TN 45 (10-23)

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

A. When the error on the face of the record exception applies

Disability Determination Services (DDS) should find a prior determination or decision in error if the evidence shows an error on the face of the record that led to an incorrect decision. This category includes misreading evidence or misapplying an adjudicative standard (such as the Listing of Impairments or the vocational rules).

B. How to apply the error on the face of record exception

In deciding whether this error category applies, only consider evidence on the record at the time of the prior determination or decision. For additional reminders about consideration of prior error, see DI 28020.350C through DI 28020.350E, Group I Exception - Prior Error Overview.

C. Examples of error on the face of the record

1. Epilepsy - Error Applies

Comparison point decision (CPD): At the time of the prior decision or determination, the adjudicator found that the individual's epilepsy met listing 11.02, which required a finding of major motor seizures more frequently than once a month as documented by electroencephalogram evidence and a detailed description of a typical seizure pattern.

Continuing disability review (CDR) decision: Review of evidence from the medical source at the CPD clearly showed the seizures occurred only once or twice a year.

Explanation: The adjudicator misinterpreted evidence in file, resulting in an inappropriate application of the listing at the CPD. Find the prior determination or decision in error.

2. Vocational rule - Error Applies

CPD: At the time of the prior decision, the adjudicator found an individual disabled based on vocational rule 201.14, which applies to an individual that is:

  • age 50-54,

  • who has at least a high school education,

  • whose past relevant work is skilled or semiskilled level and those skills were not transferable, and

  • who could perform work within the sedentary occupational range.

CDR decision: During the CDR, the adjudicator finds that at the time of the prior decision the individual was actually only age 46.

Explanation: Vocational rule 201.21 should have applied, and the case should have been a denial. Find the prior determination or decision in error based on misapplication of an adjudicative standard.

3. Vertigo - Error Applies

CPD: The claim for a 50-year-old utility line repair technician with twelve years of education was allowed on a medical-vocational basis because the individual could “no longer work at heights or in hazardous situations due to vertigo, as required in their customary job.” This was documented in a SSA-416; however, the file did not contain a residual functional capacity (RFC) assessment at CPD. No other impairment was alleged or discovered during medical development. The rationale did not discuss the ability to perform other work, nor did the file include a detailed work history.

CDR decision: The severity of the individual's vertigo remained unchanged.

Explanation: Usually, a substitution of judgment (in this example, regarding the RFC) is involved in proposing to find error in prior medical-vocational decisions. However, there is a unique set of circumstances in this example. Neither the rationale nor folder reflected any attempt to evaluate “other work,” no RFC was prepared, and no vocational rule cited. Also, there were no other impairments (including no “not severe” impairments) which could form a basis for finding the individual unable to do other work. The vertigo alone could not have prevented the individual from doing all other work not involving working at heights or around machinery. The CPD was in error because of the clear misapplication (or non-application) of the other work step in the sequential evaluation process.

4. IQ 62 and back impairment - Error Does Not Apply

CPD: The individual met medical listing 12.05C based on an IQ of 62 and a back impairment. The medical records at that time demonstrated degenerative disc disease, confirmed on imaging, with restricted range of motion in the lumbar and cervical spine. Notes showed the individual ambulated with a slow, wide based gait.

CDR decision: Several medical consultants agree that the impairment did not meet listing 12.05C at the time of the prior decision. They believe the back impairment did not cause significant limitations to work-related function, which listing 12.05C required at the CPD. Currently, the evidence shows a back impairment with some limitation of function, overall findings are similar to the documented impairments at the CPD.

Explanation: Because there is no substantial evidence to show that the back impairment did not impose limitations to the extent required by listing 12.05C, application of the error exception would represent a substitution of judgment. Do not meet the error exception.

5. Fistula - Error Does Not Apply

CPD: The individual had diabetes, a draining fistula, and tender abdominal mass palpable on physical examination. The draining fistula and tender abdominal mass were present on two evaluations at least 60 days apart within a consecutive 12-month period; however, the individual did not report experiencing abdominal pain or cramping. The diabetes resulted in peripheral neuropathy with numbness of both feet and diabetic retinopathy. The best-corrected visual acuity fluctuated, although the best measurement was 20/80 in each eye. The visual fields were normal. The prior decision found the combination of impairments medically equaled Listing 5.06B for inflammatory bowel disease (IBD).

CDR decision: The current adjudicator raised the question of error because the evidence shows the individual does not (and did not) have IBD or any other disorder that would make listing 5.06 clearly applicable.

Explanation: Because of the draining fistula and tender abdominal mass, there is a reasonable relationship between the combination of impairments and listing 5.06. Do not substitute judgment. Find the error exception not met.

6. Sequential evaluation process - Error Applies

CPD: In a decision, an administrative law judge (ALJ) found the individual had no severe impairments. This finding was supported by the evidence of record. The ALJ then awarded benefits at step 5 by finding that there were no jobs that exist in significant numbers in the national economy that the claimant could perform.

CDR decision: The evidence continues to show that the individual does not have a severe impairment.

Explanation: The CPD was in error because of the misapplication of the severe impairment step in the sequential evaluation process. The claim should have been denied at step 2 of the adult initial sequential evaluation process, and the error exception applies.

7. Erroneous activation of a sample case - Error Does Not Apply

Situation: The Disability Determination Services (DDS) proposed a continuance in a case selected for review. The Office of Quality Review (OQR) returned the case for additional development to assess medical improvement. The DDS obtained additional evidence and again proposed an allowance. DDS forwarded the case to the OQR, and an allowance was erroneously activated, releasing a notice of entitlement to the individual. Since the individual did not file an appeal, the DDS determination became final. The OQR reviewed the additional evidence and determined the evidence supported a denial, not an allowance. The OQR referred the case to the Office of Disability Policy (ODP) for a request for program consultation (RPC) to determine if reopening was necessary. The ODP engaged in the RPC process and determined that there was not clear error in the decision and ultimately determined the allowance was appropriate.

Exception rationale: The triggering of the proposed allowance does not constitute an error since the DDS believed the evidence supported an allowance and after further review, the allowance determination was upheld after review through the RPC process. However, a denial incorrectly effectuated as an allowance would be in error. The favorable decision is adversely reopened by the DDS only if OQR shows clear error.

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DI 28020.355 - Group I Exception - Prior Error, Error on the Face of the Record - 10/06/2023
Batch run: 10/06/2023