TN 17 (05-23)

DI 28005.007 Substitution of Judgment (SOJ) During a Medical Continuing Disability Review (CDR)

During a CDR, the current adjudicator may arrive at a different determination than the adjudicator (including potentially an administrative law judge or the Appeals Council) who made the determination at the comparison point decision (CPD). This may occur even when the previous determination is fully documented and rationalized.

A. What is SOJ?

SOJ occurs when an adjudicator conducting a CDR comes to a different determination than a prior adjudicator after reviewing the same evidence and:

  • The determinations are equally supportable based on the evidence in the folder, and

  • The previous adjudicator has fully documented the folder.

The term “determination” means medical assessment (including severity and residual functional capacity (RFC)), vocational assessment, medical-vocational assessment, or determination of disabled or not disabled.

The term “support” or “supportable” means conforming to the Social Security Administration (SSA) disability program policy and procedures.

When reviewing the CPD evidence during the CDR, the current adjudicator must be aware of the SOJ concept as a review principle and must not substitute their own judgment by attempting to re-adjudicate the case or intentionally search for a Group I prior error exception.

When the CPD folder has complete and accurate documentation, the evidence in the folder supports the determination, and the determination complies with SSA policy; but the CDR adjudicator arrives at an opposite yet equally supportable conclusion, the CDR adjudicator must not substitute their judgment for that of the CPD adjudicator.

B. Identifying SOJ

Substitution of judgment may occur when:

  • The CPD adjudicator fully developed and documented the case with evidence supporting the CPD determination based on policy guidance;

  • The CPD adjudicator considered all the facts in making the determination;

  • The CDR adjudicator, after considering all the facts, believes the evidence directs a different determination than the CPD adjudicator; and

  • Determinations from both the CPD and CDR are equally supportable, then

SOJ occurs if the CDR adjudicator applied an error exception.

NOTE: Do not apply the prior error exception if it is unclear as to whether the CPD determination was made in error. See DI 28020.350 for additional information about the limited scenarios where the prior error exception applies.

C. SOJ and Group I prior error exceptions

1. Identifying prior error without SOJ

When reviewing the CPD evidence, the CDR adjudicator must determine if medical improvement (MI) occurred without substituting judgment on the CPD determination. The case does not involve SOJ if any of the following exists and an exception applies in accordance with DI 28020.001:

  1. a) 

    The CPD determination clearly contradicts the evidence present during the CPD (for example, the CPD adjudicator bases their determination on an incorrect interpretation of an electrocardiogram, contrary to accepted medical knowledge); or

  2. b) 

    The CPD determination is clearly contrary to specific disability program policy in effect at the time of the CPD; or

  3. c) 

    The CPD adjudicator has clearly misinterpreted or misrepresented the evidence in their determination rationale; or

  4. d) 

    All of the following exist:

  • The CPD adjudicator’s determination does not explain the application of the medical improvement review standard (MIRS),

  • The CDR adjudicator reaches a different conclusion, and

  • The CPD adjudicator’s determination is not supportable.

Do not apply a prior error exception simply because the prior determination explanation is inadequate or missing. There must be disagreement based on a reasonable interpretation of the evidence in file, and the current adjudicator’s determination must clearly be more supportable.

If the CPD determination is not supportable, then the CDR adjudicator's different determination does not represent SOJ and the adjudicator may apply an error exception when appropriate. For additional information on the Group I exceptions, see DI 28020.001B.1.

2. Documenting a prior error finding

When applying the Group I prior error exception, thoroughly document the finding of prior error. Include a supportive rationale that explains how the evidence shows the prior determination was erroneous. This includes evidence on the record at the time of any prior determination and any newly obtained evidence that relates to a prior determination. For additional information on applying a prior error exception and the rationale content, see DI 28020.350 through DI 28020.365 and DI 28090.055. When documenting the prior error exception, explain:

  • What substantial evidence shows a prior determination was in error, 

  • The specific available evidence that does not show a reasonable alternate basis for the prior determination (meaning the decision outcome was not correct, not that the claim could have been allowed under an alternate basis that does not impact benefits), and 

  • One of the three types of prior error is found in DI 28020.350 through DI 28020.365 apply. 

