Identification Number:
DI 23007 TN 2
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
Title:Failure to Cooperate
Type:POMS Transmittals
Program:Disability
Link To Reference:
 
DELAYED IMPLEMENTATION TRANSMITTAL (DIT)
DIT's ARE FOR FUTURE IMPLEMENTATION AND DISPLAYED
FOR INFORMATIONAL AND TRAINING PURPOSES ONLY

PROGRAM OPERATIONS MANUAL SYSTEM
Part DI – Disability Insurance
Chapter 230 – Special Issues
Subchapter 07 – Failure to Cooperate
Transmittal No. 2, 09/27/2019

Audience

DQB: DE, PA, PE, TL;
FO: CR TII, CR TXVI, CS, CSR, DRT, FR, OA, OS, RR;
PSC: CS, DE, DEC, DTE, IES;
ODD-DDS: ADJ, DHU;
OCO-OEIO: CR, ERE, FCR, FDE, RECONE;
RO: CDP;
OCO-ODO: DE, DEC, DS, RECONE;

Originating Component

ODP

Effective Date

11/04/2019

Background

This update reflect changes concerning the criteria and documentation an adjudicator needs to follow when he or she cannot obtain evidence from a claimant despite reasonable attempts to obtain the claimant’s cooperation. It also outlines the requirement to make a determination using the sequential evaluation process based on the evidence in the file, even when the adjudicator cannot obtain the claimant’s cooperation. This subchapter is a guide involving issues adjudicators may encounter when working with the issue of claimant cooperation and insufficient evidence.

Summary of Changes

DI 23007.001 Failure to Cooperate and Insufficient Evidence Definitions

We changed the title, reorganized, and rewrote the instructions in this section.

DI 23007.004 Refusal to Cooperate With Requests to the Claimant for Evidence or Action

We are archiving this section since we no longer have separate processes for refusal verses failure to cooperate.

DI 23007.005 Contacting the Claimant, Applicant, or Appointed Representative in Claims Involving Failure to Cooperate and Insufficient Evidence

We changed the title, reorganized, and rewrote the instructions in this section. The section explains who to contact in these types of claims, when to contact them, and how to document that contact.

DI 23007.009 Refusal to Attend a Consultative Examination (CE) Appointment

We are archiving this section since we no longer have separate processes for refusal verses failure to cooperate.

DI 23007.010 A Reasonable Effort to Identify and Involve a Third Party

We changed the title, reorganized, and rewrote the instructions in this section. This section discusses how to make a determination based on the evidence in file and stresses the importance of following the sequential evaluation process. It provides examples of necessary case analysis when making a determination based on the evidence in the file.

DI 23007.015 Making a Determination Based on the Evidence in the File

This new section discusses how to make a determination based on the evidence in file and stresses the importance of following the sequential evaluation process. It provides examples of necessary case analysis when making a determination based on the evidence in the file.

Conversion Table
Old POMS ReferenceNew POMS Reference
DI 23007.004Obsolete
DI 23007.005B; .005C; 005D,1.2.; .005D.3.; .005E,F,G; .005H DI 22505.014; DI 23007.001A; DI 23007.005; DI 23007.001A; DI 22505.014; DI 23007.015
DI 23007.009Obsolete
DI 23007.010DI 22510.016

DI 23007.001 Failure to Cooperate and Insufficient Evidence Definitions

CITATIONS:

20 CFR 404.1512 through 404.1519t , and 416.912 through 416.919t

This subchapter, Failure to Cooperate and Insufficient Evidence (FTC), describes what adjudicators must do when a claimant does not comply with an initial, written request for evidence or action, or an initial, written notice of a consultative examination (CE) appointment. The instructions apply to initial and reconsideration level claims.

  • See DI 22505.014 for when the claimant does not comply with an initial, written request for evidence or action.

  • See DI 22510.019 for when the claimant does not comply with an initial, written notice of a CE appointment.

This section provides definitions for terms used throughout the FTC subchapter.

