PROGRAM OPERATIONS MANUAL SYSTEMPart DI – Disability InsuranceChapter 230 – Special IssuesSubchapter 07 – Failure to CooperateTransmittal No. 8, 12/27/2024
Audience
Originating Component
ODP
Effective Date
Upon Receipt
Background
The Office of Disability Policy updated these sections to be consistent with DI 26535.042, a new section that provides definitions of individuals and entities with whom we correspond and send notices and outlines who must receive correspondence when multiple parties are authorized to act on behalf of a claimant or are designated to assist a claimant.
In addition, as a result of a domestic violence work group, the Office of Disability Determinations (ODD) asked for a new functionality to deactivate the designated third party in the Disability Case Process System (DCPS) when the claimant revokes their consent to contact them. The update was recently completed in DCPS and we revised DI 23007.005 to support the new functionality.
Summary of Changes
DI 23007.001 Failure to Cooperate and Insufficient Evidence Definitions
We updated this section as follows:
Removed information about locating the third party on multiple forms from the special handling definition and added a reference to the third party in DI 23007.001C;
Clarified the definition of a third party definition and circumstances when DDS should not attempt to identify a third party;
Removed references to and the definition of the applicant; and
Updated the definition of an appointed representative to align with the definition used in DI 26535.042.
DI 23007.005 Contacting the Claimant, Appointed Representative, or Third Party in Claims Involving Failure to Cooperate and Insufficient Evidence
Removed all references to the applicant;
Removed a NOTE about contacting the representative payee;
Removed a NOTE about communicating with represented claimants;
Added a new subsection B.2. explaining what to do when the claimant does not identify a third party contact;
Added a new subsection B.3, explaining what to do when a claimant asks us to no longer communicate with their designated third party, how to document this request in DCPS, and how to notify the Field Office of this change;
Streamlined and clarified what the DDS may say when contacting the claimant or one of their contacts by telephone, and when leaving a voicemail message;
Clarified where to document a conversation in DCPS; and
Eliminated outdated references to the Electronic Claims Analysis Tool (eCAT).
DI 23007.010 A Reasonable Effort to Identify and Involve a Third Party in Claims Involving Failure to Cooperate and Insufficient Evidence
Removed references to the applicant;
Clarified when to make a reasonable effort to identify and involve a third party, in subsection A;
Removed information about locating the third party on multiple forms and, instead, added a reference to third party information in DI 23007.001C;
Clarified what the DDS must do when the DDS did not designate a third party contact;
Clarified where to document a conversation in DCPS;
Added instructions to also send a letter when the DDS leaves a voicemail message for the claimant or one of their contacts;
Added instructions for contacting both third party contacts; and
This subchapter, Failure to Cooperate and Insufficient Evidence (FTC), describes what adjudicators must do when a claimant does not comply with an initial request for evidence or action, or an initial notice of a consultative examination (CE) appointment. The instructions apply to initial and reconsideration level claims. This section provides definitions for terms used throughout the FTC subchapter.
For when the claimant does not comply with an initial request for evidence or action, see DI 22505.014.
For when the claimant does not comply with an initial notice of a CE appointment, see DI 22510.019.
All claims in which the claimant is under age 18 require special handling.
Claims in which the claimant is aged 65 or older require special handling when the claimant does not have an appointed representative (AR) or when the AR has asked us to deal directly with the claimant. For these claims, follow the instructions in DI 25015.025.
Other claims require special handling when the claimant does not have an AR, and at least one of the following applies:
Homelessness,
Illiteracy,
Limited English proficiency (LEP),
A severe, mental medically determinable impairment (MDI),
Undergoing an age 18 redetermination, or
Aged out of foster care in the last two years (identified by case flag).
NOTE: For purposes of determining whether special handling applies only, assume that an alleged mental impairment is medically determinable and severe, absent evidence to the contrary. When you have such evidence, document it on an SSA-2506 (Psychiatric Review Technique) and do not apply special handling procedures.
REMEMBER: For claims requiring special handling, you must make a reasonable effort to identify and involve at least one third party before you stop attempts to get the claimant's cooperation.
For more information on where to locate a third party (or parties) on the appropriate forms, see DI 23007.001C in this section.
For more information on making a reasonable effort to identify and involve a third party, see DI 23007.010.
A good reason may include, but is not limited to, the following:
Physical, mental, educational, and verbal limitations, including limited English proficiency (LEP),
Personal illness,
Death or serious illness in the family, or
Other obstacles beyond the claimant's control.
Someone identified by the claimant you can contact who knows how to reach the claimant should they become unavailable and can help with their claim.
Examples of a third party might 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.
Third party information is located in Section 2 – "Contacts" of the SSA-3368 (Disability Report - Adult), SSA-3441 (Disability Report - Appeal), or SSA-454 (Continuing Disability Review Report). The FO may provide an additional third party in Section 2 – "Contacts" or Section 11 – "Remarks" of the SSA-3368, Section 10 – "Remarks" of the SSA-3441, or Section 11 – "Remarks" of the SSA-454.
