Identification Number:
DI 28020 TN 38
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
Title:Exceptions to Medical Improvement
Type:POMS Transmittals
Program:Title II (RSI),Title XVI (SSI),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. 38, 07/01/2021

Audience

PSC: CS, DE, DEC, DTE, IES, RECONR, SCPS, TSA, TST;
OCO-OEIO: CR, ERE, FDE, RECONE;
OCO-ODO: BET, CR, CTE, CTE TE, DE, DEC, DS, PETE, PETL, RECONE;
ODD-DDS: ADJ, DHU;

Originating Component

ODP

Effective Date

Upon Receipt

Background

 

We are revising this section to provide clarity and updated references to policies relating to exceptions to medical improvement. We expanded text and revised wording for clarity and consistency, implemented plain language, and included additional references for related policy areas.

Summary of Changes

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

  • Included additional links for related reference material

  • Revised text for consistency and clarity

DI 28020.050 Group I Exception - Substantial Gainful Activity

  • Revised the section title from "Substantial Gainful Activity (SGA)" to "Group I Exception - Substantial Gainful Activity " for improved identification and distinction between Group I and Group II exceptions

  • Revised subsection titles for improved readability and consistency

  • Added additional references and repaired hyperlinks

  • Incorporated additional discussion and references about field office and Disability Determinations Services instructions for potential work situations during the continuing disability review

  • Removed the content in subsection D "When the SGA Group I exception may apply" and incorporated the associated text in this subsection A, "Introduction to the substantial gainful activity exception to medical improvement"

  • Revised subsection E "References" to subsection D, based on additional edits outlined above

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

  • Revised the section title from "Advances in Medical or Vocational Therapy or Technology" to "Group I Exception - Advances in Medical or Vocational Therapy or Technology" for improved identification and distinction between Group I and Group II exceptions

  • Revised subsection titles for improved readability and consistency

  • Expanded text for clarity and additional instructions

  • Revised subsection E by removing all the existing text because the examples provided were outdated and contained misleading information. Included a new example in this subsection. Additional examples that are more specific are present in the related sections.

  • Added additional references and hyperlinks.

DI 28020.150 Group I Exception - Vocational Therapy

  • Revised the section title from "Vocational Therapy" to "Group I Exception - Vocational Therapy" for improved identification and distinction between Group I and Group II exceptions

  • Revised subsection titles for improved readability and consistency

  • Revised existing subsection C2, "Decision" criteria is now section C3, section C2 is now "Documentation sample for vocational therapy"

  • Expanded text for improved instructions and content

  • Incorporated additional guidance for clarity and consistency in application of the policy

  • Created subsection G to include relevant references to related sections

DI 28020.250 Group I Exception - New or Improved Diagnostic or Evaluative Techniques

  • Revised the section title from "New or Improved Diagnostic or Evaluative Techniques" to "Group I Exception - New or Improved Diagnostic or Evaluative Techniques" for improved identification and distinction between Group I and Group II exceptions

  • Revised subsection titles for improved readability and consistency

  • Incorporated additional information to reinforce the criteria required to determine if the exception applies

DI 28020.350 Group I Exception - Prior Error Overview

  • Revised the section title from "Prior Error Exception" to "Group I Exception - Prior Error Overview" for improved identification and distinction between Group I and Group II exceptions

  • Subsection B1 "Evidence to consider" is now subsection B2. Subsection B1 is now "When to apply the prior error exception."

  • Subsection B2 "No substitution of judgment" is now subsection B3.

  • Subsection C1 "Conditions for use" is now revised to "Application of the prior error exception." Criteria previously in C1 is now in subsection B1.

  • Revised subsection titles for improved readability and consistency

  • Subsection C2, "Prepare a rationale" section is now C3. Subsection C2 contains new content with instructions for reopening and is now titled" "Determine whether reopening is appropriate"

  • Added additional information relating to consideration of reopening and provided hyperlinks and references for additional information

  • Added additional references and hyperlinks

  • Added new subsection G for "References"

DI 28020.355 Group I Exception - Prior Error, Error on the Face of the Record

  • Revised the section title from "Error on the Face of the Record" to "Group I Exception - Prior Error, Error on the Face of the Record" for improved identification and distinction between Group I and Group II exceptions

  • Revised wording for clarity

  • Added additional references and hyperlinks

  • Revised wording in the examples in subsection C to provide detailed, clear examples