A. Special handling

Claims require special handling if the claimant does not have an applicant filing on his or her behalf or an appointed representative, and at least one of the following applies:

  • Homelessness,

  • Illiteracy,

  • Limited English proficiency (LEP),

  • A severe medically determinable mental impairment --

    NOTE: Assume an alleged mental impairment to be a severe MDI unless you have evidence to the contrary. If you have such evidence, document it on a Psychiatric Review Technique Form (PRTF) SSA-2506-BK or SSA-416-UF Medical Evaluation and do not apply special handling procedures.

  • Under age 18,

  • Undergoing an age 18 redetermination, or

  • Aged out of foster care in the last two years (identified by case flag).

NOTE: 

You must make at least one attempt to identify and involve a third party before you stop attempting to get the cooperation of a claimant who requires special handling. Most claims will have a third party identified in Section 11 of the SSA-3368, Section 1.D. of the SSA-3441, or Section 2 of the SSA-454. If the FO has identified more than one third party, the information will be in section 11 of the SSA-3368, SSA-3441, or SSA-454. You must make a reasonable effort to involve the additional third party if the attempt with the other third party was not productive. For additional information on making a reasonable effort to identify and involve a third party, see DI 23007.010.

B. Good Reason

A good reason may include, but is not limited to, the following—

  • physical, mental, educational, and verbal limitations (including lack of proficiency with the English language),

  • personal illness,

  • death or serious illness in the family, or

  • other obstacles beyond the claimant's control.

C. Third Party

Someone you can contact to help the claimant with his or her claim.

Third party information is in Section 11 of the SSA-3368, Section 1.D. of the SSA-3441, or Section 2 of the SSA-454. Third party information is in Section 2 of the SSA-3368-BK Disability Report-Adult. The FO may provide additional third party information in Section 11 of the SSA-3368, SSA-3441, or SSA-454.

If there is FO documentation in file that the claimant refused to identify a third party contact, stop attempting to identify a third party (see, DI 11005.022B).

NOTE: Do not use third party contact information in prior folders or from prior appeal levels if the claimant refuses to identify a third party contact.

Examples of a third party may include, but are not limited to a:

  • relative,

  • friend,

  • member of religious or spiritual group,

  • labor union representative,

  • veterans group member, and

  • member of a senior citizens association.

D. Applicant

Anyone who has the right to sign a valid application on behalf of himself or herself, or on behalf of the claimant, see GN 00204.003.

E. Appointed Representative

An individual who meets the qualifications listed in GN 03910.020B or GN 03910.020B, and who the claimant appoints to act on his or her behalf in pursuing his or her claim or asserted rights before the Social Security Administration (SSA), see GN 03910.020.

DI 23007.005 Contacting the Claimant, Applicant, Appointed Representative, or Third Party in Claims Involving Failure to Cooperate and Insufficient Evidence

A. Who to contact when the claim does not require special handling

Contact (call or write) the:

  • claimant if the claimant does not have an applicant filing on his or her behalf, or appointed representative.

  • applicant if the claimant has an applicant but not an appointed representative.

  • appointed representative and claimant if the claimant has an appointed representative but not an applicant.

  • appointed representative and applicant if the claimant has both.

NOTE: Some appointed representatives ask you to communicate directly with the claimant or applicant for a specific issue. Comply with that request with one exception. If the claimant does not comply with your follow-up request for evidence or action, or attend the consultative examination (CE) appointment, first make a reasonable effort to contact the appointed representative and give the representative a reasonable amount of time to comply with your request. A reasonable effort to contact a representative is the same as a reasonable effort to involve a third party. See DI 23007.010. If the appointed representative does not contact you and assist with getting the claimant to submit the needed medical evidence or action, you may then stop trying to get the claimant to comply with your request.

REMEMBER: An adult claim that has an applicant or appointed representative does not require special handling, even if the claimant falls into one of the special handling categories.

B. Who to contact when the claim requires special handling

Contact (call or write) the claimant.

You may make a reasonable effort to involve a third party at any point in the process, but you may not discontinue attempting to develop evidence requiring the claimant's cooperation until you make a reasonable effort to identify and involve a third party. See DI 23007.010.