The error exception will not be applied retroactively under the conditions described below unless the conditions for reopening the prior decision are met (see DI 27501.001, DI 27501.005, and DI 27505.000. Do not apply a prior error exception simply because the prior determination explanation is inadequate, lost, or missing.

3. Addressing prior error during a CDR

If the CDR adjudicator determines that prior error exists in the CPD determination, and this determination does not constitute SOJ, then the CDR adjudicator must determine which error exception applies according to DI 28020.001B.1 and then follow the procedures to apply the prior error exception according to DI 28020.375.

D. Examples

1. Applying the prior error exception without SOJ

At CPD: The individual alleges they cannot walk due to numbness in their legs. The individual uses a cane when walking and must sit down to relieve tingling in their legs. Examinations show the individual maintains good strength but is diagnosed with peripheral arterial disease (PAD) and was prescribed a four-prong cane. The impairment did not meet or equal listing 4.12, so the adjudicator prepared a less-than-sedentary RFC assessment, limiting standing and walking to one hour out of an 8-hour workday. This precluded the individual's past relevant work due to the ambulatory limitations. Functional evidence was in the file at CPD that discusses standing and walking, but this was not addressed in the RFC assessment. The examiner only cited the PAD and ambulation with a cane.

At CDR: Current evidence shows unchanged symptoms and signs. However, review of the CPD evidence showed an ankle-brachial index (ABI) of .95, indicating mild PAD. A detailed review of the CPD activities of daily living (ADLs) indicate the individual reported an estimate of standing and walking approximately 4 hours in an 8-hour period during the day, using the cane as needed. The current adjudicator feels that at CPD the individual should have been capable of at least sedentary activity. The current adjudicator applies a Group I prior error exception.

Discussion: The current adjudicator applied a Group I prior error exception correctly. The results of the ABI clearly indicate that the impairment is not as severe as proposed at CPD and the individual's ability to stand and walk more than a total of one hour out of an 8-hour workday is supported. SOJ did not occur because the evidence clearly contradicted the restrictions in the prior RFC that was the basis of the allowance at the CPD.

2. Applying the prior error exception with SOJ

At CPD: The individual reported difficulty standing and walking and was taking medicine prescribed by their pain management doctor. X-rays showed mild to moderate spinal stenosis. The CPD adjudicator prepared an allowance based on a sedentary RFC due to back impairment.

At CDR: The individual currently reports back pain and is taking over-the-counter medications because they no longer see a doctor on a regular basis. The individual reports difficulty standing due to the pain but they are able to perform some light household chores. Examinations show the individual walks with a slight limp on the right side. Recent x-rays show mild to moderate lumbar stenosis. Based on this evidence the current adjudicator prepares a light RFC assessment. The individual’s benefits cease because the medical-vocational rules indicate “not disabled.”

Discussion: In the example provided, the individual currently reports back pain with difficulty standing and walking, and is taking pain medications (symptoms), walks with a limp (signs), and x-rays (lab findings) are consistent with films from the CPD. The current adjudicator substituted judgment (a light RFC) for that of the CPD adjudicator (a sedentary RFC). There was no need for a current RFC assessment since the symptoms, signs, and lab findings have not significantly changed since the CPD. The current adjudicator failed to evaluate MI and, instead, re-adjudicated the CPD evidence, arriving at a different RFC based on the same evidence without demonstration of an error. The current adjudicator should have prepared a “No MI” determination.

E. References

  • DI 28005.005 Overview of Development in the Continuing Disability Review (CDR) Sequential Evaluation Process

  • DI 28010.015 Comparison of Symptoms, Signs and Laboratory Findings

  • DI 28020.355 Group I Exception - Prior Error, Error on the Face of the Record

  • DI 28020.360 Group I Exception - Prior Error, Required and Material Evidence Was Missing

  • DI 28020.365 Group I Exception - Prior Error, New Evidence Related to the Prior Determination or Decision

  • DI 28020.375 Error, Reopening, and the Medical Improvement Review Standard (MIRS)

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DI 28005.007 - Substitution of Judgment (SOJ) During a Medical Continuing Disability Review (CDR) - 05/31/2023
Batch run: 03/22/2024