TN 2 (06-17)

Citations:

Social Security Act—Sections 223(d) and 1614(a)

Regulations No. 4—Section 404.918 and Regulations No. 16—Section 416.1418

The Social Security Administration (SSA) conducts a national preeffectuation quality review of a sample of Disability Hearing Officer (DHO) reconsidered determinations at the Disability Determination Services (DDS) level. The review evaluates continuing disability reviews (CDR) reconsideration continuances and cessations to determine whether the evidence supports the determination and to provide management information on the quality of these determinations.

The Office of Quality Review (OQR) Disability Quality Branches (DQB) reviews the DHO reconsidered determination to assess if substantial evidence supports the continuance or cessation.

The review of DHO determinations is similar to the general quality review process contained in GN 04440.002. However, there are some differences.

A. Review standard

With all other reviews, the quality reviewer follows the preponderance of evidence standard (i.e., such relevant evidence that as a whole shows that the existence of the fact to be proven is more likely than not.). However, for DHO determinations, the quality reviewer follows the lesser substantial evidence standard (i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.).

As with all CDR level cases, the probability of reversal (POR) rule does not apply in the DHO review. For when not to apply the POR rule, see ”When You Cannot Use the Probability of Reversal (POR) Rule” in section GN 04440.112.

The quality reviewer of DHO cases follows the same procedures for deficiency citation as with other cases to include:

• Group I and Group II deficiencies using the SSA-1774; and

• Technical Corrective Actions (TCA) using the SSA-847.

For definitions of Group I and Group II deficiencies and TCAs, see “The Quality Review Process” in section DI 30005.001.

NOTE: There are no work issues or onset issues in DHO cases that would require a Form SSA-5524 (Request for Assistance) to be sent to the field office (FO) for development of work activity.

B. Error of law

The quality reviewer of DHO cases will identify and document any errors of law. An error of law is generally defined as a misinterpretation, misapplication, or failure to consider or apply pertinent law(s), regulation(s), Social Security Ruling(s), or an applicable Acquiescence Ruling(s).

Examples of error of law include, but are not limited to, the following:

• DHO did not use the medical improvement review standard (MIRS);

• DHO did not undertake further development when evidence was insufficient;

• Beneficiary or recipient did not appear at the hearing and the DHO did not attempt to contact the beneficiary or recipient to determine good cause;

• DHO did not use the correct vocational rule.

C. Abuse of discretion by the hearing officer

A quality reviewer of DHO cases must be alert to whether a DHO abuses his or her discretion. An abuse of discretion is present when a DHO’s action is erroneous and without any rational basis, or is clearly not justified under the particular circumstances of the case. This includes situations where a DHO improperly exercises, or fails to exercise, his or her administrative authority. An abuse of discretion may also occur when a DHO does not follow procedures required by law or agency policy.

Examples of abuses of discretion include, but are not limited to, the following:

• Not permitting a beneficiary or recipient to submit evidence necessary to support his or her claim;

• Not postponing a scheduled hearing despite physician documentation of the beneficiary or recipient's unavailability for health reasons; or

• Not conducting a full and fair hearing, such as refusing to allow the beneficiary or recipient to testify or cross-examine witnesses.

D. Routing of deficient cases

As with all deficient cases, quality reviewers must return all Group I deficiencies to the adjudicating component for correction. However, in DHO cases, all Group II deficiencies and TCAs must be returned to the Disability Hearing Unit (DHU) for correction.

For the definition of a DHU, see “The Disability Hearing Process -- Title II and Title XVI” in section DI 33001.001.

E. Rebuttal process

The current rebuttal process for the DHO quality review can be found on the Deputy Commissioner of Budget, Finance, Quality, and Management (DCBFQM) website at DQB Reference Material / Office of Quality Review/ DHO Business Process.