TN 36 (09-15)

Citations:

20 CFR §404.1594(d)(4)(i)-(iii)

A. Policy on error on the face of the record

Find a prior determination or decision in error if the evidence shows on its face that the decision in question should not have been made. This category includes cases where evidence was misread or an adjudicative standard (such as the Listing of Impairments or the vocational rules) was misapplied.

B. Procedure for error on the face of record

In deciding whether this error category applies, consider only evidence on the record at the time of the prior determination or decision.

C. Examples of error on the face of the record

1. Epilepsy - Error

a. Comparison Point Decision (CPD)

At the time of the prior decision or determination, the adjudicator found that the individual's epilepsy met listing 11.02, which calls for a finding of major motor seizures more frequently than once a month as documented by electroencephalogram (EEG) evidence and a detailed description of a typical seizure pattern.

b. Continuing Disability Review (CDR)

Medical evidence from the treating source, at the time of the prior determination or decision, clearly showed the seizures occurred only once or twice a year. Find the prior determination or decision in error.

2. Vocational rule - Error

a. CPD

At the time of the prior determination or decision, the adjudicator found an individual disabled based on vocational rule 201.14, which applies to an individual:

• age 50-54,

• who has at least a high school education,

• whose past relevant work is skilled or semiskilled level and those skills were not transferable and

• who could perform work within the sedentary occupational range.

b. CDR

On CDR, the adjudicator finds that at the time of the prior determination or decision the individual was actually only age 46. Vocational rule 201.21 should have applied, and the case should have been a denial. Find the prior determination or decision in error based on misapplication of an adjudicative standard.

3. Breast cancer - Error

a. CPD

At the time of the prior determination or decision, the adjudicator found an individual who had a bilateral mastectomy which equaled listing 13.09. A note in file indicated that incomplete excision of the tumor was the crucial factor in the equals determination or decision.

b. CDR

At the time of the prior determination or decision, the evidence clearly showed that, although a biopsy did not completely remove the tumor, all known tumor was completely removed before the prior determination or decision.

Find that the error exception applies because the prior determination or decision was based on a misreading of the evidence.

4. Vertigo - Error

a. CPD

The claim for a 50-year-old utility company lineman was allowed on a medical and vocational basis because he could “no longer work at heights or in hazardous situations as required in his customary job.” No other impairment was alleged or discovered during medical development. The rationale did not discuss the ability to perform other work.

b. CDR

The severity of the beneficiary's vertigo remained unchanged.

c. Exception rationale

Usually, a substitution of judgment, e.g., regarding residual functional capacity (RFC), is involved in proposing to find error in prior medical/vocational decisions. The CPD was in error, however, in this case because of a unique set of circumstances. Neither the rationale nor folder reflected any attempt to evaluate “other work;” i.e., no RFC was prepared and no vocational rule cited. Additionally, there were no other impairments (even “not severe” impairments) which could form a basis for finding the beneficiary unable to do other work. The vertigo alone could not have prevented his doing all other work not involving working at heights or around machinery. The CPD was in error because of the clear misapplication (or non-application) of the other work step in the sequential evaluation process.

5. IQ 62 and back impairment - No Error

a. CPD

Met medical listing 12.05C based on an IQ of 62 and a back impairment.

b. CDR

Several medical consultants agree that currently, listing 12.05C is not met and was not met at the time of the prior decision because the back impairment (they believe) did not significantly limit work-related function as required by listing 12.05C. The evidence shows a back impairment with some limitation of function.

c. Exception rationale

Because there is no substantial evidence to show that the back impairment did not impose limitations to the extent required by listing 12.05C, application of the error exception would represent a substitution of judgment. Find the error exception not met.

6. Fistula - No Error

a. CPD

The individual had diabetes, a draining fistula, and involuntary weight loss. The draining fistula and involuntary weight loss of at least 10 percent from baseline were present on two evaluations at least 60 days apart within a consecutive 6-month period. The individual’s pain was controlled by narcotic medication. The diabetes resulted in peripheral neuropathy with numbness of both feet and diabetic retinopathy. The best-corrected visual acuity fluctuated, although the best measurement was 20/80 in each eye. The visual fields were normal. The prior determination or decision found the combination of impairments equal to Listing 5.06B for inflammatory bowel disease (IBD).

b. CDR

The current adjudicator raised the question of error because the evidence shows the individual does not (and did not) have IBD or any other disorder which would make listing 5.06 clearly applicable.

c. Exception rationale

Because of the draining fistula and weight loss, there is a reasonable relationship between the combination of impairments and listing 5.06. Do not substitute judgment. Find the error exception not met.

7. Sequential evaluation - Error

a. CPD

In a decision, an administrative law judge (ALJ) found the claimant had no severe impairment, singularly or in combination, and this finding was supported by the evidence of record. The ALJ then awarded benefits at step 5 by finding that there were no jobs that exist in significant numbers in the national economy that the claimant can perform.

b. CDR

The evidence continues to show that the claimant does not have a severe impairment.

c. Exception rationale

The CPD was in error because of the misapplication of the severe impairment step in the sequential evaluation process. The case should have been denied at step 2, and the error exception applies.

8. Inadvertent trigger of a sample case - No Error

a. Situation

The Disability Determination Services (DDS) proposed an allowance in a case selected for review. The Office of Quality Review (OQR) returned the case for additional development. DDS obtained additional evidence and again proposed an allowance. The case was forwarded to OQR, and an allowance was inadvertently triggered, releasing a notice of entitlement to the claimant. Since the individual did not file an appeal, the DDS determination became final. OQR believed the evidence supported a denial, not an allowance.

b. Exception rationale

The DDS' triggering of the proposed allowance does not constitute an error since the DDS believed the evidence supported an allowance. (A denial incorrectly effectuated as an allowance would be in error.) The DDS's favorable decision is adversely reopened only if OQR shows clear error.