TN 36 (09-15)

A. Introduction to error exception and reopening

MIRS applies to some reopening situations. For more information about when MIRS applies, see the legal standard for determining if disability continues in DI 28005.001.

B. Policy on error exception and reopening

1. Consider reopening

When conditions for use of the error exception (or the fraud or similar fault exception located in DI 28020.900B) apply, consider reopening whether MIRS applies or not.

2. Reopening and ability to engage in substantial gainful activity (SGA)

When the MIRS applies and the determination in a particular case relies on the error exception, the continuing disability review (CDR) evaluation process requires a finding of current ability to engage in SGA, before making any unfavorable decision including reopening.

C. Procedure

If a decision made at a higher appeals level (e.g., by an Administrative Law Judge) is found in error for purposes of the error exception and the individual can engage in SGA, process the cessation first. After processing the cessation, if the time limit for reopening has not expired, refer the case for possible reopening at the prior appeal level. For instructions routing reopened cases, see DI 28501.030.

References:

• DI 28005.205, Cessation Month and Error Cases

• DI 27501.001, Reopening and Revisions: Pertinent Definitions and Related Policy

• DI 28501.001, Question of Reopening Arises

• DI 28005.005, The Continuing Disability Review (CDR) Evaluation Process for Title II and Adult Title XVI Individuals

GROUP II EXCEPTIONS