Identification Number:
DI 28080 TN 4
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
Title:Due Process
Type:POMS Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part DI – Disability Insurance
Chapter 280 – Continuing Disability Review Cases
Subchapter 80 – Due Process
Transmittal No. 4, 09/15/2021

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 updated this POMS to follow plain language requirements. We did not change policy.

 

Summary of Changes

DI 28080.001 Due Process for Continuing Disability Review (CDR) Cases

We added (CDR) in the title.

We changed some wording to have consistency in the text.

 

DI 28080.005 Due Process Pre-determination Notification for Title II Continuing Disability Review (CDR) Cases

We added (CDR) in the title.

We capitalized "title" when referring to Title II or Title XVI.

We changed some wording to have consistency in the text.

 

DI 28080.010 Preparing a Title II Continuing Disability Review (CDR) Pre-determination Notice

We changed some wording to have consistency in the text.

We added (CDR) in the title.

 

DI 28080.015 Example Notice for a Title II Continuing Disability Review(CDR) Pre-determination

We changed the title of the section.

We added (CDR) in the title.

We changed some wording to have consistency in the text.

We changed the format of the section "The Information We have."

 

DI 28080.020 Providing a Pre-determination Notice to Auxiliaries for Title II and Concurrent Title II/Title XVI Continuing Disability Review (CDR) Cases

We added (CDR) in the title.

We changed some wording to have consistency in the text.

We capitalized "title" when referring to Title II or Title XVI.

Under the title, we added: "DDS has jurisdiction for providing advance notice to auxiliaries at the time of the CDR. The processing center (PC) has jurisdiction for subsequent or unprocessed auxiliary claims. For instructions, see DI 13005.065."

 

DI 28080.025 Providing Due Process Notification for Title XVI Only Continuing Disability Review (CDR) Cases

We added (CDR) in the title.

We changed "Claim" to "Cases" in the title.

We capitalized "title" when referring to Title II or Title XVI.

 

DI 28080.030 Due Process Requirements for Concurrent Title II/Title XVI Continuing Disability Review (CDR) Cases

We added (CDR) in the title.

We changed some wording to have consistency in the text.

We capitalized "title" when referring to Title II or Title XVI.

 

DI 28080.035 Due Process Requirements for Concurrent Title II/Title XVI Continuing Disability Review (CDR) Cases

We added (CDR) in the title.

We changed some wording to have consistency in the text.

We capitalized "title" when referring to Title II or Title XVI.

 

DI 28080.045 Guidelines for Folder Documentation, Diary Controls, and Final Actions for Title II Continuing Disability Review (CDR) Pre-determination Notice

We added (CDR) in the title.

We changed some wording to have consistency in the text.

 

DI 28080.050 Due Process Requirements When the Disability Determination Services Receives Additional Evidence or Information

We changed some wording to have consistency in the text.

 

DI 28080.055 Individual Alleges Improper or No Due Process

We changed "Beneficiary" to "Individual".

We changed some wording to have consistency in the text.

 

DI 28080.065 Continuing Disability Review (CDR) Cases with a Basis Change from Blind to Disabled

We added (CDR) in the title.

In the fourth bullet, we changed "beneficiaries" to "individuals"

We changed some wording to have consistency in the text.

 

DI 28080.110 Processing Medical Cessation Cases for Disability Determination Services (DDS)

We capitalized "title" when referring to Title II or Title XVI.

 

DI 28080.115 "301" and Extended Period of Eligibility Cases

We changed some wording to have consistency in the text.

DI 28080.001 Due Process for Continuing Disability Review (CDR) Cases

Citation: 20 CFR §§ 404.1595, 416.1331

A. What is due process?

The Fifth Amendment to the Constitution provides that no person shall be deprived of property interest without due process of law. Due process is giving the individual (and his or her representative payee, if any) an opportunity to offer rebuttal evidence and respond to the proposed adverse action before the adjudicator renders a final decision.

Specifically, due process requires that the adjudicator inform the individual that his or her benefits will stop or reduce (or an overpayment may result) if:

  • He or she is no longer disabled (cessation); or

  • He or she is no longer entitled or eligible to disability benefits or payments on the current application (adverse reopening); or

  • He or she receives erroneous payments after a determination of denial; or

  • The adjudicator changes the onset date to a later date; or

  • The adjudicator changes the cessation date to an earlier date.

