TN 2 (08-16)

A. FO actions upon request for reconsideration of a medical CDR

When an individual wants to request reconsideration of a CDR:

• Explain the disability hearing process;

• Explain his or her rights and responsibilities as they pertain to the reconsideration process;

• Provide the required appeal forms; and

• Document the appeal request in the disability control file (DCF).

For instructions on processing the request for reconsideration of a CDR, see DI 12026.025.

1. Explain the disability hearing process to the individual

In explaining the disability hearing process:

• Explain what a reconsideration CDR is by referring to the information in DI 12026.001.

• Explain the time requirements in filing a request for reconsideration. For more information on time limits for filing an appeal, refer to GN 03101.010.

NOTE: When a foreign case is involved, see DI 12026.020B.5. in this section, and DI 12026.025D.3.

2. Explain his or her rights to the individual

Advise the individual of his or her right to:

1. Request an appeal.

2. Elect or decline statutory benefit continuation (SBC).

   NOTE: In all cases, the individual must sign a statement indicating whether he or she elects or declines SBC. For more information on SBC, refer to DI 12027.007 and DI 12027.008.

3. Secure representation. Explain to the individual the importance of informing the Social Security Administration (SSA) of representation at the earliest possible time.

4. Present additional evidence to support the appeal. Explain to the individual the importance and advantage of providing additional evidence and medical sources at the earliest possible time.

   NOTE: Although individuals may bring evidence to the disability hearing, it is preferable that he or she provide any evidence before the completion of the case development of his or her appeal.

5. Request SSA assistance in obtaining evidence and, if necessary, that SSA issue an SSA-1272-U4 (Subpoena-Disability Hearing) to compel the production of certain evidence or testimony.

   For more information on subpoenas, see DI 33010.050.

6. Receive a notice of the time and place of the disability hearing at least 20 calendar days before the disability hearing, and the right to waive the 20-day advance notice. If the individual wants to waive this right, see DI 12026.020B.3. in this section.

7. Receive reimbursement for expenses to travel to the disability hearing location, under certain circumstances. For more information on reimbursement of travel expenses, refer to DI 33010.045.

8. Present and question witnesses. Contact the Disability Hearing Unit (DHU) if the individual needs assistance for a witness to appear.

9. Waive personal appearance at the disability hearing by indicating that option on the SSA-789 (Request for Reconsideration – Disability Cessation Right to Appear) form. Inform the individual of the consequences, as stated on the SSA-789 form, of not attending the disability hearing.

   NOTE: The individual can later waive his or her right to appear by submitting a SSA-773-U4 (Waiver of Right to Appear - Disability Hearing) form or a written statement. For more information on the use of this form, see DI 12095.050.

10. Review the evidence in his or her official file. Inform the individual that this review generally takes place the day of the disability hearing, but can be done at the FO prior to the disability determination services (DDS) development, or at other times by making arrangements with the DHU. For more information on providing access to medical records, refer to GN 03340.035.

    NOTE: When an authorized person requests a copy of an electronic folder, include all documents (paper and electronic) that comprise the official disability folder in the copy provided. Offer the authorized person the choice of either a paper or compact disc copy of the folder. For more information on providing a copy of the case file, see DI 81001.030.

11. Request an administrative law judge (ALJ) hearing if the individual disagrees with the disposition of his or her reconsideration appeal.

3. Explain his or her responsibilities to the individual

Advise the individual of his or her responsibility to:

1. Request an appeal and sign the statutory benefit continuation (SBC) election statement in a timely manner to receive SBC (15-days from the date of notice, i.e., 10 days plus 5 days mail time for SBC).

   NOTE: Clearly explain to the individual that SBC payments will result in an overpayment, and the individual is responsible to repay the SBC payments, if the appeal is unsuccessful.

   • For Title II inputs see MS T2PE 003.024 and MS T2PE 003.025;

   • For Title XVI inputs, post data to the appeals screens in the Modernized Supplemental Security Income Claims System (MSSICS). For more information on posting appeal information to MSSICS, see MS MSSICS 020.004.

     For payment continuation posting, refer to MS MSSICS 020.015 and DI 12027.008.

   • Non-MSSICS Cases - Use MSSICS Direct SSR Update (DUSSR). For more information, see MS BUSSR 002.020 (Statutory Benefit Payment Continuation (UABC)).

2. Attend all consultative examinations (CE), if requested to do so by the disability determination services (DDS). Inform the individual that the CE is at no cost to him or her. Explain the importance of attending the CE and cooperating in other ways because failure to cooperate may affect the reconsideration determination.