  • Revised subsection titles for improved readability and consistency

DI 28020.360 Group I Exception - Prior Error, Required and Material Evidence Was Missing

  • Updated reference with a newer version of the cardiac listings as the other example had a listing that was revised, used current listing so as not to confuse the reader with also addressing obsolete listing

  • Expanded the explanation of the examples for clarity and policy interpretation

  • Revised the section title from "Required and Material Evidence Was Missing" to "Group I Exception - Prior Error, Required and Material Evidence Was Missing" for improved identification and distinction between Group I and Group II exceptions

  • Revised subsection titles for improved readability and consistency

DI 28020.365 Group I Exception - Prior Error, New Evidence Related to the Prior Determination or Decision

  • Updated the example to include use of multiple body systems, as cardiac was used in the example in DI 28020.360

  • Revised the section title from "New Evidence Related to the Prior Determination or Decision" to "Group I Exception - Prior Error, New Evidence Related to the Prior Determination or Decision" for improved identification and distinction between Group I and Group II exceptions

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

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

The exceptions to medical improvement (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 medical improvement

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

  • 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 (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 , "Group II Exceptions," 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 medical improvement

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 are 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 medical improvement

  • 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 28020.050 Group I Exception - Substantial Gainful Activity

NOTE: This is a field office (FO) determination and is not for disability determination services (DDS) use. The DDS must return the file to the FO to determine if this exception applies.

A. Introduction to the substantial gainful activity exception to medical improvement

The substantial gainful activity (SGA) exception and step 1 of the adult continuing disability review (CDR) sequential evaluation process apply only to Title II cases. The SGA exception does not apply to Title XVI cases. Title II CDR cases with work during a period of disability are subject to trial work period (TWP) and extended period of eligibility (EPE) provisions. The SGA exception applies when an individual has completed a TWP or EPE, and continues to perform SGA. The exception cannot be applied to cases involving a TWP that is in progress. See additional exclusions below in DI 28020.050C.

In the event that the SGA issue is not discovered during initial development of the CDR at step 1 of the adult CDR sequential evaluation process, the SGA exception allows the adjudicator to evaluate the issue if it is discovered later in the adjudication process. An SGA issue for a Title II beneficiary must be referred to the FO to determine if this exception applies and will not require a medical determination.

B. When the substantial gainful activity exception applies

The SGA exception applies when an individual has completed a TWP or EPE, and continues to perform SGA. Only the FO can find a cessation based on SGA. Many cases that have had an SGA cessation by the FO still require a DDS determination regarding medical severity. If the FO establishes that the work is not SGA, the FO will return the file to the DDS for a medical determination, as the SGA exception will not apply.

If the beneficiary is working, the FO should document which work incentive provisions, if any, apply.

  • For TWP, see DI 28050.010 , "DDS Role in Work Activity Cases."

  • For EPE, see DI 28055.025, "DDS Evaluation and Processing of EPE Cases."

  • SGA is not a basis for cessation in Title XVI cases, see DI 28075.610, "Disability Determinations Services (DDS) Development and Evaluation in 1619 Cases" for additional information.

If the beneficiary is working at the time of the CDR or may have completed a TWP or EPE and the FO did not address the work situation, clearly document the need for work development and return the file to the FO to determine if the SGA exception applies. If the DDS discovers work activity during the current period of disability that was not developed by the FO for possible TWP or EPE, follow the instructions in DI 28050.010.

C. Exclusions to the substantial gainful activity exception

The SGA exception does not apply in:

  1. 1. 

    TWP cases within the current period of disability;

  2. 2. 

    EPE cases;

  3. 3. 

    Title XVI 1619 cases; or

  4. 4. 

    CDRs with less than 9 months of work activity.

NOTE: Work that a beneficiary performs during a TWP or EPE in the current period of disability review is not considered past relevant work (PRW), although the same type of work may be relevant at the CDR if it was performed within the relevant period for the CDR. See DI 25001.001A.64., "Medical and Vocational Quick Reference Guide" for additional information regarding the relevant period and DI 25005.015, "Determination of Capacity for Past Work-- Relevance Issues" for information on assessing PRW.