B. Provide due process

Merely advising the individual that his or her benefits will stop because of the continuing disability review (CDR) does not satisfy due process requirements. The adjudicator must also inform the individual of his or her right to respond and provide rebuttal evidence and allow the individual an opportunity to provide that response before the adjudicator makes a cessation determination.

 

Extend due process to the individual in writing, and store a copy of the notice in the official case folder. Resolve any doubts regarding the need to provide due process in favor of providing it.

C. References

  • DI 27525.001 Due Process Notification for Adverse Reopenings

  • DI 27525.005 Providing a Due Process Pre-Determination Notice in Cases Involving Onset Change

  • DI 27525.010 Providing Due Process in Adverse Reopenings Involving Title XVI and Concurrent Title II/Title XVI Cases

  • DI 27540.025 Title II-Only Pre-determination Notice Previously Mailed – Final Decision Notice Instructions

  • DI 27540.030 Title XVI-Only – Goldberg/Kelly Payment Continuation Applies

  • DI 27540.035 Concurrent Title II/Title XVI – Statutory Benefit Continuation Does Not Apply

  • DI 28055.035 Due Process and Notice Requirements for DDS Impairment Severity Cases

DI 28080.005 Due Process Pre-determination Notification for Title II Continuing Disability Review (CDR) Cases

A. When Should the Disability Determination Services (DDS) Prepare a Pre-determination Notice?

1. Certain Title II Medical-Vocational Cessations

Prepare a pre-determination notice when the determination is a non-medical cessation and we do not require statutory benefit continuation (SBC) election language.

We require a pre-determination notice for Title II-only DDS cessations for:

  • Cessation based on failure to follow prescribed treatment (FTFPT);

  • Cessation because prior favorable determination obtained by fraud or similar fault (FSF); and

  • Medicare Qualified Government Employee (MQGE).

NOTE: Prepare and release a pre-determination notice prior to processing the SSA-833, Cessation or Continuance of Disability or Blindness Determination and Transmittal.

See DI 27525.001 Due Process Notification for Adverse Reopenings.

2. Certain Title II Medical Adverse Reopenings

Like CDRs, Title II medical adverse reopening cases usually require SBC election language in the notice of the revised determination. Some adverse reopenings, however, require a pre-determination due process notice instead of SBC language. Those reopenings include:

  • Revising a previously established onset to a later onset;

  • Revision to a denial for whereabouts unknown, when the case is not a CDR;

  • Revision to a denial for FTFPT; and

  • Revision to a denial for FSF.

 

B. When Should the DDS not Prepare a Pre-determination Notice?

Do not prepare a pre-determination notice if the individual has the right to elect statutory benefit continuation (SBC). SBC election applies in the following examples:

1. Title II Medical and Medical-Vocational Cessations

Most Title II medical and medical-vocational cessations (i.e., medical improvement) cases require that the cessation determination notice inform the individual of the right to elect SBC on appeal.

See Also:

DI 28095.105 Title II Medical Cessation Notices Chart

2. Title II Medical Adverse Reopenings

Title II medical adverse reopening cases that require SBC election language in the notice of the revised determination include revision from:

  • Allowance to denial;

  • Allowance to a closed period of disability;

  • Continuance to cessation; or,

  • Cessation to an earlier cessation date.

 

3. Individual Requested Termination of Benefits

We require SBC language even when the field office (FO) obtains a signed statement or an SSA-795, Statement of Claimant or Other Person, from the individual requesting that we stop his or her benefits and the DDS determines from the evidence that the disability ceased (see DI 28080.005C.1. in this section).

4. Cessation Notice Requires SBC Election Language

For medical cessation cases that require SBC election language in the cessation notice, combine the pre-determination and cessation determination information into a single notice. Prepare and process SBC cessation (i.e., medical cessation) notices in accordance with NL 00705.358.

C. Process an Individual's Report Stating that he or she is no Longer Disabled

A direct report from an individual informing the FO that he or she is working or is no longer disabled does not serve as a basis for immediate cessation and termination of benefits without the issuance of a proper pre-determination notice.