If the claimant does not comply with your follow-up request for evidence or action, or does not attend the CE appointment, make a reasonable effort to identify a third party if the FO has not identified a third party or has not indicated that the claimant would not identify a third party. If you identify a third party, contact him or her and attempt to get him or her to cooperate with your request. If you are not able to identify a third party, or if you identify but are unable to involve the third party, stop attempting to get the claimant to comply with your request or attend the CE appointment. If the field office (FO) has identified more than one third party in Section 11 of the SSA-3368, SSA-3441, or the SSA-454, you must make a reasonable effort to involve an additional third party if the attempt with the other third party was not productive. If the FO indicates the claimant refused to identify a third party, stop attempting to identify a third party.

See POMS DI 23007.001A for claims that require special handling. See POMS DI 23007.010 for how to make a reasonable effort to identify and involve a third party.

C. How to document your contact

1. If you speak to someone

If you speak to the claimant, applicant filing on his or her behalf, appointed representative, or third party, document the date and content of your conversation, and to whom you spoke, on an SSA-5002 Report of Contact, the Claim Communication section of the electronic claims analysis tool (eCAT), or the Disability Determination Services (DDS) summary worksheet.

2. If you leave a message

Document the date and content of your message, and with whom you left it, on an SSA-5002, the claims communication section of eCAT, or the DDS worksheet.

DI 23007.010 A Reasonable Effort to Identify and Involve a Third Party in Claims involving Failure to Cooperate and Insufficient Evidence

A. When must you make a reasonable effort to identify and involve a third party

Before you stop attempting to get the claimant to comply with your request, you must make a reasonable effort to identify and involve a third party when all the following apply—

  • the claim falls into a special handling category, see DI 23007.001A.,

  • the claimant does not have an applicant filing on his or her behalf, nor an appointed representative (Treat a child under age 18 as special handling even if the child has an applicant or appointed representative.),

  • the claimant has not already identified a third party on the current SSA-3368, SSA-3441, or SSA-454, and

  • the claimant has not complied with your follow-up request for evidence or action, see DI 22505.014, or does not attend or confirm a consultative examination (CE) appointment, see DI 22510.019.

B. Making a reasonable effort to identify a third party

If the claim requires special handling, the FO has not identified a third party and the claimant does not comply with your follow up request for evidence or action (see DI 22505.014), or does not attend a CE appointment (see DI 22510.019), contact the claimant once by telephone or letter to ask him or her to identify a third party.

If the claimant identifies a third party, make a reasonable effort to involve the third party in accordance with DI 23007.010C.

If there is FO documentation in file that the claimant refused to identify a third party, stop attempting to identify a third party (see, DI 11005.022B).

 

NOTE: 

You may ask a claimant that requires special handling to identify a third party at the time you follow up on an initial, written request for evidence or action, or when you attempt to confirm the claimant’s attendance at a scheduled CE appointment (if you choose to do so). See DI 22510.019.

1. If you contact the claimant by telephone

Claimant contact by telephone means you either:

  • speak to the claimant, or

  • leave a message.

NOTE: 

If you do not speak to the claimant, and you cannot leave a message, you must contact the claimant once by letter.

a. You speak to the claimant

Ask for the name and contact information of a third party. If the claimant asks for more time to provide this information, give him or her 10 additional calendar days from the date of your telephone call.

Document the date, time, and content of your conversation with the claimant on an SSA-5002 Report of Contact, the claim communication section of the electronic claims analysis tool (eCAT), or the Disability Determination Services (DDS) worksheet.

b. You leave a message

You may leave a message on the voicemail recording system of a telephone number in the claim file that is attributable to the claimant. You may also leave a message with an adult who answers a telephone number in the claim file that is attributable to the claimant (e.g., the claimant’s spouse).

Include the following:

  • Your contact information and date that you called. Do not disclose any unnecessary personal information about the claimant (see the policy of minimization in GN 03316.005D),

  • A request that the claimant provide the name and contact information of a third party,

  • A request that the claimant return your call within 10 calendar days of the date of your message with the information, and

  • An explanation that failure to provide the requested information may result in you having to make a determination based on the evidence in file, which may result in you finding that the claimant is not disabled.

c. You send a letter to the claimant

Include the following—

  • Your contact information and date of your letter,

  • A request that the claimant call you within 10 calendar days of the date of your letter with the name and contact information of a third party, and

  • An explanation that failure to provide the requested information may result in you having to make a determination based on the evidence in file, which may result in a finding that the claimant is not disabled.