Do not ask the claimant to identify any third parties when:
The claimant selects "No" in Section 2 – “Contacts” of the SSA-3368, indicating they are unable or unwilling to designate someone who knows how to reach them, and we can contact if they become unavailable, or
The FO documented the claimant refused to identify a third party in the Remarks section of the SSA-3441 or SSA-454.
NOTE: Do not use a third party from a prior folder or prior appeal levels.
An individual the claimant appoints to represent them in their business before the Social Security Administration (SSA) (i.e., to act on the claimant's behalf and pursue the claimant's interests).
For more information on representation of claimants, see DI 31001.001.
This section describes whom adjudicators must contact when a claimant does not comply with an initial request for evidence or action, or an initial notice of a consultative examination (CE) appointment. The instructions apply to initial and reconsideration cases using the adult sequential evaluation process (see DI 22001.001A). For a Title XVI disabled child (DC) case, see DI 25205.020. For a continuing disability review (CDR) case, see DI 28075.005.
The Disability Determination Services (DDS) must contact (by telephone or by letter) the:
Claimant when the claimant does not have an appointed representative (AR).
Claimant and AR when the claimant has an AR, for contact by letter. For contact by telephone, call the AR unless the AR has given permission for direct telephone contact with the claimant (see DI 31001.010).
For whom to contact in a continuing disability review (CDR) case, see DI 28075.005B.
NOTE: When a claimant has a legal guardian, you must also contact the legal guardian whenever you are required to contact the claimant (see GN 00502.139).
REMINDER: An adult claim in which the claimant has an AR or a legal guardian does not require special handling, even if the claim falls into one of the special handling categories.
The DDS must contact (by telephone or by letter) the:
Claimant, and
Third party (as defined in DI 23007.001C).
You may make a reasonable effort to involve a third party at any point in the process, but you may not discontinue attempts to develop evidence requiring the claimant's cooperation until you make a reasonable effort to identify and involve at least one third party (see DI 23007.010).
For claims that require special handling, see DI 23007.001A.
For information on the third party, see DI 23007.001C.
For whom to contact in a Title XVI disabled child (DC) case, see DI 25205.020A.2.
For steps to confirm a CE with special handling, see DI 22510.019D.
IMPORTANT: You must make a reasonable effort to involve the third party from the current level of review. Do not use a third party from a prior folder or a prior appeal level.
When the claimant does not comply with your follow-up request for evidence or action, or does not confirm or misses the CE appointment, you must make a reasonable effort to involve the third party.
When the claimant does not comply with your follow-up request for evidence or action, or does not confirm or misses the CE appointment, and the claimant identified an additional third party on the appropriate forms, you must make a reasonable effort to involve the additional third party when the attempt with the other third party was not productive (i.e., consider a contact attempt to be unproductive when the third party refuses to assist the claimant or does not respond to our contact attempts within a minimum of 10 calendar days).
When the claimant does not comply with your follow-up request for evidence or action, or does not confirm or misses the CE appointment, you must make a reasonable effort to identify one third party. When the claimant did not identify any third party and did not indicate they would not provide one, ask the claimant if it was their intent not to designate someone we can contact if they become unavailable and who can assist with their claim.
Do not attempt to identify any third party when:
The claimant selects "No" in Section 2 – "Contacts" on the SSA-3368 (Disability Report – Adult), or
The FO documents the claimant's refusal to provide an additional third party in the Remarks section of the SSA-3368, SSA-3441 (Disability Report – Appeal), or SSA-454 (Continuing Disability Review Report).
When the claimant revokes their consent for us to contact any third party, DDS must:
Attempt to obtain a new third-party contact,
Add the new third-party contact information in the Disability Case Processing System (DCPS), and
Deactivate the revoked third-party contact in DCPS.
If the claimant lives at the same address and uses the same telephone number as the person we are no longer authorized to contact, ask the claimant if we may continue to contact them (the claimant) at the listed mailing address and telephone number, or if their own contact information needs to change.
Document the claimant's request not to contact the previously designated third party on an SSA-5002 (Report of Contact) and upload it to the certified electronic folder (CEF).
IMPORTANT: If someone other than the claimant or one of the required contacts answers the phone, or if you leave a voicemail message, leave only enough information so they know to return the call. Do not disclose any unnecessary personal information about the claimant or their disability claim.
If you speak to one of the required contacts (see DI 23007.005), document the date and content of your conversation, and to whom you spoke, on an SSA-5002 or a Case Note in the Disability Case Processing System (DCPS), and "write to" the case development worksheet (CDW).
For information on what to include in your conversation, see DI 22505.014A.1.a.
If you leave a message for the contact, document the date and content of your message, and with whom you left it, on an SSA-5002 or a Case Note in DCPS, and "write to" the CDW. You must also send the contact a call-in letter, following the instructions in DI 22505.014A.2
For information on what to include in your message, see DI 22505.014A.1.b.