The adjudicator will prepare a pre-determination notice, unless the individual signed a statement requesting that SSA stop benefits at the time he or she made the report of no longer being disabled. If the individual signed such a statement, process these cases in accordance with DI 28080.005C.1. and DI 28080.005C.2. in this section.

1. Individual Receives Title II Only

a. FO Actions

  • Obtain a signed statement or an SSA-795 from the individual reporting that he or she is no longer disabled and he or she requests that SSA stop his or her benefits.

  • File this statement in the official case folder. For instructions on faxing documents into the certified electronic folder, see DI 81010.090C.

b. DDS Actions

  • If the FO provided the signed SSA-795 in DI 28080.005C.1.a., the adjudicator will process the cessation without sending a pre-determination notice; and

  • The adjudicator will send a final cessation notice explaining the determination and appeal rights, including SBC election language, for these cases.

NOTE:In order for this due process exception to apply, the individual's signed request to stop benefits, in addition to his or her report of medical improvement or report of work activity must be in the official case folder.

2. Individual Receives Title XVI Only or Concurrent Title II/Title XVI

When processing determinations for a common issue concurrent for Title II/Title XVI case, the due process requirements for Title XVI also apply to the Title II. See DI 28080.030.

Goldberg/Kelly automatic payment continuation applies for Title XVI and current Title II/Title XVI cessations based on failure to follow prescribed treatment and fraud or similar fault.

The adjudicator will prepare a final cessation notice (rather than a pre-determination notice) before terminating Title XVI only or concurrent Title II/Title XVI disability benefits or payments, except where there has been confirmation of the individual's death.

 

DI 28080.010 Prepare a Title II Continuing Disability Review (CDR) Pre-determination Notice

A. Content of the Pre-determination Notice

1. Legal Requirements and Processing

The written pre-determination notice must include specific information to be valid, including a brief and non-technical description of the evidence on which the adjudicator based the proposed adverse action. The Disability Determination Services (DDS) must:

  • Inform the individual in writing (by mail) of the proposed adverse action (i.e., cessation). Contact with the wage earner provides advance notice for all auxiliaries (i.e., family members entitled on the individual's Social Security number) who are living with him or her; therefore, we do not require a separate notice for auxiliaries who are living with the individual.. To inform auxiliaries not living with the individual, see DI 28080.020.

  • Prepare a notice addressing each of the elements described in DI 28080.010B. in this section.

  • Give the individual 10 days from date of the notice, plus five days for mailing time to respond in writing. If the individual wishes to obtain and submit additional evidence that may be material in support of his or her case, grant an additional 10 days to present the evidence.

    NOTE: Do not follow up with an individual who fails to respond within the second 10-day period. However, there may be unusual circumstances that require the DDS to extend the response time beyond the second 10-day period. These instances should be rare and granted only when, in the adjudicator's judgment, reasonable circumstances precluded the individual from obtaining the evidence (e.g., the doctor is out of town for an extended period).

  • Do not process a cessation determination before the 15 days expire, unless you receive a written statement from the individual that he or she is not submitting any additional evidence. If this situation occurs, place the individual's statement in file and process the cessation determination immediately.

2. References

  • DI 27540.025 Title II-Only Pre-determination Notice Previously Mailed – Final Decision Notice Instructions

  • DI 40515.020 Due Process Notification in Title II and Title XVI Cases

B. Pre-determination Notice Elements

1. Preparation of the Pre-determination Notice

The adjudicator will prepare the pre-determination notice and follow these instructions:.

  • Send a copy of the letter to the individual's appointed representative and representative payee, if the individual has one.

  • Refer to the notice language in DI 28080.015 as an additional guide to ensure that DDS provides adequate due process before making an adverse determination (i.e., cessation).

NOTE: A representative payee who is not the legal guardian of an incompetent adult is entitled to receive the same pre-determination notice as the individual. DDS must send a modified copy of cessation notices to the representative payee (see DI 28095.040A.).

2. Address the Pre-determination Elements

The adjudicator must address each of the elements in the following list in every pre-determination notice:

  1. a. 

    Tell the individual that the DDS assists the Social Security Administration in reviewing his or her case to determine whether he or she is unable to engage in substantial gainful activity (SGA) because of a medical impairment.

  2. b. 

