TN 36 (09-15)

A. Policy on required and material evidence was missing error exception

This category of error applies if:

1. At the time of the prior determination or decision, required and material evidence of the severity of the impairment(s) was missing; and

2. The evidence in question becomes available upon review and now shows that if the evidence had been present before, we would not find the individual disabled.

B. Procedure on required and material evidence was missing error exception

Consider evidence “missing” in this context if documentation guides (such as the Listing of Impairments) required the evidence in question, but it was not obtained.

Do not develop just to obtain the missing evidence. However, include the missing evidence in file if received during routine current development.

C. Examples of required and material evidence was missing error exception

1. Pulmonary Disease - Error applies

a. Comparison Point Decision (CPD)

At the time of the prior determination or decision, the adjudicator found the individual disabled based on chronic obstructive pulmonary disease documented primarily by pulmonary function testing results. The evidence showed he could do only light work. No required spirometric tracings of the testing were obtained.

b. Continuing Disability Review (CDR)

The physician resubmitted the original report along with corresponding spirometric tracings. A review of the tracings shows the test invalid. Current pulmonary function testing supported by spirometric tracings reveals that the impairment does not limit ability to perform basic work activities in any way. Find the prior decision in error.

2. Heart Disease - error applies

a. CPD

Listing 4.04B.1 (transmural myocardial infarction with specified electrocardiogram (EKG) abnormalities) was cited. Although listing 4.04 required a complete appropriately labeled EKG tracing, the tracing in file was incomplete and inappropriately labeled.

b. CDR

A complete appropriately labeled EKG tracing from the time of the prior determination is received during the CDR and shows that listing 4.04 was not met at the time of the prior determination. Because disability would not have been found if the complete EKG tracing had been present before, find the error exception met.