Effective Dates: 10/22/2024 - Present

Identification Number:
DI 28020 TN 48
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
Title:Exceptions to Medical Improvement
Type:POMS Full Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM

Part DI – Disability Insurance

Chapter 280 – Continuing Disability Review Cases

Subchapter 20 – Exceptions to Medical Improvement

Transmittal No. 48, 10/22/2024

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 transmittal incorporates IRD comments and additional instructions for scenarios involving CDR cases where an individual has worked during a current period of entitlement or eligibility based on disability.

Summary of Changes

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

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    Subsection A:

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      Added clarification about the different portions of the advances in medical or vocational therapy or technology exception.

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      Added clarifying text about the situation when the exception applies

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      Updated the titles of the sections referenced

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    Subsection C:

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      Revised the title and subsection content specific to the advances in medical therapy or technology exception

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    Subsection D:

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      Content is specific to the advances in vocational therapy or technology exception

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      D1 revised the content that provides guidance on referrals to the regional office to simplify procedures

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      D2 provides information about evaluating activities performed in a program with advances in vocational therapy or technology, including if work for pay or profit is involved in the program

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    Subsection E:

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      E1 provides exclusions to the advances in medical therapy or technology exception

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      E2 provides exclusions to the advances in vocational therapy or technology exception

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    Subsection F:

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      Revised language in the example for clarity and to expand instructions about application in the evaluation process

DI 28020.150 Group I Exception - Vocational Therapy

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    Subsection A:

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      Revised text for clarity

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    Subsection B:

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      Revised the text for consistency with regulations

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    Subsection C:

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      C3 note contains information about considering function in a vocational therapy program, specifically addressing if the vocational program involved work for pay or profit and how this impacts application of the exception

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      C4 explains when to apply the vocational therapy exception and includes applicable closure coding instructions.

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    Subsection E:

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      Clarified information

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    Subsection F:

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      Updated example

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

CITATIONS:

20 CFR §404.1594(d)(1), 20 CFR §416.994(b)(3)(i)

A. Introduction to the advances in medical or vocational therapy or technology exception to medical improvement (MI)

Advances in medical or vocational therapy or technology are improvements in treatment or rehabilitative methods that have favorably affected the severity of the individual's impairment(s) or increased the individual’s ability to do basic work activities.

This exception applies when substantial evidence demonstrates that an individual has benefited from services that reflect advances in either medical or vocational therapy or technology. For the exception to apply, evidence must show the individual has benefited from medical advances or vocational advances, or both.

In many instances, an advanced medical therapy or technology will result in a decrease in impairment severity as shown by signs, symptoms, and laboratory findings. Therefore, in most situations when an individual received and benefited from advanced medical therapy or technology, the impairment(s) will improve and result in MI related to the ability to work at a step prior to this step 5 exception (e.g., MI at step 3 or MI related to the ability to work at step 4). Therefore, this exception will see very limited application.

For more information see instructions:

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    DI 28010.015 Comparison of Symptoms, Signs, and Laboratory Findings When Evaluating Medical Improvement (MI)

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    DI 28010.001 Definition and Overview of Medical Improvement (MI)

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    DI 28015.001 Context and Scope - Relating MI to Ability to Work

B. When the advances in medical or vocational therapy or technology exception applies

Consider this exception if all of the following criteria are satisfied:

  • •

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

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    evidence shows that the individual has benefited from services that reflect advances in medical or vocational therapy or technology; and

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    these advances have decreased the severity of the impairment(s) or increased the individual's is ability to do basic work activities.

C. How to apply the advances in medical therapy or technology exception

For the medical portion of this exception to apply, the therapy or technology must relate to the ability to work.

If the criteria in DI 28020.100B are met and the exception applies, provide a rationale in a SSA-5002 Report of Contact or a case note in the disability case processing system (DCPS) imaged to the disability determination explanation (DDE) explaining how and why the exception applies. After applying the exception, continue to the next appropriate step in the sequential evaluation process.

D. How to apply the advances in vocational therapy or technology exception

1. Procedure

Follow development and documentation procedures in DI 28020.150C.

When an individual is in a program with advances in vocational therapy or technology, the adjudicator will evaluate whether advances in vocational therapy or technology have favorably affected the severity of the individual's impairment(s) or their ability to do basic work activities.

If yes, apply the exception at step 5 of the adult continuing disability review (CDR) sequential evaluation process and proceed with the remaining steps in the sequential evaluation process.

If the evidence from the vocational therapy or technology does not indicate a favorable impact to the severity of the individual’s impairment(s) or their ability to complete basic work activities, do not apply the exception.

