A. Procedures — Development

When a failure issue exists:

1. Ability to Work

Determine whether the prescribed treatment is likely to restore the ability to work, or in the case of an SSI child, the ability to function independently, appropriately, and effectively in an age-appropriate manner. (See DI 23010.005A.2. and DI 23010.005A.4.) If not, no “failure” issue exists.

2. Claimant Contact

1. Contact the individual in person, e.g., by phone.

2. If DDS contact is not possible:

   • Request the field office (FO) to contact the individiual.

   • Provide the FO detailed instructions per DI 23010.010A.2.c. through DI 23010.010A.2.j.

3. Ask the individual to describe the following:

   • The nature of the treatment,

   • Probable course of the condition with and without prescribed therapy to ascertain his/her understanding, and

   • In their own words, why the prescribed treatment has not been followed.

4. Where the claimant's responses suggest confusion or the inability to understand, investigatethe possibility of a mental impairment. (See DI 23010.010A.7.)

5. Explain that:

   • The information supplied will be used in the disability determination.

   • The requirements of the law provide that continued failure to follow prescribed treatment without good cause can result in a denial or cessation of benefits.

6. Avoid giving an impression that SSA is attempting to influence the claimant's decision.

7. Make no statements that could be construed as interference in the doctor-patient relationship.

8. Document the claimant's responses clearly and accurately.

9. Recontact the treating source to clarify or substantiate what the individual was told.

10. Explain that:

    • An adverse determination for failure to undergo prescribed treatment may mean entitlement requirements (e.g. duration of impairment and insured status), will not be met even if the individual agrees to undergo such treatment at a later date.

    • Undergoing prescribed treatment later will not be the basis for reopening a failure decision, or

    • For establishing an onset within the period covered by a failure decision.

3. Religion Issue

1. Identify the church affiliation.

2. Obtain statements from church authorities or other church members to substantiate the individual's membership.

3. Document the church's position relative to the medical treatment, with:

   • Relevant church literature, or

   • Statements from church authorities about the teachings and tenets of the church.

NOTE: In cases involving Christian Science, obtain only verification of church membership, since church teachings, forbidding acceptance of medical treatment, are well-established.

4. Fear of Surgery

a. DDS Medical Consultant:

• Advise the treating source of the individual's fear and ascertain whether the fear is so great that surgery is contraindicated.

• Consider and order, when appropriate, a psychiatric CE, if the treating source is unable to assess the severity of the fear. (See DI 23010.010A.7.b.)

b. DDS Examiner:

Do not consider refusal of surgery (in and of itself) as good cause for failing to follow prescribed treatment if it is only based on the individual's:

• Assertion that success is not guaranteed, or

• Personal or third party knowledge of some other individual for whom the treatment was not successful.

5. Unable to Afford

1. Document the individual's financial resoures.

2. Explore all possible local community resources (i.e., clinics, charitable organizations, public assistance agencies) to determine if the individual can obtain:

   • Free treatment, or

   • Funds to cover treatment

3. Document your actions and findings in an SSA-5002 (Report of Contact).

6. Treatment Against Medical Advice

1. If any treating source recommends against another treating source's prescribed therapy no “failure” issue is raised.

2. Where an individual chooses to follow treatment recommended by one treatment source to the exclusion of alternate treatment recommended by one or more other treating sources, no “failure” issue is raised.

7. Mental Impairment

Where the evidence in file does not address mental capacity:

1. Contact the individual's physician or psychologist to ascertain whether the individual:

   • Evidences signs or symptoms of a mental impairment, and

   • Is able to understand the consequences of failure to pursue prescribed treatment.

2. Consider ordering a psychiatric examination if the treating source is unable to assess the individual's ability to understand and pursue treatment.

8. Other Situation

1. Document and fully evaluate the specific facts of the case to determine whether the individual's reason for failing to follow prescribed treatment is justified.

2. Accept any reasonable explanation appropriately document for a finding of good cause.

B. Procedure — Adjudication

1. General

1. Advise the individual or authorized representative by letter (see DI 23010.030) of our intention to find failure.

2. Defer adjudication for at least 30 days.

3. Where the individual advises intent to undergo treatment, but firm commitment is in doubt, provide at least 15 days for a firm commitment to be made.

   NOTE: Where a firm commitment has been made within 30 days to undergo treatment, the “failure” issue no longer exists.

4. No Response or Response of Intent Not to Undergo Treatment

   After the appropriate time, make an initial determination of failure to follow prescribed treatment.

2. Initial Claim

a. Failure Established Within 12 Months of Onset

Deny based on duration.

b. Failure Established at Least 12 Months After Onset

• Establish a closed period

• Cessation date is, as in DI 23010.010B.3.

c. Failure Arises or is Unresolved at Least 12 Months After Onset

• Allow

• Continue to develop

NOTE: If allowed at the ALJ or AC level, refer the case to the effectuating component for continued development per DI 23010.010A.

3. Continuing Disability

1. Develop per DI 23010.010A.

2. Cease disability as of the month of the adverse determination, if a cessation is warranted based on a determination of “failure.” Benefits will end 2 months after the month of determination of cessation.

C. Procedure — No Failure Issue

1. Treatment Unlikely to Restore Ability to Work

Allow and process the case, as usual.

2. Treatment May Restore Ability to Work

Where the DDS determines that treatment (see DI 23010.005A.4. and DI 23010.005A.5) could restore the ability to work, allow the claim. See also DI 26520.010.

3. Treatment May Restore Ability to Perform Age-Appropriate Activities—Vocational Rehabilitation Referral

In the case of a title XVI child under the age of 16, where the DDS determines that treatment (see DI 23010.005A.4. and DI 23010.005A.5.) could restore the ability to perform age-appropriate activities based on a medical or psychological consultant or consultative examiner opinion:

1. Allow the claim.

2. Annotate the SSA-1407-U4 (remarks section) with the DDS medical or psychological consultant or consultative examiner opinion. (See DI 26520.010C, DI 26520.030, and DI 55001.500.)

NOTE: In the case of a child age 16-18, where the DDS determines that treatment (see DI 23010.005A.4. and DI 23010.005A.5.) could restore the ability to perform age-appropriate activities based on a medical or psychological consultant or consultative examiner opinion, allow the claim. (See also DI 26520.010.)