Identification Number:
GN 04440 TN 72
Intended Audience:See Transmittal Sheet
Originating Office:OARO Office of Quality Review
Title:Federal Quality Review of Disability Determinations
Type:POMS Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part GN – General
Chapter 044 – Quality Appraisal
Subchapter 40 – Federal Quality Review of Disability Determinations
Transmittal No. 72, 07/18/2019

Audience

PSC: DE, DEC;
OCO-OEIO: FDE;
DQB: DE, PL;
OCO-ODO: DE, DEC, DS, RECONE;

Originating Component

OQR

Effective Date

Upon Receipt

Background

The Office of Quality Review (OQR) is making editorial changes and completing updates throughout the quality review sections of the POMS to improve readability, add clarity, and ensure conformance with Plain Language Guidelines. Currently, the bulk of the information regarding substitution of judgment is in two POMS sections, GN 04440.118 and GN 0440.119. We are incorporating the information from GN 04440.119 into GN 04440.118. GN 04440.119 will be archived at publication.

 

Summary of Changes

GN 04440.118 Substitution of Judgment (SOJ) in the Quality Review (QR) Process

The title of this POMS section was revised to remove the "QR" acronym for Quality Review as this is not an acronym approved by OQR.

We retained much of the information in the existing Subsection A and added three bullets to describe when quality reviewers cite deficiencies.

We left this information as an introduction, but did not label it with a subsection letter.

We removed the reference to GN 04440.119D, because this POMS is being archived. The information from this archived section is being incorporated into GN 04440.118.

We moved the other hyperlinked references to Subsection F of this POMS.

In Subsection A, we:

Changed the title to "Defining SOJ".

Created a new first paragraph and bolded the entire second sentence to add emphasis to the information.

Added quality reviewer, regional office medical contractors (ROMCs, and medical advisors to identify the individuals for whom SOJ may be an issue.

Added a lead in title for the SOJ example and bolded the title.

Added a detailed example to better illustrate the concept of SOJ.

Used italics throughout the example to make it stand out and to help the reader easily see where it started and stopped.

In Subsection B, we:

We revised and reordered sentences in the first paragraph to add clarity.

In Subsection C, we:

Incorporated information from the existing GN 04440.119B., Determining Whether Substitution of Judgment (SOJ) is at Issue, into this new subsection, as GN 04440.119 is being archived.

Titled this subsection "Recognizing SOJ", as this better reflects the content.

Made editorial changes and added clarifying language and examples to the bulleted points.

Added the sentence, "Any material change to the assessment of severity or determination, or change that necessitates additional development by the adjudicating component, represents SOJ", to the last paragraph to improve clarity.

Bolded the first word "Any" in the sentence shown above to add emphasis.

In Subsection D, we:

Titled the subsection "When SOJ may be an issue".

Incorporated the information from Subsection C. of GN 04440.119 into this subsection, as GN 04440.119 is being archived at publication.

Added an example to improve clarity.

Corrected minor grammatical issues in this Subsection.

In Subsection E, we:

Titled the subsection "When SOJ is not an issue".

Incorporated the information from Subsection D. of GN 04440.119 into this Subsection, as GN 04440.119 is being archived at publication.

Added the titles of the POMS sections referenced in the first paragraph to better identify which POMS applied to group I and group II decisional deficiencies.

Removed the word "clearly" from two of the four items in the bulleted list as "clearly" is a subjective term that cannot be precisely defined.

Added a "CAUTION" to the end of this subsection to highlight and emphasize information regarding inadequate or missing determination rationales.

Added clarifying verbiage throughout the subsection to enhance clarity and corrected minor grammatical issues.

In Subsection F, we:

Titled the subsection "References".

Moved the additional hyperlinked and bulleted POMS references that are currently in Subsection A. of GN 04440.118 to this subsection.

We removed the phrase, "medical consultant's and psychological consultant's" from the second bulleted POMS reference, as "consultant" has been replaced by "contractor". We replaced it with "ROMC", which was previously defined in this POMS.

 

GN 04440.119 Determining Whether Substitution of Judgment (SOJ) is at Issue

We have requested that this POMS, in it's entirety, be archived at publication. The information in this POMS has been incorporated into GN 04440.118, as outlined above.

 

GN 04440.118 Substitution of Judgment (SOJ) in the Quality Review Process

Federal quality reviewers assess the conformance of disability determinations to the Social Security Administration's (SSA's) regulations, rulings, Program Operations Manual System (POMS) policy and instructions, and to the documented facts in the case.

Federal quality reviewers cite deficiencies when:

  • the adjudicating component's disability determination is inconsistent with the evidence,

  • the evidence is insufficient to support a policy compliant determination, or

  • the determination does not meet a specific procedural or technical policy requirement.

A. Defining SOJ

Sometimes, adjudicating and reviewing components reach different disability determinations, in a case that is fully documented per policy, after considering the same facts and evidence. In the absence of any of the three issues listed above, a differing opinion and/or disability determination from a quality reviewer, regional office medical contractor (ROMC), or medical advisor is SOJ and is contrary to SSA policy.

