Identification Number:
DI 28005 TN 9
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
Title:The CDR Evaluation Process
Type:POMS Transmittals
Program:Disability
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part DI – Disability Insurance
Chapter 280 – Continuing Disability Review Cases
Subchapter 05 – The CDR Evaluation Process
Transmittal No. 9, 07/07/2021

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

This is a Quick Action Transmittal. These revisions do not change or introduce new policy or procedure. Reference section titles updated to reflect recent revisions to DI 28020 sections published 07/01/2021.

Summary of Changes

DI 28005.007 Substitution of Judgment (SOJ) During a Medical Continuing Disability Review (CDR)

DI 28020 reference titles updated in subsection D.

DI 28005.205 Determining the Cessation Month in Continuing Disability Review (CDR) Cases

DI 28020 reference titles updated in subsection E.

DI 28005.007 Substitution of Judgment (SOJ) During a Medical Continuing Disability Review (CDR)

During the CDR adjudication process, the current adjudicator may arrive at a different determination than the comparison point decision (CPD) adjudicator. This may occur even when the previous determination is fully documented and rationalized.

A. What is SOJ?

SOJ occurs when an adjudicator comes to a different determination than a prior adjudicator after reviewing the same evidence and:

  • the determinations are equally supportable based on the evidence in the folder, and

  • the previous adjudicator has fully documented the folder.

The term “determination” means medical assessment (including severity and residual functional capacity (RFC)), vocational assessment, medical-vocational assessment, or determination of disabled or not disabled.

The term “support” or “supportable” means conforming to the Social Security Administration (SSA) disability program policy and procedures.

When reviewing the CPD evidence during the CDR, the current adjudicator must be aware of the SOJ concept as a review principle and must not substitute his or her own judgment by attempting to re-adjudicate the case or intentionally search for a Group I prior error.

Even though the CPD folder has complete and accurate documentation, the evidence in the folder supports the determination, and the determination complies with SSA policy; the CPD adjudicator and the CDR adjudicator may arrive at opposite, equally supportable conclusions. In such situations, the CDR adjudicator must not substitute his or her judgment for that of the CPD adjudicator.

B. Identifying SOJ

1. Substituting judgment

If:

  1. a) 

    The CPD adjudicator fully developed and documented the case with evidence supporting the CPD determination based on policy guidance;

  2. b) 

    The CPD adjudicator considered all the facts in making the determination;

  3. c) 

    The CDR adjudicator, after considering all the facts, believes the evidence directs a different or opposite determination than the CPD adjudicator’s; and

  4. d) 

    Determinations from both the CPD and CDR are equally supportable, then

SOJ occurs if the CDR adjudicator applied an error exception.

 

2. Example of SOJ

At CDR: The individual complains currently of back pain and is taking over-the-counter medications because he no longer has a regular doctor. He reports difficulty standing due to the pain, but is able to perform some light household chores. Examinations show he walks with a slight limp on the right side. Recent x-rays show mild-moderate lumbar stenosis. Based on this evidence the current adjudicator prepares a light RFC assessment. The individual’s benefits ceases because the vocational rules indicate “not disabled”.

At CPD: The individual reported difficulty standing and walking, and was taking medicine prescribed by his pain management doctor. X-rays showed mild-moderate stenosis. The CPD adjudicator prepared an allowance based on a sedentary RFC due to back pain.

Discussion: In the example provided, the individual currently complains of back pain and difficulty standing and walking, and is taking pain medications (symptoms), he walks with a limp (signs), and x-rays (lab findings) are consistent with films from the CPD. The current adjudicator substituted judgment (a light RFC) for that of the CPD adjudicator (a sedentary RFC). There was no need for a current RFC assessment since the symptoms, signs and lab findings have not significantly changed since the CPD. The current adjudicator should have prepared a “No MI” determination.

NOTE: Do not apply the prior error exception, if there is reasonable doubt as to whether the CPD determination was made in error.