    Notify the individual that based on evidence now in his or her file, it appears that the DDS must make a determination whether he or she has the ability to engage in SGA as of (month and year).

  3. c. 

    List evidence sources considered in making the most recent favorable medical determination or decision (i.e., comparison point decision ).

    • Identify medical sources by name and date.

    • Identify non-medical sources (e.g., school guidance counselors, welfare departments, vocational rehabilitation agencies, day treatment facilities, sheltered workshops, social workers, and third party lay evidence) as evidence sources, but do not identify by an individual’s name.

    • Identify non-medical sources by position and organization, (e.g., Vocational Rehabilitation Counselor, Department of Rehabilitation Services, report of MM/DD/YYYY).

    • Identify third party lay evidence (e.g., family members, neighbors, coworkers) under the list of reports using the following statement: “Information from other people who know about your health.” If the lay evidence is the only evidence, omit the word “other.”

    • List reports in paragraph form if saving space becomes a consideration, or if you used more than three reports.

  4. d. 

    Include a brief statement describing the basis for the most recent favorable medical determination or decision and the reason for the current medical review.

  5. e. 

    List evidence sources considered for purposes of the continuing disability review (CDR).

  6. f. 

    Provide a brief statement outlining the reasons that the individual gave for believing that he or she is still disabled, and whether or not he or she is engaging in SGA.

  7. g. 

    State the basis for the cessation determination. Include the appropriate decision paragraph from NL 00708.100.

  8. h. 

    Discuss the findings of the CDR process.

    • Describe current medical severity.

    • Discuss medical improvement (MI) or exceptions to the MI standard and functional capacity (ability to work).

    • Provide a brief statement, if appropriate, outlining the past job the individual can do; or a statement that, although the individual cannot do past work, considering age, education, and past work experience, he or she has the capacity to do other kinds of work requiring less physical or mental demands.

  9. i. 

    Explain that DDS is writing to give the individual an opportunity to respond and present any additional evidence for the adjudicator's consideration if the individual continues to believe he or she is still unable to work because of the impairment.

    NOTE: Explain that he or she must mail any additional evidence to the DDS; show the DDS address. (DDS may include the name and phone number of the individual to contact at the DDS and enclose an envelope with the DDS's return address.)

  10. j. 

    Indicate that the DDS will make a cessation determination, unless the adjudicator hears from the individual within 10 days from date of the notice. Stress the importance to the individual to let DDS know within 10 days if he or she wants to submit a statement or evidence or if he or she needs more time to submit it.

  11. k. 

    Explain that when DDS makes a cessation determination, the adjudicator notifies the individual and auxiliaries, if applicable, in writing whether DDS still considers the impairment(s) disabling. Also, advise him or her that if the impairment is not disabling, he or she will be eligible to receive benefits for the month that the impairment severity ceased and for the following two months.

    However, in an Extended Period of Eligibility (EPE) case (DI 28055.000), disability might have ceased previously because of SGA and the person received benefits for the month of cessation and the following two months. If this situation is the case, advise the individual that any benefits he or she receives will end with the month that the impairment is not disabling.

    NOTE: In suspended prisoner or inmate cases, delete language concerning receipt of benefits or payments. When SSA suspends payments due to confinement, and disability ceases, modify the notice to explain that the “period of disability” will exist for the current month and the following two months. See GN 02607.000, Prisoner Provisions Title II.

    If a Title II prisoner case ceased because DDS cannot consider the original impairment disabling, the adjudicator will incorporate the message in Rider W. See NL 00705.540, Prisoner Model Letter “W” – Felony and Non-Felony Related Impairments – DIB, CDB, DWB.

3. References

  • DI 23501.025 Prisoner Notice Finder Chart

  • NL 00705.540 Prisoner Model Letter “W” – Felony and Non-Felony-Related Impairments – DIB, CDB, DWB

DI 28080.015 Example of Notice for a Title II Continuing Disability Review (CDR) Pre-determination

SSA reviewed your record to see if you are still entitled for Social Security disability insurance benefits. To get benefits, you must be unable to do any substantial gainful activity (SGA). Substantial gainful activity is physical or mental work you can do for pay or profit. It can be full-time or part-time work.