If it is unclear if the exception applies, the adjudicator must submit a detailed rationale and question to the Regional Office Center for Disability and Program Support to obtain guidance prior to applying the exception or processing a cessation. The rationale and question should outline information about the advanced vocational therapy or technology and why the adjudicator cannot determine if the exception applies (e.g., if there is a question about increased ability to complete basic work activities in the evidence received from the program).

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

If a cessation is supported after applying the exception and following sequential evaluation, enter cessation code “02” for a Title II case or “51” for a Title XVI CDR case in Item 11 of the SSA-832 or SSA-833, see DI 28084.015B.3.a.

2. Evaluating activities performed in a program with advances in vocational therapy or technology

The adjudicator may use evidence of the physical or mental activities performed in a program with advances in vocational therapy or technology to evaluate function, see DI 28020.100D.2.b.

Occasionally, a program with advances in vocational therapy or technology may include work that is done for pay or profit as an aspect of the program. For certain beneficiaries, if part of the vocational therapy or rehabilitation program involved work for pay or profit, the adjudicator will not be able to consider the physical or mental activities performed in that work when evaluating function as evidence whether disability has ceased. Specifically, if a beneficiary has received Title II benefits for at least 24 months, the adjudicator cannot consider activities the beneficiary performed in work for pay or profit during the current period of entitlement based on disability in order to find that disability has ceased.

If the activities performed in the program (or work performed as part of the program) are inconsistent with other evidence, follow the instructions in DI 24501.016C.

a. Participation in work for pay or profit during a program with advances in vocational therapy or technology

If the individual engaged in a program with advances in vocational therapy or technology during disability entitlement that involved work for pay or profit during the program (i.e., substantial gainful activity (SGA) as defined in DI 10501.001, regardless of SGA earning level), the table in this section indicates when the activities performed in the work during the program may or may not be used as evidence to evaluate function.

The adjudicator may, however, still consider physical or mental activities performed during the program with advances in vocational therapy or technology, but NOT the activities in actual work that was performed for pay or profit when evaluating function and impairment severity. An adjudicator can consider those activities to find an individual’s disability continues, however.

When to Consider Activities Performed in Work During a Current Period of Disability Entitlement

Current Entitlement

Activities Performed in Work Support Conclusion Disability May Have Ended

Activities Performed in Work Support Conclusion Disability Continues
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    Title II only or Title II/Title XVI concurrent beneficiary with disability entitlement period less than 24 months (DI 28030.026C.2.)

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    Title XVI only recipient (DI 28030.026D)*

    * Excludes Title XVI recipients currently eligible under 1619 or Title XVI recipients who have has been eligible under 1619 within the last 12 months, see DI 28075.600 and DI 28075.610.

 

Consider any activities the individual has performed in work for pay or profit during a current period of disability entitlement based on disability as evidence of function, along with medical and non-medical evidence.

Apply the advances in vocational therapy exception and continue to the next step in the CDR sequential evaluation process, see DI 28005.015A.6.

Consider any activities the individual has performed in work for pay or profit during a current period of entitlement based on disability as evidence of function, along with medical and non-medical evidence.

Do not apply the advances in vocational therapy exception. If a Group II exception does not apply, find that disability continues.

Title II only or Title II/Title XVI concurrent beneficiary with disability entitlement period of at least 24 months (DI 28030.026C.3.)

Do not consider any activities the individual has performed in work for pay or profit during a current period of entitlement based on disability as evidence of evidence of increased functional abilities that may result in a finding the individual is no longer disabled.

The adjudicator may only consider activities in a vocational program that do NOT involve work done for pay or profit.

ONLY apply the advances in vocational therapy exception if the activities in the program do NOT involve work for pay or profit after following the procedures in DI 28020.100D.1.

If the advances in vocational therapy or technology applies, apply the advances in vocational therapy exception and continue to the next step in the CDR sequential evaluation process, see DI 28005.015A.6.

If the advances in vocational therapy exception does not apply and a Group II exception does not apply, find that disability continues.

Consider any activities the individual has performed in work for pay or profit during a current period of entitlement based on disability as evidence of function, along with medical and non-medical evidence.

Do not apply the advances in vocational therapy exception.