C. Making a reasonable effort to involve a third party

You make a reasonable effort to involve a third party by contacting him or her by telephone or letter. This is true even if the third party declines to assist the claimant or does not respond to your contact. Document any attempt to involve the third party by telephone on an SSA-5002, the claim communication section of eCAT, or the DDS summary worksheet. If the FO has identified more than one third party in Section 11 of the SSA-3368, SSA-3441, or SSA-454, you must make a reasonable effort to involve the additional third party if the attempt with the other third party was not productive.

NOTE: 

How you contact the third party may depend on the information you have. For example, you would contact a third party by telephone if you only had his or her telephone number. Likewise, you would contact a third party by mail if you only had his or her mailing address. Do not attempt to look up a third party’s telephone number or mailing address in a telephone book or on the computer unless the third party is a professional at a particular location (e.g., a social worker at a specific clinic).

1. You contact the third party by telephone

Contacting the third party by telephone means you either:

  • speak to the third party, or

  • leave a message.

NOTE: 

If you do not speak to the third party, and you cannot leave a message, you must contact the third party once by letter.

a. You speak to the third party

Do the following during the conversation:

  • State your contact information.

  • Explain that the claimant told you that you could contact the third party for assistance with the claimant’s disability claim, and

  • Explain that the claimant did not:

    • comply with your initial, written request, or follow-up request, for evidence or action, or

    • attend the CE appointment that you scheduled,

  • If the claimant did not comply with your requests for evidence or action, identify the evidence or action that you need. If the third party provides a good reason for giving the claimant more time to comply with your request, give the claimant 10 additional days from the date of your telephone call.

  • If the claimant did not attend the CE appointment that you scheduled, explain the CE process and the claimant’s need to attend. If the third party provides a good reason for rescheduling the CE appointment, do so.

  • Explain to the third party that if the claimant does not comply with your requests for evidence or action, or attend the CE appointment, you may have to make a determination based on the evidence in file, which may result in a finding that the claimant is not disabled.

Document the date and content of your conversation with the third party, on an SSA-5002, the claim communication section of eCAT, or the DDS summary worksheet.

b. You leave a message for the third party

You may leave a message on the voicemail recording system of a telephone number in the claim file that is attributable to the third party. You may also leave a message with an adult who answers a telephone number in the claim file that is attributable to the third party (e.g., the third party’s spouse). Include the following—

  • Your contact information, and date that you called. Do not disclose any unnecessary personal information about the claimant (see the minimization policy in GN 03316.005D),

  • Explain that the claimant told you that you could contact the third party for assistance with the claimant’s disability claim,

  • Explain that the claimant did not:

    • comply with your initial, written request, or follow-up request, for evidence or action,

    • did not confirm the CE appointment,

    • needs assistance getting to a CE appointment, or

    • did not attend the CE appointment that you scheduled,

  • If you need evidence or action, identify that evidence or action,

  • If you need the claimant to attend a CE appointment, explain the CE process and the claimant’s need to attend,

  • Request that the third party return your telephone call within 10 calendar days of the date of your message, and

  • Explain to the third party that if the claimant does not comply with your requests for evidence or action, or attend the CE appointment, you may have to make a determination based on the evidence in file, which may result in you finding that the claimant is not disabled.

2. You send a letter to the third party

Include the following:

  • Your contact information. Do not disclose any unnecessary personal information about the claimant (see the minimization policy in GN 03316.005D). An explanation that the claimant told you that you could contact the third party for assistance with the claimant’s disability claim,

  • An explanation that the claimant did not:

    • comply with your initial, written request, or follow-up request, for evidence or action, or

    • attend the CE appointment that you scheduled,

  • If you need evidence or action, identify that evidence or action,

  • If you need the claimant to attend or confirm a CE appointment, explain the CE process and the claimant’s need to attend,

  • A request that the third party call you within 10 calendar days of the date of your letter, and

  • An explanation that if the claimant does not comply with your requests for evidence or action, or attend the CE appointment, you may have to make a determination based on the evidence in file, which may result in you finding that the claimant is not disabled.