Example of SOJ

An adjudicating component requested medical evidence, followed up with all of the claimant's treating sources per policy guidelines, obtained a complete vocational history, and obtained functional information from the claimant and a third party. The case is fully documented in accordance with SSA policy.

The adjudicating component medical consultant reviewed all of the evidence in the file and determined the claimant retained the physical capacity to lift and carry 20 pounds occasionally and 10 pounds frequently and stand, walk, and sit 6 hours in an 8-hour workday. The adjudicating component medical consultant found no additional limitations and explained all supporting evidence findings on the residual functional capacity (RFC) form. This proposed assessment would result in an allowance.

The ROMC reviewed all of the evidence in the file and determined the claimant retained the physical capacity to lift and carry 50 pounds occasionally and 25 pounds frequently. The ROMC affirmed the capacities to stand, walk, and sit for 6 hours in an 8-hour workday. This proposed assessment would result in a denial.

The ROMC explained his or her findings, but did not indicate that the adjudicating component medical consultant overlooked material findings or evidence or misapplied any SSA policy. In other words, the ROMC did not provide any evidence or policy based reason not to accept the assessment proposed by the adjudicating component medical consultant.

The ROMC and the adjudicating component medical consultant used the same evidence to arrive at different RFC assessments and, ultimately, different disability determinations. This constitutes SOJ by the ROMC and is prohibited by SSA policy. In this example, the ROMC must accept the adjudicating component medical consultant assessment and affirm the proposed allowance.

B. Policy on SOJ

When the adjudicating component's disability determination is compliant with SSA policy, federal quality reviewers, ROMCs, and medical advisors must avoid SOJ. Federal quality reviewers will not cite group I or group II decisional deficiencies when SOJ is at issue.

The intent of the SOJ policy is to ensure that federal quality reviewers do not cite decisional deficiencies unless the adjudicating component has not followed specific policy or procedure or the evidence does not support the determination. Federal quality reviewers may only cite decisional deficiencies when the adjudicating component's proposed determination does not comply with disability program policy.

NOTE: 

The concept of SOJ applies only when determining whether a group I or group II decisional deficiency exists. SOJ does not apply when determining whether a documentation deficiency exists.

C. Recognizing SOJ

Federal quality reviewers should accept the adjudicating component's determination when all of the following are true:

  • The adjudicating component has documented the file according to current disability program policy (e.g., all impairments addressed, all evidence requested and followed up per policy, etc.).

  • The adjudicating component has provided a rationale explaining the determination.

  • Both the adjudicating and review component determinations or assessments are supported by the evidence in file and are policy compliant.

  • The review component, after considering all the documented facts, believes the evidence directs a different assessment and/or determination than that of the adjudicating component.

If all of the above factors are present, a federal quality reviewer would be substituting judgment by citing a group I or group II decisional deficiency. Any material change to the assessment of severity or determination, or change that necessitates additional development by the adjudicating component, represents SOJ.

D. When SOJ may be an issue

Before citing a group I or group II decisional deficiency, federal quality reviewers must be alert to the possibility of SOJ in a highly judgmental adjudicative issue, especially when disability program policy explicitly acknowledges that the issue is judgmental. For example, situations in which subtle differences in RFC (e.g., standing and walking reduced to four hours versus six hours) are material to the finding of disability or borderline age situations. (See DI 25015.006 (Borderline Age) for additional information.)

E. When SOJ is not an issue

Federal quality reviewers should cite a group I or group II decisional deficiency when any one of the following situations occur and the situation meets the criteria of one of the listed deficiencies in DI 30005.121 (Group I Decisional Deficiencies) or DI 30005.125 (Group II Period of Disability Decisional Deficiencies):

  • The adjudicating component's determination contradicts the evidence (e.g., the adjudicating component based their determination on an erroneous interpretation of a medical test or result, the determination is contrary to accepted medical knowledge, the evidence in file belongs to an individual other than the claimant, etc.).

  • The adjudicating component has misrepresented the evidence in the rationale for the determination.

  • The adjudicating component's determination does not comply with SSA policy, the adjudicator did not provide a rationale to explain the determination, and the review component reached a different conclusion that is supported by SSA policy.

CAUTION: 

Federal quality reviewers should not cite a deficiency and return a case to the adjudicating component, merely because the rationale for the determination is inadequate or missing. If the adjudicating component's rationale is inadequate or missing, and the determination is correct, the quality reviewer prepares a policy compliant rationale and does not return the case to the adjudicating component. If the adjudicating component's rationale is inadequate or missing, and the determination is not policy compliant, the quality reviewer will cite the appropriate deficiency and return the case to the adjudicating component for correction.

The federal quality reviewer's notification of deficiency to the adjudicating component must explain:

  • why the adjudicating component's determination does not comply with SSA policy and

  • why the reviewing component's determination or deficiency citation complies with SSA policy.

For both items listed above, the quality reviewer must include specific POMS references and citations.

F. References

For additional information regarding SOJ, see GN 04440.003K. (Explanation of Quality Review Terms).

For an explanation of SOJ and the ROMC review, see GN 04440.130B. (Medical Review Policy).


GN 04440 TN 72 - Federal Quality Review of Disability Determinations - 7/18/2019