C. SOJ and Group I prior error exceptions

1. Identifying prior error without SOJ

When the CDR adjudicator is reviewing the CPD evidence, he or she must determine if medical improvement (MI) occurred without substituting judgment on the CPD determination. The case does not involve SOJ if, any of the following exists and the case meets the conditions to apply an exception as noted in DI 28020.001:

  1. a) 

    The CPD determination clearly contradicts the evidence present during the CPD (for example, the CPD adjudicator bases his or her determination on an incorrect interpretation of an electrocardiogram, contrary to accepted medical knowledge);

  2. b) 

    The CPD determination is contrary to specific disability program policy as it appeared during the CPD;

  3. c) 

    The CPD adjudicator has clearly misinterpreted or misrepresented the evidence in his or her determination rationale; or

  4. d) 

    All of the following exist:

  • the CPD adjudicator’s determination is not explained for the application of the medical improvement review standard (MIRS),

  • the CDR adjudicator reaches a different conclusion, and

  • the CPD adjudicator’s determination is not supportable.

2. Documenting a prior error finding

When applying a Group I exception, thoroughly document the finding of prior error. Include a supportive rationale that explains how the evidence shows the prior determination was erroneous. For additional information on applying a prior error exception and the rationale content, see DI 28020.350 and DI 28090.055. Use the error exception only if:

  • substantial evidence shows a prior determination is in error, 

  • available evidence does not show a reasonable alternate basis for the prior determination (for example, some basis other than the one actually cited), and 

  • one of the three types of prior error is found in DI 28020.350 through DI 28020.365

Do not apply a prior error exception simply because the prior determination explanation is inadequate or missing. There must be disagreement based on a reasonable interpretation of the evidence in file, and the current adjudicator’s determination must clearly be more supportable. In these instances, the current adjudicator must explain the reason for his or her disagreement and the explanation must contain specific references to the evidence in the folder or to the needed evidence.

If the CPD determination is not supportable, then the CDR adjudicator’s different determination does not represent SOJ and the adjudicator may apply an error exception when appropriate. For additional information on the Group I exceptions, see DI 28020.001B.1.

3. Example of prior error without SOJ

At CPD: The individual alleges she cannot walk due to numbness in her legs. She uses a cane when walking and must sit down to relieve tingling in her legs. Examinations shows she maintains good strength but is diagnosed with peripheral arterial disease (PAD) and was prescribed a four prong cane. Since the impairment did not meet or equal listing 4.12, the adjudicator prepared a less-than-sedentary RFC assessment.

At CDR: Current evidence shows unchanged symptoms and signs. However, review of CPD evidence showed ankle-brachial index (ABI) of .95 indicating mild PAD. The current adjudicator feels that at CPD the individual should have been capable of at least sedentary activity. The current adjudicator applies a Group I prior error exception.

Discussion: The current adjudicator applied a Group I prior error exception correctly. The results of the ABI clearly indicates that the impairment is not as severe as proposed at CPD. SOJ did not occur because the ABI clearly did contradict the prior determination.

4. Addressing prior error during a CDR

If the CDR adjudicator determines that prior error exists in the CPD determination without SOJ, then the CDR adjudicator must determine which error exception applies according to DI 28020.001B.1 and then follow the procedures to apply the prior error exception according to DI 28020.375.

D. References

  • DI 28005.005 The Continuing Disability Review (CDR) Evaluation Process for Title II and Adult Title XVI Individuals

  • DI 28010.015 Comparison of Symptoms, Signs and Laboratory Findings

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

  • DI 28020.350 Group I Exception - Prior Error Overview

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

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

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

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

  • DI 28090.055 Rationale Content - Groups I and II Exceptions

DI 28005.205 Determining the Cessation Month in Continuing Disability Review (CDR) Cases

A. Setting the cessation month

To set the cessation month in cases where disability ended, use the table in DI 28005.205C. Do not use this table in reopenings.

B. Cessation month procedure

The cessation month generally coincides with the month of the notice. Find retroactive cessation only in the situations outlined in DI 28005.205C, items 2-9, in this section.

C. Cessation month table

Use the following table to determine the cessation month in CDR cases: 

 

If Cessation is Based On:

Find that Disability Ended in the Month:

Reference:

1.

ANY SITUATION NOT COVERED BY 2-8 BELOW (most cessations)

The cessation notice is mailed to the individual (general rule).