A State agency, Disability Determination Services (DDS), rather than the persons or agencies that gave us reports, made this determination. Based on the information in file, DDS plans to decide that you are no longer disabled and can do SGA starting in (date). You will be entitled to receive benefits for (date) and for the next 2 months.

 

What You Should Do

 

Please write to us within 10 days if you have more information that you want us to consider. You can write to us at this address: DDS Name, Street, City and State, Zip Code

 

If We Do Not Hear From You

 

If we do not hear from you within 10 days, we will make our determination about your disability benefits based on the information we have. We will send you another letter when we make our final decision.

 

The Information We Have

 

We considered the following reports in addition to the evidence you gave us when you first filed for benefits:

  • Sawyer Memorial Hospital, report of hospitalization 01/10/2018 to 02/06/2018; outpatient records of 03/03/2018 to 06/17/2018.

  • Greg Sweeney, M.D., report of 07/05/2018.

  • Dr. Michael Parker, report of 05/10/2018 for period 10/12/2015 to 05/10/2018.

The information showed (1).

(1) Include a brief statement describing the basis for the most recent favorable medical determination and the reason for the current review.

  • You say you still cannot work because (2).

    (2) Include a brief statement outlining the reasons the individual gave for believing he or she is still disabled and whether or not he or she is engaging in SGA.

 

  • Current reports show (3).

    (3) Describe current medical severity, medical improvement, or exceptions to the medical improvement review standard and ability to work.

 

  • Describe the work the individual can do. (4)

    (4) Include a brief statement, if appropriate, outlining the past job the individual can do, or a statement that although the individual cannot do past work, considering age, education, and past work experience, he or she has the capacity to do other kinds of work requiring less physical exertion.

 

If You Have Any Questions

 

Insert contact information including telephone number.

 

NOTE: In ceased prisoner cases, because we cannot consider the original impairment, the notice must include the Rider W message. See NL 00705.540, Prisoner Model Letter “W” – Felony and Non-Felony Related Impairments – DIB, CDB, DWB.

DI 28080.020 Provide a Pre-determination Notice to Auxiliaries for Title II and Concurrent Title II/Title XVI Continuing Disability Review (CDR) Cases

Disability Determination Services (DDS) has jurisdiction for providing advance notice to auxiliaries at the time of the CDR. The processing center (PC) has jurisdiction for subsequent or unprocessed auxiliary claims. For instructions, see DI 13005.065.

A. Guidelines for Pre-determination Notices to Auxiliaries

Before taking action, the adjudicator will provide auxiliaries advance notice of any proposed adverse action. Contact with the wage earner provides advance notice for all auxiliaries (i.e., family members entitled on the individual's social security number) who are living with him or her; therefore, SSA does not require a separate notice for auxiliaries who are living with the individual. If an auxiliary(ies) is not living with the individual, the adjudicator will take the steps below.

  • Send a pre-determination notice to the auxiliary(ies) whether the wage earner is a Title II only or a concurrent Title II/Title XVI individual.

  • Prepare a pre-determination notice to the auxiliary(ies) on Disability Determination Services (DDS) letterhead, or the appropriate Social Security Administration blank letterhead.

  • Provide due process to the auxiliary(ies), even if he or she is in suspense. Delete the information about “receipt of benefits” and “benefits being paid” if the auxiliary(ies) is not in pay status.

  • Prepare and release auxiliary(ies) notices at the same time you send a pre-determination notice to the wage earner. Obtain the address for the auxiliary(ies) from the official case folder (the field office should provide the DDS relevant auxiliary(ies) information). Follow the model language in DI 28080.020B.

  • Retain a copy of all auxiliary notices in the official case file.

NOTE: Only one notice is necessary for each auxiliary.

B. Pre-determination Example Notice to Auxiliary(ies)

We are writing to you about the benefits you are receiving on the record of (name of wage earner).

We reviewed (name of wage earner's ) record to see if (he or she) is still eligible for Social Security disability benefits. Based on the information we have, we plan to decide that (he or she) is no longer disabled and can do substantial gainful activity starting in (date ). We will stop all benefits on that record starting (date).

 

What You Should Do

 

Please write to us within 10 days if you have more information that you want us to consider. You can write to us at this address: DDS Name, Street, City and State, Zip Code.