D. References

DI 28005.015 Step-by-Step Discussion of the Adult Continuing Disability Review (CDR) Evaluation Process

DI 28050.000 Work Activity Cases Trial Work Period - Table of Contents

DI 28055.000 Extended Period of Eligibility (EPE) Cases - Table of Contents

DI 28055.015 Disabling Impairment Requirement and When to Address the Issue

DI 28075.600 Overview of the 1619 Continuing Disability Review (CDR) Process

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).

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:

    Comparison point decision (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 28020.150 Group I Exception - Vocational Therapy

A.  Introduction to the vocational therapy exception

Vocational therapy (related to the individual's ability to work) includes any additional education, training, or work experience since the comparison point decision (CPD) that improves the individual's ability to meet the vocational requirements of more jobs. The vocational therapy may be vocationally significant if it prepares an individual to do a specific job or provides background to do a number of jobs in the same field. The vocational therapy exception considers vocational factors, unlike the medical and vocational concepts that apply at step 4 of the adult continuing disability review (CDR) sequential evaluation process, when considering if medical improvement (MI) relates to the ability to work.

 

B. When the vocational therapy exception applies

This exception applies when an individual receives additional education, training, or work experience since the CPD that has enhanced the individual’s vocational profile. The additional education or training is focused on a specific job type or sufficient to apply a different vocational rule, resulting in the ability to meet the vocational requirements of more jobs.

NOTE: If vocational therapy is in progress or is not complete at the time of the review, do not apply the vocational therapy exception and document this information in a SSA-5002 Report of Contact or disability determination explanation (DDE).

C. How to apply the vocational therapy exception

1. Development

a. 

Obtain documentation of the type of vocational education, training or work experience the individual received since the CPD.

b. 

Include information about the nature, extent, type, and relevance of the education, training, or work experience.

c. 

Use the available information to determine whether the vocational therapy improved the individual's ability to perform and meet the skill and ability requirements of more jobs.

d. 

The disability determination services (DDS) must follow case development responsibilities as outlined in DI 22501.002. Documentation of vocational education, training, or work experience the individual has received since the CPD may be designated on the SSA-454. Some examples of documentation that may be received from a vocational therapy program are, but not limited to:

  • records from the educational or training facility;

  • progress reports or notes from vocational rehabilitation sessions; or

  • a certificate of completion of an education program (such as a degree or training certificate).

NOTE: Do not apply the vocational therapy exception if evidence is not sufficient to determine if the vocational therapy has resulted in the individual's improved ability to meet the vocational requirements of more jobs.

2. Documentation sample for vocational therapy

If the information required in DI 28020.150C.1. is not in the file, consider contact with a third party if one is available as defined in DI 23007.001C, such as a job or training coach, rehabilitation counselor, or other party that closely worked with the individual during the course of his or her training to obtain detailed information relating to the vocational therapy performance. If additional documentation is obtained, this information can be recorded in a SSA-5002 Report of Contact or the DDE.

Example: A Title II beneficiary completed specialized training to repair small appliances after the CPD. The individual provided the name of the rehabilitation program and course, and provided contact information for the instructor on the SSA-454. The adjudicator contacted the instructor and obtained information regarding the length of the course, the content and nature of the training, the names of specific small appliances that the individual learned about and practiced repair of in the training environment, and a description of his or her performance in the program. The instructor verified that the individual successfully completed the program and demonstrated a level of understanding that could be applied to vocational settings in the field. The adjudicator documented this information in a SSA-5002 Report of Contact.

3. Decision

Apply this exception if all of the following criteria are met:

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

  • evidence shows that the individual has received vocational therapy; and

  • the additional vocational education or training, or work experience completed since the CPD has improved the individual’s ability to meet the vocational requirements of more jobs.

If the exception applies, the adjudicator must proceed to step 6 of the adult CDR sequential evaluation process.

D. Additional considerations for the vocational therapy exception

  • When this exception applies, it is not sufficient by itself to find an individual capable of engaging in substantial gainful activity (SGA). Continue to the next step of the adult CDR sequential evaluation process.

  • Do not substitute judgment if the individual's vocational profile is essentially unchanged after the individual has completed the vocational therapy.

  • Do not confuse this exception with the 301 work incentives provision. Under the 301 provision, if the individual is participating in an approved vocational rehabilitation program, then disability benefits may continue even though the disability has ceased. See DI 28001.040, "Cases with Vocational Rehabilitation (VR) Involvement (301 Cases)."