DI 23007.015 Making a Determination Based on the Evidence in the File

A. When to make a determination based on the evidence in the file

When you have made a reasonable, but unsuccessful effort to obtain the claimant’s cooperation to comply with a request for evidence or action, or to confirm or attend a consultative examination (CE) appointment, make a determination using the sequential evaluation process based on the evidence in the file.

B. Actions to take before making a determination using the sequential evaluation process based on the evidence in the file

Before making a determination using the sequential evaluation process based on the evidence in the file, take the following actions to the extent that they do not require claimant cooperation:

  • Follow up on overdue medical evidence, as explained in DI 22505.001A.

  • Develop a complete medical history including any potential medical sources identified in the file since the claimant’s application for disability benefits, as defined in DI 22505.001A. And,

  • Develop supplemental evidence, as required by DI 22505.008.

NOTE: 

For continuing disability reviews (CDR), also see DI 28030.020.

IMPORTANT: 

Once you have made a reasonable, but unsuccessful effort to obtain the claimant’s cooperation, you do not have to contact the claimant to update potential sources of evidence. Instead, make a reasonable effort to obtain a complete medical history based on the sources of evidence already in the file.

C. Using the sequential evaluation process to make a determination based on the evidence in the file

Make a determination using the sequential evaluation process based on the evidence in the file (see, DI 22001.001).

Consider each step in this process in numerical order except where policy specifically permits a deviation:

  • Step 2 – If there is insufficient evidence to establish a severe, medically determinable impairment (MDI), find the claimant not disabled.

  • Step 3 – If there is insufficient evidence to establish that the claimant meets or equals a listed impairment, assess the claimant’s residual functional capacity (RFC).

  • RFC – Only impose limitations supported by the evidence in the file. If the evidence does not support any limitations, do not assess any. The consultant must indicate in the RFC that the evidence in the file is insufficient to rate limitations on a particular impairment, symptoms, or alleged limitations because the evidence necessary for a full medical evaluation is not available.

  • Step 4 – If there is insufficient evidence to determine whether the claimant can perform his or her past relevant work (PRW), adjudicate the claim in accordance with DI 25005.005C.

  • Step 5 – If there is insufficient evidence to make a step 5 determination, find the claimant not disabled due to insufficient evidence.

For evaluating title XVI claims for children under age 18, see DI 25205.020. For evaluating continuing disability reviews (CDR), see DI 28075.005.

IMPORTANT: 

: You may make a fully favorable determination at any point during development, see DI 24505.030E for more information. You can make a partially favorable determination only after you have made a reasonable effort to develop the claimant’s complete medical history without his or her cooperation.

D. What regulation basis code should you use

Any time the claimant has not cooperated with providing evidence, taking an action, or attending a consultative examination and that evidence has the potential to change the determination, use the “Insufficient Evidence Furnished” regulation basis code in accordance with DI 26510.045. Do not use a failure or refusal to attend a CE regulation basis code.

Use the “Insufficient Evidence Furnished” Personalized Disability Explanation (PDE) language, do not use Failure or Refusal to Attend a Consultative Examination PDE. For instructions on the personalized disability explanation, see DI 26530.020D.

E. Examples

Example one: Insufficient evidence to establish a severe, medically determinable impairment.

Claimant is 57 years old with a high school education (no issues with communicating in English) and past relevant work (PRW) as a cashier. He alleges disability due to carpal tunnel syndrome (CTS). Development of a complete medical history includes a diagnosis of CTS in the file, but no Tinel’s or Phelan’s tests and no electromyography (EMG) or Nerve Condition Study. Additionally there is no description of the claimant’s ability to handle or finger objects, nor is there any evidence regarding treatment for CTS. In his activities of daily living (ADLS), the claimant indicates that he has problems opining jars due to his CTS.

The DDS orders a consultative exam for a Tinel’s and or Phelan’s test, graded grip strength, and a description of his fingering abilities. The claimant misses his scheduled exam despite calling the DDS to tell them he will attend. The DDS documents how they processed the available evidence through the sequential evaluation process. The claimant is not performing SGA. There is no severe, medically determinable impairment (MDI) established by the evidence.