 

If We Do Not Hear From You

 

If we do not hear from you within 10 days, we will make our determination about your disability benefits based on the information we have. We will send you another letter when we make our final determination.

 

Insert contact information including telephone number.

 

DI 28080.025 Provide Due Process Notification for Title XVI Only Continuing Disability Review (CDR) Cases

A. Provide Due Process

1. Medical Cessation

  • The Disability Determination Services (DDS) provides due process on Title XVI medical cessations (medical improvement determinations) under the statutory benefit continuation (SBC) provisions.

  • The cessation notice provides due process language in Title XVI only cases. Therefore, it is not required to send a pre-determination notice.

NOTE: In initial medical cessations, the reconsideration (pre-hearing) is the first level of appeal.

2. Failure to Cooperate (FTC) and Whereabouts Unknown (WU)

For procedures to follow for FTC and WU cases that arise during the CDR process, see DI 28075.005.

B. Statutory Benefit Continuation (SBC) vs. Goldberg/Kelly (GK) Automatic Payment Continuation

GK automatic payment continuation applies instead of SBC for issues of failure to follow prescribed treatment and fraud or similar fault. GK procedures do not apply to Title XVI WU cases because SSA considers WU (S06) an administrative suspension and does not result in a loss of eligibility.

C. References:

 

DI 28080.030 Due Process Requirements for Concurrent Title II/Title XVI Continuing Disability Review (CDR) Cases

A. Concurrent Title II/Title XVI CDR Cases

The Title XVI due process requirements described in DI 28080.025 apply to both the Title XVI and Title II portions of the concurrent case.

The Title II determination notice provides due process for both Title II and Title XVI when statutory benefit continuation (SBC) applies in a cessation determination.

B. Common Issue Determinations

When processing cessation determinations for a common issue concurrent Title II/Title XVI case, the due process requirements for the Title XVI case also apply to the Title II case. A reconsideration (pre-hearing) is the initial appeal step for both determinations. If the individual's request for appeal and SBC is within 10 days of receipt of the due process notice, payments are continued until the Disability Determination Services (DDS) hearing officer issues an appeals decision. Alternatively, the individual may waive SBC.

NOTE: In “common issue” cases, it is not necessary for the onset or ending dates in the two determinations to coincide. See DI 12045.005, Claims Under Different Titles – Common Issue – General.

C. Individual Receiving Title II Benefits is Ineligible for Title XVI Payments for a Non-disability Reason

The Title XVI due process provisions apply to concurrent Title II/Title XVI cases involving situations where SSA suspended the Title XVI payments for a non-disability reason, but Title II benefits continue to be paid.

  • The current status of the Title XVI payments at the time of the DDS query response determines concurrency for due process purposes. The SSI record (SSR) shows suspended Title XVI claims by non-payment status codes.

  • For concurrent Title II/Title XVI cessations, the DDS should obtain an SSI2 standard response query immediately prior to preparing the cessation notice. This second query is necessary since it is possible that the Title XVI payment status changed since the DDS obtained the query upon case receipt. For display of the SSI2 query format and an explanation of the various codes, see SM 01601.190.

  • Determine whether the individual receives Title II or Title XVI due process by examining both the Payment Status Code (PSY) field and the Denial Status (DS) field.

D. Title II Due Process Provisions

The Title II due process provisions in DI 28080.010 apply to the Title II claim when processing a Title XVI continuance concurrently with a Title II cessation, e.g., when a State plan criteria is the basis for the Title XVI determination of continuance.

 

DI 28080.035 Title XVI and Concurrent Title II/Title XVI Due Process Notice Content

Cessation determination notices in Title XVI and concurrent Title II/Title XVI cases must contain personalized information explaining the basis for the adverse action. (Refer to DI 28080.010B.2., items c. through h., for assistance in preparing the personalized notice.)

See NL 00708.000 for instructions for preparation of the cessation determination notices, including appropriate cessation determination paragraphs.

DI 28080.045 Guidelines for Folder Documentation, Diary Controls, and Final Actions for Title II Continuing Disability Review (CDR) Pre-determination Notice

 

A. Folder Documentation

The adjudicator will:

  • Place copies of all pre-determination notices in the official case folder.

  • Document all subsequent contacts with the individual or auxiliaries on an SSA-5002, Report of Contact, or similar document.

