decide the case.

    If the basis of the most recent continuance was no medical improvement, and the claimant has relevant work since his or her previous continuance, determine the basis of the next most recent allowance or continuance. Examples:
    · The most recent favorable determination was a continuance for no medical improvement. If the basis of the initial allowance was a meets or equals, adoption applies.

    · The most recent favorable determination was a continuance for no medical improvement. If the next most recent continuance was for meeting or equaling a listing, adoption applies.

    · The most recent favorable determination was a continuance for no medical improvement. The next most recent continuance was also for no medical improvement. The initial allowance was medical vocational. Adoption does not apply unless the claimant’s work since the previous favorable determination was not relevant.

    For title II reason for continuance codes, see DI 28086.013C and for title XVI reason for continuance codes DI 28085.013C.

    The basis of the prior favorable determination cannot be determined
    If it is not possible for the adjudicator to determine the basis of the previous favorable determination, he or she cannot adopt unless he or she can establish that the claimant’s work since the previous entitlement does not meet the requirements for relevant work. If the work was not relevant, adoption applies. If the claimant’s work was relevant, the adjudicator will develop the case and make a substantive determination.

    The critical nature of determining whether work is relevant
    If the basis for the previous favorable allowance is unknown or medical-vocational, the DDS must be alert to the possibility that the claimant’s work since the previous favorable determination could:

    · Meet the requirements for an unsuccessful work attempt (UWA), or
    · Subsidy or employment related work expenses may reduce the claimant’s earnings below the SGA level, or
    · Averaging of the claimant’s wages could apply and reduce the claimant’s earnings to below SGA level.
    If there is a possibility the claimant’s earnings fit the criteria for a UWA or were not at SGA level, the DDS must ask the FO to develop this issue prior to determining whether to adopt the previous favorable determination. See details:

    NOTE: Although SGA will generally be the deciding factor in a changed vocational profile issue, if the work since the previous filing was not in the 15-year relevant period, or the claimant did not perform the work long enough to learn it, the work is not relevant, and there is no issue of a changed vocational profile.

    Changed vocational profile applies and new filing is a denial
    In many instances, development on the new filing will result in a favorable determination. However, if the new filing is a denial, the adjudicator will enter list code 581 in item 26 of the SSA-831 so subsequent reviewers know the decision on the new filing does not conflict with the existing entitlement, and a changed vocational profile applies. The denial of the new filing does not necessarily raise an issue of medical improvement in the existing entitlement. If the new filing is a denial and evidence obtained for the new filing or other factor raises a medical improvement issue on the existing entitlement, the adjudicator must obtain the comparison point decision (CPD) folder DI 27515.050A.2. and issue the determination on the new filing and the CDR determination concurrently. The FO is responsible for notifying the claimant about the CDR per DI 13005.032. Send an electronic or paper request for assistance (SSA-883) asking the FO to notify the claimant and update the Disability Control File with the CDR. Neither the FO nor the adjudicator need to obtain an SSA-454. The adjudicator should use the SSA-3368 for the new filing and the CDR. For the kinds of events that may initiate a CDR, see DI 28001.015.

    NOTE: The adjudicator will need to process both the subsequent filing and the CDR as paper folders since it is not currently possible to have pending electronic cases at different levels.

    Adoption of favorable determinations in which the claimant’s impairment could improve
    As long as the new filing meets the duration requirement and there is no issue of a changed vocational profile, the rules of adoption apply. If there is an issue of medical improvement, the DDS must address this post adjudicatively. For example:
    The claimant met listing 13.06A as of the date of his diagnosis of acute leukemia. He had a bone marrow transplant 9 months after his diagnosis. It has now been 3 years since his bone marrow transplant with no recurrence. A year after his bone marrow transplant, he began working below SGA level. At 3 years after his bone marrow transplant, he filed for T2 benefits. Although the claimant is now outside the 2-year listing limitation for acute leukemia and the claimant may have medical improvement related to the ability to work, adoption applies. The adjudicator must adopt and address the issue of medical improvement on both titles post adjudicatively

    Contacts
    Direct all program related and technical questions to your Regional Office (RO) support staff or (Program Service Center) PSC staff. RO support staff or PSC staff may refer questions or problems to their Central Office contacts.

    References
    DI 10505.015 Averaging Countable Earnings
    DI 10505.025 Special Employment Situations
    DI 10520.030 Determining When IRWE Are Deductible and How They are Distributed
    DI 11011.001 Coll