3. Immediately inform the DHU of any event that affects scheduling the disability hearing, e.g., appointment of a representative, a change of address, or any hospitalization.

4. Forms to request reconsideration of a CDR determination

Provide the following forms as necessary.

a. SSA-789 (Request for Reconsideration – Disability Cessation Right to Appear)

Use Form SSA-789 when an individual requests reconsideration on continuing disability issues, and when selecting whether someone will appear on the individual’s behalf. Assist the individual with completing this form if needed or requested. For instructions on completing this form, see DI 12095.040.

IMPORTANT: The SSA-789 must be dated at the top of the form upon receipt in the FO.

A completed Modernized SSI Claims System (MSSICS) appeals output can act in place of the SSA-789 in Title XVI and concurrent cases if the individual also provided clear written indication of dissatisfaction with the initial CDR determination. There is no MCS system to record a CDR appeal, therefore the individual must complete an SSA-789 for Title II cases.

NOTE: Do not use an SSA-561-U2 (Request for Reconsideration) for a CDR reconsideration because the SSA-789 contains information and questions not covered by the SSA-561-U2.

b. SSA-795 (Statement of Claimant or Other Person)

Use separate Form SSA-795 to capture each:

• Election or declination of SBC payments statement, described in DI 12095.171 and DI 12027.010B.4.

  NOTE: The individual must complete an SSA-795 whether he or she elects or declines SBC. In concurrent cases, the individual must complete two SSA-795s; see Exhibits 1 and 3 in DI 12095.171.

• “Good Cause” statement with late filing of an appeal, described in GN 03101.020.

• “Good Cause” statement for late election of SBC, described in DI 12027.008B.

c. SSA-827 (Authorization to Disclose Information to the Social Security Administration (SSA))

Form SSA-827 serves as the individual’s written request and authorization for a medical or other source to release information to SSA. Obtain one completed original SSA-827 per case. For instructions on completing the SSA-827 form, see DI 11005.055.

d. SSA-3441-BK (Disability Report – Appeal)

Use Form SSA-3441-BK to collect updated information about the individual's impairment(s). Use the SSA-3441-BK form for all reconsideration requests for a disability hearing. For instructions on completing this form, see DI 12095.030.

For instructions on completing the form in the Electronic Disability Collect System (EDCS), see DI 81010.150D.

e. SSA-3881-BK (Questionnaire for Children Claiming SSI Benefits)

Use Form SSA-3881-BK to record information about nonmedical sources of evidence of the individual's functioning. When the case involves a Title XVI disabled child, obtain the SSA-3881-BK, in addition to the SSA-789, SSA-3441, SSA-795, SBC Election Statement, and the SSA-827.

B. Other reconsideration CDR issues

1. Medical issue exists for both Title II and Title XVI

Have the individual complete only one SSA-789, if he or she wishes to file a request for reconsideration under both titles in a concurrent case.

• Check the appropriate blocks in the “Type of Benefit” section of the SSA-789.

• File or upload the SSA-789 in Jurisdictional Documents/Notices (the red tab) of the official folder.

• If the individual is restricting the appeal to one case only, document the reason(s) the individual is not appealing all cases.

NOTE: The appeal cannot be restricted to Title XVI-only because an individual must pursue eligibility for all benefits to be eligible for Title XVI payments. For an overview of Title XVI filing requirements, see SI 00510.001

2. Both medical and non-medical issues exist

If the individual wishes to file an appeal on each issue:

• Obtain a completed SSA-789 and the other necessary forms required for appeal of the medical issue.

• Obtain a completed SSA-561-U2 for the non-medical issue.

a. Title II

For Title II cases:

• Complete the reconsideration of the non-medical issue before the reconsideration of the medical issue only when the non-medical issue is critical to eligibility.

• Complete the reconsideration of the non-medical issue after the release of the reconsidered determination of the medical issue, when the non-medical issue is not critical to eligibility.

b. Title XVI and concurrent Title II/Title XVI

Process the reconsiderations simultaneously when the non-medical issue is critical to eligibility, e.g., income and resources.

• For information about non-medical reconsiderations, see SI 04020.010C.1.

• For information about due process protections and Goldberg/Kelly procedures, see SI 02301.300.

3. Waiver of 20-day advance notice for disability hearing date or time

When processing a waiver of 20-day advance notice for a disability hearing:

• Ensure the individual understands that he or she should not waive the right to receive a 20-day advance notice of the disability hearing if he or she needs additional time to prepare for the hearing.