  • If disability continues but the individual is currently receiving training or education, consider a vocational diary described in DI 26525.050.

E. Exclusions to the vocational therapy exception

This exception does not apply to:

  • Title XVI claims where the recipient is eligible under section 1619;

  • cases where the individual has been eligible under section 1619 within the last 12 months, which in concurrent Title II and Title XVI cases, could result in cessation on Title II and simultaneous continuance in Title XVI;

  • Title XVI child cases; or

  • cases where the CPD determination was based on meeting or equaling the Listing of Impairments and there has been no MI related to ability to work.

F. Examples of the vocational therapy exception

1. Vocational therapy exception applies

CPD: An illiterate individual was an allowance based on medical and vocational factors.

CDR decision: The individual obtained additional education and now is able to read and write.

Explanation: The additional education is sufficient to apply a different vocational rule, therefore the exception applies. The adjudicator will apply the vocational therapy exception then proceed to the next step in the adult CDR sequential evaluation process. For additional information applying the medical-vocational guidelines, see DI 25025.005B1.

2. Vocational therapy exception applies

CPD: An individual was allowed on a medical-vocational basis at the CPD because of the inability to perform other work due to physical impairments. The individual's impairment limited the individual to a sedentary level of exertion. The individual had previous work that required a medium level of exertion. Considering the individual’s age, education, and work history, a sedentary residual functional capacity (RFC) resulted in an allowance.

CDR decision: The current evidence shows no MI. The individual can still complete sedentary work. Since the last favorable decision, the individual completed a specialized training course that qualified them for a job in data processing as a computer programmer.

Explanation: The additional education has an impact on the individual's vocational profile and is focused on a specific type of job. Therefore, the vocational therapy received is related to the ability to work and this exception applies. Even though there is no change in the individual's functional capacity, the individual is now able to engage in SGA, as the work of a computer programmer is sedentary in nature and does not exceed the individual's RFC. The adjudicator will apply the exception and proceed to the next step in the adult CDR sequential evaluation process.

3. Vocational therapy exception does NOT apply

CPD: An individual with a high school education was allowed based on medical and vocational considerations.

CDR decision: After the CPD, the individual attended a technical school and received a completion certificate. The education covered multiple subjects in a relatively short period and was not specific to a particular job or skill set. The individual attempted to work part time for approximately two months after obtaining his or her associate degree and ultimately stopped working due to his or her limitations.

Explanation : This exception does not apply because the additional education is not related to the ability to work. The education is not focused on a specific type of job or skill set resulting in the ability to meet the vocational requirements of more jobs.

G. References

DI 25015.010 Education as a Vocational Factor

DI 25015.015 Work Experience as a Vocational Factor

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

DI 28020.250 Group I Exception - New or Improved Diagnostic or Evaluative Techniques

A. Introduction to new or improved diagnostic or evaluative techniques

New or improved diagnostic or evaluative techniques show that the individual's impairment(s) is not as severe as it was previously determined in the most recent favorable medical decision.

B. How to apply the new or improved diagnostic or evaluative techniques exception

In order to apply this exception, all of the following criteria must be met:

  • Medical improvement (MI) has NOT occurred or MI is NOT related to the ability to work.

  • The new or improved diagnostic or evaluative technique must be generally available after the most recent favorable medical determination or decision.

  • The public has been notified of the new or improved technique.

  • The current evidence shows the individual is capable of engaging in substantial gainful activity or in a Title XVI childhood disability case, the child does not have an impairment(s) causing marked or severe limitations or that meets, medically equals, or functionally equals the listings.

Based on the above criteria, there will be limited situations where the exception applies. The diagnostic or evaluative procedure must be listed in the subchapter DI 33535.000.

1. New or improved techniques that may impact the disability determination

If a new or improved diagnostic or evaluative technique became generally available after the comparison point decision (CPD), consider the explanation of the techniques located in the appropriate section of DI 33535.000 and the impact of the technique on the disability determination.

2. Applying the exception

Decide whether the technique is the primary basis for showing the impairment(s) is not as disabling as previously thought. Apply the exception if the new or improved technique has an important impact on the determination as shown by the following:

  • an individual (with otherwise unchanged findings, allowed under the listing requirements) has no impairment(s) of listing severity; or

  • an individual has more functional capacity than previously thought (based on otherwise unchanged findings).