The DDS writes the case as a failure to cooperate insufficient evidence denial . The DDS will use an insufficient evidence regulation basis code (RBC) and personalized disability explanation (PDE) because the claimant did not cooperate with the development process and evidence available without the claimant’s cooperation is consistent with a denial for no severe MDI. The insufficient RBC and PDE are appropriate because had the claimant cooperated, the determination might have been different.

Example two: Insufficient evidence to evaluate one of the claimant’s alleged impairments

The case facts are the same as example one with the exception of an additional allegation of back problems. The claimant has back pain when flexing his spine beyond 70 degrees. On most visits, he has palpable muscle spasm in the low back. He has negative straight-leg-raising (SLR) tests bilaterally. X-rays show severe narrowing at L5-S1 and mild degenerative changes throughout the lumbar spine.

The DDS orders a consultative examination for graded strength of lower extremities, a gain description, Tinel’s and or Phelan’s tests, graded grip strength, and a description of fine fingering abilities. The claimant misses his scheduled examination despite calling the DDS to tell them he will attend. Medical evidence of record (MER) establishes that the claimant’s back impairment is a severe MDI that does not meet or equal a listing, however, the evidence is insufficient to assess whether CTS is an MDI.

Because the claimant has a severe impairment that does not meet or equal a listed impairment, the adjudicative team must assess an RFC using the evidence available without the claimant’s cooperation. The consultant must indicate in the RFC that the evidence in file is insufficient to rate limitations on a particular impairment, symptoms, or alleged limitations, because the evidence necessary for a full medical evaluation is not available due to the claimant’s failure to cooperate. The medical consultant adds this statement regarding the claimant’s CTS and assesses an RFC for light work with occasional postural limitations.

The DDS documents how they processed the evidence available without the claimant’s cooperation through the sequential evaluation process. The claimant is not performing SGA. He has a severe MDI of degenerative changes in the lumbar spine. He has a diagnosis of CTS, but there is nothing in the record to support an MDI of CTS. His impairments do not meet or equal a listed impairment. An RFC for light work with occasional postural limitations is consistent with ability to perform his PRW as he described it. The insufficient evidence RBC and PDE are appropriate because had the claimant cooperated, the determination might have been different.

Example three: Insufficient evidence to evaluate with the claimant can perform Past Relevant Work (PRW)—expedite applies

All case facts are the same as example two except that the claimant is 50 years old and did not return his SSA-3369, despite follow-ups.

The claimant lists his PRW as cashier on the SSA-3368, but did not provide any description of the requirements of his work, nor did he provide evidence we would need to determine if his work was relevant. The claimant additionally missed his scheduled consultative examination.

MER establishes that the claimant’s back impairment is a severe MDI that does not meet or equal a listing, however, the evidence is insufficient to assess whether CTS is an MDI. Because the claimant has a severe impairment that does not meet or equal a listed impairment, the adjudicative team must assess an RFC using the evidence available without the claimant’s cooperation. The consultant must indicate in the RFC that the evidence in file is insufficient to rate limitations on a particular impairment, symptoms, or alleged limitations because the evidence necessary for a full medical evaluation is not available due to the claimant’s failure to cooperate. The consultant indicates this in the RFC regarding the claimant’s CTS and assesses an RFC for light work with occasional postural limitations.

The DDS documents how they processed the evidence available without the claimant’s cooperation through the sequential evaluation process. The claimant is not performing SGA. He has a severe MDI of degenerative changes of the lumbar spine. He has a diagnosis of CTS, but there is nothing in the record to support an MDI of CTS. His impairments do not meet or equal a listed impairment. We cannot determine if he can do any past relevant work. At age 50, with a light RFC and a high school education (no issues with communicating in English) all potentially applicable light rules would result in a denial, therefore, the expedite process would apply.

The DDS writes the case as a failure to cooperate insufficient evidence denial. The DDS will use an insufficient evidence RBC and PDE because the claimant did not cooperate with the development process and additional evidence about the claimant’s CTS had he cooperated, the determination might have been different.



DI 23007 TN 2 - Failure to Cooperate - 11/04/2019