  • For electronic processing instructions, see DI 81010.090 and DI 81020.050.

B. Diary Controls and Final Actions

The adjudicator will:

  • Set appropriate diary controls and take action to finalize the determination.

  • Not process the case before 15 days (10 days, plus five days for mailing time) expires unless the adjudicator receives a written statement from the individual stating that he or she will not submit additional evidence.

  • Complete the determination if there is no response in 15 days. The DDS does not follow up with an individual who fails to respond to the letter.

  • Transfer electronic folders to the field office (FO) of record.

  • Send paper folders to the Office of Disability Operations (ODO) or the appropriate program service center (PSC). For CDR routing instructions, see DI 32010..001 through DI 32010.085.

C. Individual Requests More Time

  • If the individual responds with a request for more time to get additional evidence, the DDS may allow an additional 10 days. To verify that the individual is actively pursuing the evidence in question, the adjudicator will ask the individual for the nature of the evidence, identification of sources, etc.

  • The adjudicator will not follow up with an individual who fails to respond within the second 10-day period. However, there may be unusual circumstances that require the DDS to extend the response time beyond the second 10-day period.

    NOTE: These instances should be rare and granted only when, in the adjudicator's judgment, reasonable circumstances precluded the individual from obtaining the evidence (e.g., the doctor is out of town for an extended period).

  • If there is no response within the second 10 days, the adjudicator will complete the determination on the 25th day from the date of the original pre-determination notice to the individual.

 

DI 28080.050 Due Process Requirements When the Disability Determination Services Receives Additional Evidence or Information

A. Individual Provides Additional Information

The adjudicator will prepare a brief acknowledgement on either Disability Determination Services (DDS) letterhead or the appropriate blank SSA letterhead (use the same as the initial due process pre-determination letter). Include the following language:

“This letter acknowledges receipt of the additional information you sent to us. We will consider the new information along with the other evidence in your case to make a determination as to the date your disability began and if you are still disabled. When we make the continuance or cessation determination, we will notify you in writing.”

NOTE: Do not include any statement about the significance of the information received.

B. Individual Indicates he or she will not Submit Additional Evidence or Statement

The adjudicator will not process the case before the 15 days (10 days, plus 5 days for mailing time) expire unless DDS receives a written statement from the individual stating that he or she will not submit additional evidence. If this situation occurs, the adjudicator will place the statement in the official case folder and complete processing of the cessation immediately.

C. Individual's Response Results in a Change in Date of Cessation or Basis Code

If the individual's response changes the proposed cessation from one non-medical basis to another non-medical basis (e.g., whereabouts unknown to failure to follow prescribed treatment), the adjudicator will send a second pre-determination notice and diary for follow-up, etc. In such a case, the cessation date depends on the new non-medical basis for the cessation.

SSA does not require a second pre-determination notice when changing the cessation date to a date later than the date mentioned in the original pre-determination notice, provided that there is no change in the basis (e.g., blind to disabled).

 

DI 28080.055 Individual Alleges Improper or No Due Process

If the individual or his or her representative alleges that DDS did not give due process, or DDS gave it improperly, the adjudicator will review the case. If review of the case confirms the allegation, the field office (FO) reinstates benefits from the date of the original suspension or termination action. The individual remains in payment status pending the continuance or cessation determination on his or her case. For instructions on reinstating benefits when an individual alleges improper or no due process is the same for cessations and adverse reopening or revision, see DI 27525.020.

NOTE: Failure to reinstate benefits could result in a court action to redress a denial of the individual's rights. The Disability Determination Services (DDS) may also receive cases from the Social Security Administration central office for corrective action under this section.

DI 28080.065 Continuing Disability Review (CDR) Cases with a Basis Change from Blind to Disabled

A. Effect on Title II benefits

The Disability Determination Services (DDS) completes an SSA-833, Cessation or Continuance of Disability or Blindness Determination and Transmittal, to indicate:

  • The disability is continuing (Box 9A) because of the new impairment Box (21);

  • There is no change in status if it is determined an individual is no longer blind, but has an impairment which prevents substantial gainful activity (SGA);.

  • There is no change in the benefit payment amount; and

  • The change from “blind” to “disabled” could affect the individual's entitlement to disability benefits because of the lower SGA limit for non-blind beneficiaries.