3. Referrals for review of medical diagnostic or evaluative techniques

When evidence includes results of techniques that appear newly developed or newly improved, which adjudicators have not encountered before, submit such cases (through the usual regional office channels) for consideration of adding the new technique to the cumulative list located in DI 33535.000. When submitting a technique for consideration, include a rationale explaining why the new or improved technique shows that the impairment(s) is not as disabling as previously determined.

4. Additional development

Apply the usual documentation requirements. Do not order a test or evaluation just to apply this exception. A technique listed in DI 33535.000 may be requested in a consultative examination if it is part of the usual documentation requirements for the impairment(s) involved and it is not received as part of the medical evidence of record.

C. Exclusions of the new or improved diagnostic or evaluative techniques exception

Do not apply this exception if the new or improved diagnostic or evaluative technique:

  • is not listed in DI 33535.000;

  • became generally available before the CPD, as shown in DI 33535.000; or

  • was available to the individual at the time of the CPD (as shown by CPD evidence).

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 sequential evaluation 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

1. Example of substitution of judgment, error does not apply

CPD: At the 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, 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)

DI 28020.355 Group I Exception - Prior Error, Error on the Face of the Record

A. When the error on the face of the record exception applies

Disability Determination Services (DDS) should find a prior determination or decision in error if the evidence shows an error on the face of the record that led to an incorrect decision. This category includes misreading evidence or misapplying an adjudicative standard (such as the Listing of Impairments or the vocational rules).

B. How to apply the error on the face of record exception

In deciding whether this error category applies, only consider evidence on the record at the time of the prior determination or decision. For additional reminders about consideration of prior error, see DI 28020.350C-E, "Group I Exception - Prior Error Overview".

C. Examples of error on the face of the record

1. Epilepsy - Error Applies

Comparison point decision (CPD): At the time of the prior decision or determination, the adjudicator found that the individual's epilepsy met listing 11.02, which required a finding of major motor seizures more frequently than once a month as documented by electroencephalogram evidence and a detailed description of a typical seizure pattern.

Continuing disability review (CDR) decision: Review of evidence from the medical source at the CPD clearly showed the seizures occurred only once or twice a year.

Explanation: The adjudicator misinterpreted evidence in file, resulting in an inappropriate application of the listing at the CPD. Find the prior determination or decision in error.

2. Vocational rule - Error Applies

CPD: At the time of the prior decision, the adjudicator found an individual disabled based on vocational rule 201.14, which applies to an individual that is:

  • age 50-54,

  • who has at least a high school education,

  • whose past relevant work is skilled or semiskilled level and those skills were not transferable, and

  • who could perform work within the sedentary occupational range.

CDR decision: During the CDR, the adjudicator finds that at the time of the prior decision the individual was actually only age 46.

Explanation: Vocational rule 201.21 should have applied, and the case should have been a denial. Find the prior determination or decision in error based on misapplication of an adjudicative standard.

3. Vertigo - Error Applies

CPD: The claim for a 50-year-old utility company lineman with twelve years of education was allowed on a medical-vocational basis because he could “no longer work at heights or in hazardous situations due to vertigo, as required in his customary job.” This was documented in a SSA-416; however, the file did not contain a residual functional capacity (RFC) assessment at CPD. No other impairment was alleged or discovered during medical development. The rationale did not discuss the ability to perform other work, nor did the file include a detailed work history.

CDR decision: The severity of the beneficiary's vertigo remained unchanged.

Explanation: Usually, a substitution of judgment (in this example, regarding the RFC) is involved in proposing to find error in prior medical-vocational decisions. However, there is a unique set of circumstances in this example. Neither the rationale nor folder reflected any attempt to evaluate “other work,” no RFC was prepared, and no vocational rule cited. Also, there were no other impairments (including no “not severe” impairments) which could form a basis for finding the beneficiary unable to do other work. The vertigo alone could not have prevented his doing all other work not involving working at heights or around machinery. The CPD was in error because of the clear misapplication (or non-application) of the other work step in the sequential evaluation process.

4. IQ 62 and back impairment - Error Does Not Apply

CPD: The individual met medical listing 12.05C based on an IQ of 62 and a back impairment. The medical records at that time demonstrated degenerative disc disease, confirmed on imaging, with restricted range of motion in the lumbar and cervical spine. Notes showed the individual ambulated with a slow, wide based gait.