If a Group II exception does not apply, find that disability continues.

b. Participation in vocational therapy program that does NOT involve the performance of work for pay or profit

If an individual engaged in a program with advances in vocational therapy or technology during disability entitlement that:

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    favorably affected the severity of the individual’s impairment (i.e., may support conclusion that disability has ended) or,

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    increased the individual's ability to do basic work activities but the individual did not perform any work for pay or profit in the program during the current period of entitlement based on disability, then:

The adjudicator may consider any activities performed in the therapy or technology program when evaluating the individual’s functional ability and the adjudicator may apply the advances in vocational therapy exception. In this scenario, apply the advances in vocational therapy exception and continue with sequential evaluation, see DI 28005.015A.6.

If activities performed in the vocational therapy or technology program support that an individual’s comparison point decision (CPD) impairment(s) has worsened or there is no MI (or no MI related to the ability to work), the adjudicator may use this as supporting evidence to find that disability continues. In this scenario, do not apply the advances in vocational therapy exception. If a Group II exception does not apply, find that disability continues.

E. Exclusions to the advances in medical or vocational therapy or technology exception

1. Exclusions to the advances in medical therapy or technology exception

This exception does not apply to the following cases:

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    Title XVI cases where the recipient is currently eligible under section 1619 or when the beneficiary has been eligible under section 1619 within the last 12 months; or

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    Title XVI child cases (as amended by PL 104-193, enacted August 22, 1996).

2. Exclusions to the advances in vocational therapy or technology exception

This exception does not apply to the following cases:

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    Title XVI cases where the recipient is currently eligible under section 1619 or when the beneficiary has been eligible under section 1619 within the last 12 months.

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    Title XVI child cases (as amended by PL 104-193, enacted August 22, 1996).

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    Cases meeting all of the following criteria:

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      The individual’s impairment has improved or the individual’s ability to do basic work activities has increased due to an advancement in vocational therapy or vocational technology, and

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      The individual’s impairment(s) met or equaled a listing at the CPD, and

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      MI has occurred but MI is not related to the ability to work because the individual’s impairment(s) continues to meet or equal the CPD listing

F. Example - advances in vocational therapy exception applies

CPD: A Title II beneficiary was allowed at the CPD based on their anxiety based on marked limitations in interacting with others and adapting and managing oneself.

CDR: The individual’s activities of daily living and evidence from the individual’s primary medical source do not demonstrate medical improvement of the individual's anxiety. However, the individual participated in a vocational rehabilitation program and records are received from the vocational rehabilitation program. The individual underwent exposure therapy sessions using virtual reality software presenting different scenarios and cognitive-behavioral therapy during the vocational rehabilitation sessions.

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    The exposure therapy took place in the office setting and included specific virtual reality situations that were triggers for the individual’s anxiety. During these sessions, the individual was under medical surveillance and spoke with the psychologist about the event demonstrated on the screen. The psychologist offered coping mechanisms in various scenarios.

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    In addition to exposure therapy, the individual responded well to cognitive behavioral therapy. The cognitive behavioral therapy notes indicate the individual was better able to understand how their thoughts affected their actions and the individual was successful in re-framing negative thoughts and behaviors.

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    The psychologist indicated that the exposure therapy assisted the individual in the office setting and allowed the individual to respond to hypothetical scenarios in a calm manner without triggering an anxiety episode.

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    The psychologist noted successful completion of therapy and was confident in the individual’s ability to perform work in a setting with minimal interaction with the public, performing duties without strict demands or quotas.

Explanation: In this scenario, the individual received advanced rehabilitative methods, that increased their ability to do basic work activities. The adjudicator will apply the advances in vocational therapy exception and continue with the sequential evaluation process.

DI 28020.150 Group I Exception - Vocational Therapy

CITATIONS:

20 CFR §404.1594(d)(2), 20 CFR §416.994(b)(3)(ii)

A. Introduction to the vocational therapy exception

Vocational therapy (related to the individual's ability to work) includes any additional education, training, or work experience since the comparison point decision (CPD) that improves the individual's ability to meet the vocational requirements of more jobs. The vocational therapy may be vocationally significant if it prepares an individual to do a specific job or provides background to do a number of jobs in the same field. The vocational therapy exception considers vocational concepts rather than medical concepts to relate medical improvement (MI) to the ability to work. If the vocational therapy did not improve the individual’s ability to meet the vocational requirements of more jobs, do not apply the exception.

The vocational therapy exception considers vocational factors performed in the program. A medical determination or decision is made considering this evidence, in addition to any new medical evidence and a new residual functional capacity assessment.

If the vocational therapy did not improve the individual’s ability to meet the vocational requirements of more jobs, do not apply the exception.

B. When the vocational therapy exception applies

This exception applies when the criteria in DI 28020.150A are met. The additional education or training is focused on a specific job type or the education or training completed is sufficient to apply a different vocational rule, resulting in the ability to meet the vocational requirements of more jobs.