B. Provide a Notice Explaining the Change

The adjudicator will notify the individual of this change by doing the following:

  • Modify the standard continuance notice to inform the individual that disability is continuing, but there is a change in the evaluation of his or her impairment. To advise the individual of our determination, use the standard notice SSA-L1013, in DI 13095.155;

  • Explain to the individual that he or she no longer meets the blindness provisions of the law, but he or she does meet the disability provisions and payments will continue; and

  • Explain to the individual that because he or she is no longer “blind,” we must now consider the SGA limit applicable to non-blind disability cases when evaluating any earnings.

EXAMPLE: “Based on the evidence in your case, you no longer meet the blindness rules. However, you do meet the disability rules and will continue to receive benefits. Since you no longer meet the blindness rules, we will apply the lower monthly earnings amounts in this notice to determine if you are engaging in substantial gainful activity.”

 

DI 28080.110 Process Medical Cessation Cases for Disability Determination Services (DDS)

 

A. Screen and Process

When the DDS receives a continuing disability review (CDR) case, the adjudicator will:

  • Screen the case to determine whether the CDR is Title II only, Title XVI only, or concurrent Title II/Title XVI, and obtain relevant queries if they are not already in file.

  • Adjudicate the case according to the CDR evaluation process, including consideration of medical improvement described in DI 28010.000.

B. Initial Cessations for Title II, Title XVI, or Concurrent Title II/Title XVI

When processing an initial cessation, the adjudicator will:

  1. 1. 

    Complete development and adjudication in accordance with existing CDR instructions in DI 28084.000, including preparation of the SSA-833 (Title II) and SSA-832 (Title XVI), Cessation or Continuance of Disability or Blindness Determination and Transmittal.

  2. 2. 

    Not input a cessation.

  3. 3. 

    Retain a copy of the SSA-833 and the SSA-832 in the official case folder.

  4. 4. 

    Prepare and release a personalized cessation notice, including both statutory benefit continuation (SBC) and appeal rights. For notice instructions, see DI 28095.040.

  5. 5. 

    Route the folder to the FO and include the remark “Title II (or Title XVI or Concurrent) Medical Cessation - SBC” since the cessation input has not been done.

  6. 6. 

    Input folder movement data before releasing the official case folder. For an explanation about processing CDR decisional data (continuance or cessation) and case movement information for Title II and Title XVI disability cases forwarded to the DDS for CDR, see SM 05901.001.

C. State Agency Operating Report (SAOR)

The DDS must adhere to established SAOR workload reporting and sampling procedures. It is essential that the individual receives the correct notice.

D. References

  • DI 28005.000, The CDR Evaluation Process – Table of Contents

  • SM 05901.000, Continuing Disability Review (CDR) Processing – Table of Contents

 

DI 28080.115 "301" and Extended Period of Eligibility Cases

A. "301" cases

1. Statutory Benefit Continuation (SBC)

SBC under P.L. 98-460 applies to medical cessations in which there may be a potential for continued benefits under Section 301 of P.L. 96-265 due to participation in a vocational rehabilitation (VR) or similar program. However, SBC is not applicable to an appeal of the "301" decision only.

In cases involving medical cessations, DDS offers election of SBC, even though benefits may continue under the section 301 provision.

2. Disability Determination Services (DDS) Actions:

  • For initial cessations (in lieu of a pre-determination) and reconsideration affirmations, the adjudicator prepares the personalized rationale on the SSA-4268, Explanation of Determination, following the instructions in DI 13010.180, and places it in the official case file.

  • The adjudicator prepares and releases the cessation notice with SBC rights to the wage earner and to any auxiliary(ies) not residing in the same household as the wage earner.

  • The DDS no longer develops “301” eligibility. The adjudicator returns all potential 301 cases to the field office (FO). The FO develops "301" eligibility, then forwards the case to the Office of Disability Operations. See DI 81020.250A.

NOTE: For the appeals process for section 301 cases, see DI 14510.035.

B. Extended Period of Eligibility (EPE) Cases

For special notice instructions for EPE cases, see DI 12027.040 and DI 28055.000. After completing the notice, the adjudicator will route the folder to the FO.

 


DI 28080 TN 4 - Due Process - 9/15/2021