CDR decision: Several medical consultants agree that the impairment did not meet listing 12.05C at the time of the prior decision. They believe the back impairment did not cause significant limitations to work-related function, which listing 12.05C required at the CPD. Currently, the evidence shows a back impairment with some limitation of function, overall findings are similar to the documented impairments at the CPD.

Explanation: Because there is no substantial evidence to show that the back impairment did not impose limitations to the extent required by listing 12.05C, application of the error exception would represent a substitution of judgment. Do not meet the error exception.

5. Fistula - Error Does Not Apply

CPD: The individual had diabetes, a draining fistula, and involuntary weight loss. The draining fistula and involuntary weight loss of at least 10 percent from baseline were present on two evaluations at least 60 days apart within a consecutive 6-month period. The individual’s pain was controlled by narcotic medication. The diabetes resulted in peripheral neuropathy with numbness of both feet and diabetic retinopathy. The best-corrected visual acuity fluctuated, although the best measurement was 20/80 in each eye. The visual fields were normal. The prior decision found the combination of impairments medically equaled Listing 5.06B for inflammatory bowel disease (IBD).

CDR decision: The current adjudicator raised the question of error because the evidence shows the individual does not (and did not) have IBD or any other disorder that would make listing 5.06 clearly applicable.

Explanation: Because of the draining fistula and weight loss, there is a reasonable relationship between the combination of impairments and listing 5.06. Do not substitute judgment. Find the error exception not met.

6. Sequential evaluation - Error Applies

CPD: In a decision, an administrative law judge (ALJ) found the claimant had no severe impairments. This finding was supported by the evidence of record. The ALJ then awarded benefits at step 5 by finding that there were no jobs that exist in significant numbers in the national economy that the claimant could perform.

CDR decision: The evidence continues to show that the claimant does not have a severe impairment.

Explanation: The CPD was in error because of the misapplication of the severe impairment step in the sequential evaluation process. The claim should have been denied at step 2 of the adult initial sequential evaluation process, and the error exception applies.

7. Erroneous activation of a sample case - Error Does Not Apply

Situation: The Disability Determination Services (DDS) proposed a continuance in a case selected for review. The Office of Quality Review (OQR) returned the case for additional development to assess medical improvement. The DDS obtained additional evidence and again proposed an allowance. DDS forwarded the case to the OQR, and an allowance was erroneously activated, releasing a notice of entitlement to the claimant. Since the individual did not file an appeal, the DDS determination became final. The OQR reviewed the additional evidence and determined the evidence supported a denial, not an allowance. The OQR referred the case to the Office of Disability Policy (ODP) for a request for program consultation (RPC) to determine if reopening was necessary. The ODP engaged in the RPC process and determined that there was not clear error in the decision and ultimately determined the allowance was appropriate.

Exception rationale: The triggering of the proposed allowance does not constitute an error since the DDS believed the evidence supported an allowance and after further review, the allowance determination was upheld after review through the RPC process. However, a denial incorrectly effectuated as an allowance would be in error. The favorable decision is adversely reopened by the DDS only if OQR shows clear error.

DI 28020.360 Group I Exception - Prior Error, Required and Material Evidence Was Missing

A. When the required and material evidence was missing error exception applies

This category of error applies if:

  • at the time of the prior determination or decision, required and material evidence of the severity of the impairment(s) was missing; and

  • the evidence in question becomes available, and upon review, it now shows that if the evidence had been present before, we would not have found the individual disabled.

B. How to apply the required and material evidence was missing error exception

Consider evidence “missing” in this context if required and material evidence (such as evidence required by the Listing of Impairments) was not obtained.

Do not develop just to obtain the missing evidence. However, include the missing evidence in file if received during routine current development.

NOTE: If the individual medically equaled a listing at the time of the prior determination or decision, do not substitute judgment in applying the error exception. Do not apply the required and material evidence error for the absence of a particular test required at the time of the prior determination if the overall evidence supported that the impairment(s) were at least equal in severity and duration to the criteria of any listed impairment. If a specified medical finding was missing in a medical equals decision at the time of the prior determination, the other medical findings of greater or equal significance relating to the same impairment should be present in the evidence and explained in the rationale content, see DI 28090.040.