NOTE: If vocational therapy is in progress or is not complete at the time of the review, do not apply the vocational therapy exception; document this information in an SSA-5002 Report of Contact or a case note in the disability case processing system (DCPS) imaged to disability determination explanation (DDE).

C. How to apply the vocational therapy exception

1. Development

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    Obtain documentation of the type of vocational education, training or work experience the individual received since the CPD. This information may be designated on the SSA-454. Some examples of documentation that may be received from a vocational therapy program include, but are not limited to:

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      records from the educational or training facility;

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      progress reports or notes from vocational rehabilitation sessions; or

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

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

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

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

2. Documentation sample for vocational therapy

If the information required in DI 28020.150C.1. is not in the file, consider contact with a third party if one is available as defined in DI 23007.001C.

If the source is a non-medical source (see DI 24503.020) or entity identified by the individual, follow the guidelines in for requesting assistance in obtaining detailed information relating to the vocational therapy performance, see DI 22505.008 B.5. The individual may be a job or training coach, rehabilitation counselor, or other party that closely worked with the individual during the course of the individual's training to obtain detailed information relating to the vocational therapy performance.

If additional documentation is obtained, this information can be recorded in an SSA-5002 Report of Contact or a case note in DCPS imaged to the DDE.

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

3. Consideration of function demonstrated in a vocational therapy program

If the individual engaged in a vocational-based therapy, treatment, or rehabilitative program, the adjudicator may consider any activities performed in the vocational therapy program when evaluating an individual’s function.

For certain beneficiaries, if part of the vocational therapy or rehabilitation program involved work for pay or profit, the adjudicator will not be able to consider the physical or mental activities performed in that work when evaluating function as evidence whether disability has ceased. Specifically, if a beneficiary has received Title II benefits for at least 24 months, the adjudicator cannot consider activities the beneficiary performed in work for pay or profit during the current period of entitlement based on disability in order to find that disability has ceased. The same guidelines and criteria in the advances in vocational therapy or technology exception apply when evaluating activities performed in work for pay or profit as part of a vocational therapy program while an individual is currently receiving disability benefits.

For instructions on considering activities performed in work during a vocational program, see DI 28020.100D.2.a.

For instructions on considering activities performed in a vocational program that did not involve work for pay or profit, see DI 28020.100D.2.b.

4. Decision

Apply the vocational therapy exception if all of the following criteria are met:

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

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    evidence shows that the individual has received vocational therapy; and

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

If the exception applies, the adjudicator must proceed to step 6 of the adult continuing disability review (CDR) sequential evaluation process.

If a cessation is supported after applying the exception and following sequential evaluation, enter cessation code “03” for a Title II case or “52” for a Title XVI CDR case in Item 11 of the SSA-832 or SSA-833, see DI 28084.015B.3.a.

D. Additional considerations for the vocational therapy exception

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    When this exception applies at step 5, it is not sufficient by itself to find an individual capable of engaging in substantial gainful activity (SGA). Continue to the next step of the adult CDR sequential evaluation process.

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

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

E. Exclusions to the vocational therapy exception

This exception does not apply to:

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

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

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    Title XVI child cases; or

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    Cases meeting all of the following criteria:

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      the individual’s impairment(s) met or equaled a listing at the CPD, and

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      MI has occurred but MI is not related to the ability to work because the individual’s impairment(s) continues to meet or equal the CPD listing, and

    • –

      the individual’s ability to do basic work activities has improved due to vocational therapy.

F. Examples of the vocational therapy exception

1. Vocational therapy exception applies

CPD: An individual with an inability to read or write was allowed based on medical and vocational factors.

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

Explanation: The additional education is sufficient to apply a different vocational rule, therefore the exception applies. The adjudicator will apply the vocational therapy exception then proceed to the next step in the adult CDR sequential evaluation process. For additional information on applying the medical-vocational guidelines, see DI 25025.005B.1.

2. Vocational therapy exception applies

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

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

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

3. Vocational therapy exception does NOT apply

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

CDR decision: After the CPD, the individual attended a two-week online training program for business and received a general completion certificate, but did not receive a certificate specific to a particular skill. The education covered multiple subjects in a relatively short period and was not specific to a particular job or skill set. The individual attempted to work part time for approximately two months in a retail setting and ultimately stopped working due to their limitations from their impairments.

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

G. References

DI 25015.010 Education as a Vocational Factor

DI 25015.015 Work Experience as a Vocational Factor

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


DI 28020 TN 48 - Exceptions to Medical Improvement - 10/22/2024