Before you stop attempts to get the claimant to comply with your request, you must make a reasonable effort to identify and involve a third party when all of the following apply:
The claim falls into a special handling category;
The claimant does not have an appointed representative (AR), except when the claimant is under age 18. These claims require special handling even when they have an AR;
The claimant has not already identified a third party on the SSA-3368 (Disability Report - Adult), SSA-3441 (Disability Report - Appeal), or SSA-454 (Continuing Disability Review Report);
The claimant did not indicate they are unwilling or unable to provide any third party by selecting "No" in Section 2 – "Contacts" on the SSA-3368;
The Field Office (FO) has not documented that the claimant refused to provide a third party (or parties) in the Remarks section on the SSA-3368, SSA-3441, or SSA-454; and
The claimant has not complied with a follow up request for evidence or action or does not attend or confirm a consultative examination (CE) appointment.
For the definition of a third party and where to locate them on the appropriate forms, see DI 23007.001C.
When the claimant does not comply with an initial request for evidence or action, see DI 22505.014.
When the claimant does not comply with the initial notice of a consultative examination (CE) appointment or does not attend a CE appointment, see DI 22510.019.
When the criteria in DI 23007.010A in this section applies, make a reasonable effort to contact the claimant to ask if they intended to omit third party contact information. If that was not their intention, ask them to identify one person we can contact who knows how to reach them if they become unavailable and can assist with their claim.
You may also ask the claimant to identify a third party when you follow up on an initial request for evidence or action, or when you attempt to confirm the claimant's attendance at a scheduled CE appointment (see DI 22510.019).
IMPORTANT: If someone other than the claimant answers the phone, or if you leave a voicemail message, leave only enough information so they know to return the call. Do not disclose any unnecessary personal information about the claimant or their disability claim.
Verify the claimant's identity prior to discussing any details of the case (see DI 39567.210 and GN 00203.020). Ask for the name and contact information of a third party. When the claimant asks for more time to provide this information, give them 10 additional calendar days from the date of your telephone call. Explain that failure to provide the requested information may result in you making a determination based on the evidence in file, which means you may find that the claimant is not disabled.
Document the date and content of your conversation on an SSA-5002 (Report of Contact) or a Case Note in the Disability Case Processing System (DCPS), and “write to” the CDW.
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 must also mail the claimant a call-in letter following the instructions in DI 23007.010B.2, in this section.
Include the following in your message:
Your contact information and the date you called; and
A request that the claimant return your call within 10 calendar days from the date of your message.
Document the date and content of your conversation on an SSA-5002 or a Case Note in DCPS, and “write to” the CDW.
Include the following:
Your contact information and date of your letter;
Request the claimant provide the name and contact information of at least one third party who knows how to reach them and we can contact if they become unavailable;
A request that the claimant call you within 10 calendar days from the date of your letter with the requested information; and
Explain that failure to provide the requested information may result in you making a determination based on the evidence in the file, which means you may find that the claimant is not disabled.
You make a reasonable effort to involve the third party (or parties) by contacting them by telephone or by letter. This is true even when one or both of the third parties declines to assist the claimant or does not respond to your contact.
When the claimant identified an additional third party, you must also make a reasonable effort to involve the additional third party when your attempt to involve the other third party was not productive (i.e., you are unable to speak to or leave a message for the third party, or they do not respond to a call-in letter). You may attempt to contact both third parties on the same day. You do not need to wait for the initial third party to respond before attempting to contact the additional third party.
How you contact a third party may depend on the information in the file (e.g., contact a third party by telephone when you only have their telephone number or send a letter when you only have their address). Do not attempt to look up a third party’s telephone number or address in a telephone book or online unless the third party is a professional at a particular location (e.g., a social worker at a specific clinic).
IMPORTANT: If someone other than the third party answers the phone, or if you leave a voicemail message, leave only enough information so they know to return the call. Do not disclose any unnecessary personal information about the claimant or their disability claim.
Do the following during the conversation:
Verify the identity of the third party prior to discussing any details of the case (see DI 39567.210 and GN 00203.020);
Provide your contact information;
Explain that the claimant told you that you could contact them for assistance with the claimant’s disability claim; and
Explain that the claimant did not:
Comply with your initial request, or follow up request, for evidence or action, or
Attend the CE appointment that you scheduled.
When the claimant did not comply with your request for evidence or action, identify the evidence or action that you need. When 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.
When the claimant did not attend the CE appointment that you scheduled, explain the CE process and the claimant’s need to attend. When the third party provides a good reason for rescheduling the CE appointment, reschedule the CE.
Explain to the third party that if the claimant does not comply with your request(s) for evidence or action, or attend the CE appointment, you may make a determination based on the evidence in file, which means you may find that the claimant is not disabled.
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.
Your contact information and date that you called;
State that you are calling on behalf of the claimant;
Request that the third party return your telephone call within 10 calendar days from the date of your message; and
Send the third party a call-in letter following the instructions in DI 23007.010C.2, in this section.
Include the following but do not disclose any unnecessary personal information about the claimant:
Your contact information;
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 request or follow up request, for evidence or action, or
Did not attend the CE appointment that you scheduled.
When you need evidence or action, identify that evidence or action;
When 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 from the date of your letter; and
An explanation that if the claimant does not comply with your request(s) for evidence or action, or attend the CE appointment, you may make a determination based on the evidence in file, which means you may find that the claimant is not disabled.