• Obtain a signed SSA-795 from the individual or his or her representative, containing the following language:

  “I have been advised of my right to be sent a notice of the time and place of my disability hearing at least 20 days before the date of my hearing. Also, I have been advised that I should not give up this right if I need additional time to prepare for the hearing. However, I am prepared to have my hearing on or after [insert date], and hereby knowingly and willingly give up my right to be sent the 20-day advance notice as cited in 20 CFR, sections 404.914(c)(1), and 416.1414(c)(1).”

  NOTE: Revise the above language to delete 404.914(c)(1) if Title XVI only is involved or delete 416.1414(c)(1) if only Title II is involved.

• Send the individual's statement to the DHU along with the SSA-789.

  If the DHU already has the SSA-789, notify the DHU of the individual’s statement by telephone or e-mail. Upload the individual's statement to electronic folder or forward it to the DHU if the folder is paper.

4. Selection of appointed representative

If the individual wants to appoint an attorney or other qualified person to represent him or her, refer to the instructions in GN 03910.001.

If the folder is located in the FO, see GN 03910.040H.

If the folder is not located in the FO, see GN 03910.040I.

Inform the DHU by update after transfer (UAT) if we appoint a representative.

5. Foreign cases

a. Office of Central Operations (OCO) involvement

Foreign cases are the jurisdiction of OCO and its components. Within the Office of Earnings and International Operations (OEIO), the International Benefits Office (IBO) functions as the “field office” for foreign cases. However, the Disability Hearing Officer (DHO) handling foreign cases is a member of the International Disability Unit (IDU) operating within the Office of Disability Operations (ODO).

b. Field office (FO) involvement

Regional and field offices do not process hearings for foreign cases except when their DHO has prior involvement in a particular case. In those instances, the IDU requests assistance from the regional office via the Office of Disability Determinations (ODD). The IDU's DHO continues to process all other foreign reconsideration cases.

If the individual resides in a foreign country or uses a foreign mailing address and contacts the FO (rather than the IBO) for assistance in filing a request for reconsideration of a CDR, follow current procedures, with the following exceptions:

• Do not request the case folder.

• Do not take any action regarding SBC, other than obtaining an SSA-795 regarding the SBC election choice and auxiliaries’ payments.

Inform the individual that he or she can come to the United States (U.S.) for a hearing; or he or she can have OEIO review his or her case and issue a decision based on the evidence of record, which would include any additional evidence submitted in connection with the reconsideration request. If an individual or representative wishes to appear at a hearing:

• Find out where in the United States the individual wishes to have the hearing held (the individual’s point-of-entry into the United States or his or her temporary United States residence determines the region where we will schedule the hearing).

• Find out when he or she will be in that area; and

• Include where and when the individual is available in the material you forward to OEIO.

Ensure that the individual understands there are no provisions for reimbursing expenses for travel outside of the United States.

NOTE: If after entering the United States, the individual has to travel more than 75 miles (one way) to attend a hearing, he or she may request reimbursement for travel expenses incurred within the United States. For information about reimbursement of travel expenses to the disability hearing site, refer to DI 33010.045.

6. Individual also files a new disability application

When an individual files a new application at the same time as a request for reconsideration, or before issuance of a reconsidered determination:

• Forward both cases to the DDS or to the office where the prior case is located.

• Refer to DI 12045.010 (Processing Disability Claims at Different Levels of Appeal, Title II and Title XVI - Common Issue Cases).

C. References

• DI 10105.904 General - Auxiliary(s)

• DI 11005.056 Signature Requirements for Form SSA-827

• DI 12027.008 Evaluating the Time Limits for Statutory Benefit Continuation (SBC)

• DI 12027.010 Processing Statutory Benefit Continuation (SBC)

• DI 12095.000 Appeals Processing Exhibits - Table of Contents

• DI 29001.001 The Right to a Disability Hearing at the Medical Continuing Disability Review (CDR) Reconsideration Level

• DI 33010.050 Subpoenas and Other Requests for Testimony and Documents

• DI 81001.035 Copying a Certified Electronic Folder (CEF) to CD

• DI 81010.150 Processing Claims Appeals of Medical Decisions in Electronic Disability Collect System (EDCS)

• DI 81020.025 Processing Electronic Reconsideration Cases

• GN 00203.011 Special Interviewing Situations: Limited English Proficiency (LEP) or Language Assistance Required

• GN 03101.010 Time Limit for Filing Administrative Appeals

• GN 03101.020 Good Cause for Extending the Time Limit to File an Appeal

• GN 03910.040 Appointment and Revocation of Appointment of Representative