C. Examples of the required and material evidence was missing error exception

1. Pulmonary Disease - Error Applies

Comparison point decision (CPD): At the time of the CPD, the adjudicator found the individual disabled based on chronic obstructive pulmonary disease (COPD) documented primarily by pulmonary function testing (PFT) results. The evidence showed he could do only light work. The adjudicator did not obtain required spirometric tracings of the testing.

Continuing disability review (CDR) decision: The physician resubmitted the original PFT report along with corresponding spirometric tracings. A review of the tracings shows the test was invalid. Current PFT (including spirometric tracings) reveals that the individual's COPD does not significantly limit the ability to perform basic work activities in any way. Review of corresponding medical evidence from the prior decision otherwise was not sufficient to support a disabling impairment.

Explanation: Find the prior decision in error.

2. Heart Disease - Error Applies

CPD: Listing 4.04B (three separate ischemic episodes within a consecutive 12-month period, each episode either requiring revascularization or documented as not amenable to revascularization) was cited as the reason for the medical decision at the CPD.

  • Although listing 4.04B criteria required an angioplasty or bypass surgery with the aforementioned ischemic episodes, the DDS never received records from Hospital C, the hospital where the third episode occurred.

  • The claimant’s cardiologist referenced stent placement in a follow up visit after the discharge from Hospital C and what appeared to be the third episode.

  • The disability determination services (DDS) medical consultant rationalized that the impairment met the listing, despite lacking Hospital C's records, since the hospitalization (presumably) for the third episode was referenced in the records of the individual's own medical source.

CDR decision: During the CDR, DDS receives Hospital C's records that were missing from the CPD.

  • The hospital records from the third episode referenced at the CPD indicate that there was no angioplasty or bypass surgery at that time.

  • DDS reviewed the cardiologist’s records cited in the CPD decision rationale and determined that the cardiologist referred to stent placement as part of the claimant’s history.

  • The records show the impairment did not meet listing 4.04B at the time of the prior determination, nor were any of the subsections of the listing met.

Explanation: Because disability would not have been found if Hospital C's records had been received, indicating that only two angioplasty procedures were completed within the 12-month period at the CPD, find the error exception met.

DI 28020.365 Group I Exception - Prior Error, New Evidence Related to the Prior Determination or Decision

CITATIONS:

20 CFR §404.1594(d)(4)(iii),
20 CFR §416.994(b)(3)(iv)(C)

A. When the new evidence related to the prior determination or decision error exception applies

This category of exception applies if:

  • new evidence that relates to the prior determination or decision refutes the conclusions that were based on the prior evidence; and

  • evidence shows the claim would not have been allowed or continued if the new evidence had been considered at the time of the prior decision.

In deciding whether this category of error applies, carefully consider whether any new evidence provides useful medical information about the status of the impairment(s) at the time of the prior decision.

B. Examples of the new evidence related to the prior determination or decision error exception

1. Tumor - Error Applies

Current evidence might show that a tumor thought to be malignant was actually benign.

2. Sickle cell disease - Error Applies

Comparison point decision (CPD): At the time of the CPD, the adjudicator found the individual disabled based on listing 7.05A for sickle cell anemia crises requiring parenteral narcotic medication. The individual's own medical source, Dr. J. Smith, documented the appropriate amount of crises with prescription and treatment with narcotic medication to meet the listing criteria.

Continuing disability review (CDR) decision: At the time of the CDR, Dr. J. Smith, the same doctor who submitted evidence at the CPD, submits records for the current CDR period and includes records from the CPD period as well.

  • The CPD period records from Dr. J. Smith were the same records used to support the allowance decision when the claimant originally met 7.05A.

  • The adjudicator notices that several pages of records from the CPD period included the beneficiary’s name and date of birth, but referred to a 56 year old female and the beneficiary was only 42 at that time of the CPD.

  • The adjudicator contacts Dr. Smith's office to clarify the discrepancy in the records. Dr. Smith reviewed the records and determined the error, that the beneficiary’s sister was a patient at the facility during that time and also was treated for sickle cell anemia.

  • Dr. Smith determined that the records were mistakenly entered under the beneficiary’s file for several visits due to a computer error. Dr. Smith's office corrected and re-sent the records, indicating that the beneficiary did not meet listing criteria at the CPD.

 

Explanation: Find the prior decision in error given the clarification received in the new evidence.


DI 28020 TN 38 - Exceptions to Medical Improvement - 7/01/2021