DI 28005.205B.

2.

REPORT OF EARLIER MEDICAL CESSATION

The treating physician told the individual of regained capacity to engage in substantial gainful activity (SGA), or, in a Title XVI child case, told the child's representative payee that the child could return to normal activities.

DI 28005.205D1.

3.

CLEAR-CUT CESSATION (return to work in a medical improvement expected case)

The individual returns to full-time work with no significant medical restrictions.

DI 28030.035

4.

FAILURE TO COOPERATE

The individual fails, without good cause, to do what the Social Security Administration (SSA) or the Disability Determination Services (DDS) has requested and the individual was aware that he or she had to cooperate and the repercussions of failing to do so.

DI 28075.005K; DI 25205.020 for Title XVI child cases

5.

WHEREABOUTS UNKNOWN

SSA first knew that the individual's whereabouts are unknown but not earlier than the month a continuing disability issue arose.

NOTE: Title XVI benefits are suspended rather than ceased.

DI 28075.005F5.

6.

FAILURE TO FOLLOW PRESCRIBED TREATMENT

The evidence clearly establishes the individual's unjustified failure to follow prescribed treatment.

DI 23010.006

7.

WORK ACTIVITY ONLY

The individual first engages in SGA following completion of any applicable trial work period. DDSs do not decide this issue. Do not cease Title XVI cases on this basis.

DI 28050.001
DI 28075.600
SI 02302.001

8.

RECOVERY PRIOR TO INITIAL ALLOWANCE DECISION (closed period cases)

Shown by the evidence.

DI 25510.001

9.

Fraud or similar fault

When the individual is no longer disabled, if applicable, after the fraudulent evidence is removed or disregarded during the determination.  Base this determination on sequential evaluation for CDRs; also consider the information listed in the “Reference” column.

DI 23025.000

D. Determining cessation months

1. Report of earlier medical cessations

The following situations involve the setting of earlier cessation months.

  1. a. 

    Find retroactive cessation in cases where there is no doubt that the individual was aware that he or she was able to work. Alternatively, in a Title XVI child case, there is no doubt that the child's representative payee (or the child, if the child is his or her own payee) was aware that the child could return to normal activities, but failed to report this change. That is, find retroactive cessation only if:

    • the individual (or Title XVI child's representative payee) reports that at an earlier date the treating source informed the individual that he or she had regained the capacity to return to work or, in a Title XVI child case, had informed the child's representative payee that the child could return to normal activities; or

    • the treating source voluntarily reports the individual was informed at an earlier date that he or she had the capacity to return to work or, in a Title XVI child case, the child's representative payee was informed that the child could return to normal activities.

  2. b. 

    Set cessation as of the month the individual was made aware he or she had regained capacity to engage in SGA or, in a Title XVI child case, the child's representative payee was made aware that the child could return to normal activities.

  3. c. 

    Do not set this type of retroactive cessation date if:

    • there is substantial conflict between statements from the treating source and the individual (or, in a Title XVI child case, the treating source and the child's representative payee) concerning the individual's awareness of capacity to work, or the child's ability to return to normal activities; or

    • inadequate (or no) objective medical evidence supports the statement from the treating source establishing the retroactive cessation date.

2. Cessation month in error exception cases

In cessations that rely on the error exception to medical improvement (MI), do not find retroactive cessation unless the conditions for reopening the prior decision are met.

3. Cessation month in low birth weight (LBW) infant cases

For LBW infants who are found no longer disabled, establish the cessation month no earlier than the month the baby attains age 1.

E. References

  • DI 25225.060 Examples of Impairments That Functionally Equal The Listings (Section 416.926a(m))

  • DI 25235.005 Medical Diary Criteria for Certain Title XVI Disabled Infants

  • DI 25235.006 Medical Diary Criteria for Low Birth Weight (LBW) Infants under Title XVI

  • DI 27501.001 Reopenings and Revisions: Pertinent Definitions and Related Policy

  • DI 28020.350 Group I Exception - Prior Error Overview

  • DI 23025.000 Fraud or Similar Fault


DI 28005 TN 9 - The CDR Evaluation Process - 7/07/2021